Exploring Mishnah's World(s): Social Scientific Approaches [1st ed.] 9783030535704, 9783030535711

Table of contents :
Front Matter ....Pages i-xx
Introduction: Challenges and Opportunities in the Social Scientific Study of the Evidence of the Mishnah (Jack N. Lightstone)....Pages 1-23
Dignity or Debasement: The Destitute in the World of Mishnah (Simcha Fishbane)....Pages 25-61
“The Land of Israel Is Holier Than All Lands”: Diaspora in Mishnah’s Cosmos—The Message (Simcha Fishbane)....Pages 63-94
Marginal Person and/or Marginal Situation: The Convert in Mishnah (Simcha Fishbane)....Pages 95-117
Religious Authority in the Mishnah: Social Science Perspectives on the Emerging Role of Scholars (Calvin Goldscheider)....Pages 119-146
Family Structure, Kinship, and Life Course Transitions: Social Science Explorations of the Mishnah (Calvin Goldscheider)....Pages 147-180
Study as a Socially Formative Activity: The Case of Mishnah Study in the Early Rabbinic Group (Jack N. Lightstone)....Pages 181-216
When Tosefta Was Read in Service of Mishnah Study: What Pervasive Literary-Rhetorical Traits of Toseftan Materials Divulge About the Evolution of Early Rabbinic Group Identity on the Heels of Mishnah’s Promulgation (Jack N. Lightstone)....Pages 217-257
Studying Mishnah “Talmudic-ly”: What the Basic Literary-Rhetorical Features of the Talmuds’ Legal Compositions and Composite “Essays” Tell Us About Mishnah Study as an Identity-Informing Activity Within Rabbinic Groups at the End of Late Antiquity (Jack N. Lightstone)....Pages 259-306
Back Matter ....Pages 307-345

Citation preview

Exploring Mishnah’s World(s) Social Scientific Approaches Simcha Fishbane · Calvin Goldscheider · Jack N. Lightstone

Exploring Mishnah’s World(s)

Simcha Fishbane   •  Calvin Goldscheider Jack N. Lightstone

Exploring Mishnah’s World(s) Social Scientific Approaches

Simcha Fishbane Graduate School of Jewish Studies Touro College & University System New York, NY, USA

Calvin Goldscheider Maxcy Hall Brown University Providence, RI, USA

Jack N. Lightstone Brock University St. Catharines, ON, Canada

ISBN 978-3-030-53570-4    ISBN 978-3-030-53571-1 (eBook) https://doi.org/10.1007/978-3-030-53571-1 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This volume offers a collection of essays, all of which take (or advocate taking) social science approaches—sociological or social-anthropological perspectives, to be specific—to the study of the evidence of the Mishnah. While the authors wrote their contributions as individual stand-alone pieces, the impetus to bring them together in this volume stems from the authors’ participation in a thematic research unit hosted between 2015 and 2018 by the European Association of Biblical Studies (EABS). A number of scholars participated in the meetings. All made valuable contributions to the research unit’s work; some of their contributions have been revised and published in several issues of the journal, Studies in Judaism, the Humanities and Social Sciences. However, the authors whose essays appear in this volume were frequent participants in the EABS-sponsored research unit over its four-year period of operation and as such have had greater opportunity to dialogue with one another. Moreover, all three authors have spent substantial parts of their lengthy academic careers marrying their interest in social science approaches with their curiosity about the evidence from and about Jews and Judaism. These factors provided the motivation for the three of us to draw together this particular collection of our essays in one volume. How these essays, with their range and scope, speak to one another will occupy the latter half of this Preface. However, first, these prefatory remarks broach anterior matters: Why this volume’s focus is on the Mishnah, and why these authors’ commitment to promote and apply social science perspectives to its evidence? To some degree, Lightstone’s v

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methodologically oriented essay appearing as Chap. 1 in this volume addresses these questions. That said, let us deal with these questions here, upfront, and directly.

Why Mishnah? And Why Promote Social Science Approaches to the Study of Its Evidence? Why Mishnah? First, Mishnah (composed circa 200 CE) is the only surviving literary oeuvre1 written by Jews for Jews in Roman Palestine in the aftermath of the failed Bar Kokhba rebellion. The defeat by Rome of Bar Kokhba’s militia functioned as a capstone to the events of the failed “Great Rebellion” of the Jews in the Land of Israel against their Roman rulers between 66 and 71 CE. The pacification of the Great Rebellion by Roman forces resulted in the destruction in 70 CE of Jerusalem and its Temple. With the latter’s demise, many of the principal practices of “Biblical Judaism” as enjoined in the Hebrew Bible ceased, as did the social, cultural, and administrative influence and authority of Temple institutions, leadership, and personnel in the Land of Israel and beyond. The defeat about 65 years later of the rebels led by Simon Bar Kokhba meant that no imminent restoration of Jerusalem and its Temple-based institutions and cult would be in the offing. Moreover, Rome’s policy in Judea after this second rebellion was (understandably) more repressive, resulting in a significant movement of Jews out of the Judean heartland to the coastal plain and the Galilee (and beyond). These upheavals of Palestinian Jewish society also affected a subset of homeland Jews that identified themselves as followers of Jesus. There can be little doubt that until the destruction of Jerusalem and its Temple, however far the fledgling Jesus movement had spread in the Middle East and Mediterranean Lands, Christian leadership was based in Jerusalem. For this early Jesus movement, the two failed rebellions were also a crisis— not just a social, institutional, and cultural one, but equally a crisis of 1  The choice of the wording “literary oeuvre” is deliberate; since one may legitimately differentiate a literary composition, such as Mishnah, from inscriptions, letters, or transactional records, such as the Bar Kokhba Letters or the Babatha documents from the Cave of Letters in the Judean Desert. The use of “surviving” (in parentheses) hints at another caveat. We cannot know, as some scholars have suggested, whether our Mishnah is based on a proto-one no longer extant. Moreover, some early rabbinic traditions speak of other rabbis’ “mishnahs,” specifically, the mishnah of Rabbi Akiva. We cannot know what is meant by such references.

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meaning, just as it was for other Judah-ists. After all much of the early Jesus movement’s bible (the same bible as that revered by other Jews) was also rendered moot. The upshot of the foregoing is this. The latter half of the second century CE and the beginning of the third in the Land of Israel was a time of recovery and redefinition on many social, cultural, and economic planes in the aftermath of crisis and dislocation. And leaving aside early Christian authors of this period, the Mishnah is, as has been stated, the only extant written oeuvre produced exclusively by and for Jews in the Land of Israel in this period. Second, Mishnah is the earliest surviving literary oeuvre composed by and for members of the early rabbinic movement, group, guild, and/or class (whatever the most appropriate social descriptor might be) in its formative period. The early rabbinic movement underwent significant social formation, consolidation, or institutionalization in Roman Palestine near the latter part of the second century CE and the early decades of the third, precisely the time of Mishnah’s creation and promulgation. We do not know whether this early rabbinic movement exercised much power or authority in Roman-ruled Palestine in the third or several subsequent centuries. But over the next half-millennium or so, the vicissitudes of history gave the rabbis that power and authority in the Jewish communities of the Middle East and Mediterranean Lands. Mishnah was not only the early rabbis’ foundational document. It was also the early rabbinic group’s privileged object of study (after the Hebrew Bible) for some 400  years, from circa 200  CE to about 600  CE, as explained and documented in Lightstone’s essays in this volume. Culturally and socially, how can 400 years of the devoted study of a particular document as a central, core activity of a group not have significantly influenced that group’s social formation and shared identity? Third, Mishnah, a document whose subject matter is legal and normative in nature, is what social scientists would call a “thick” document. That is, it is replete with details of social, religious, administrative, juridical, and cultural phenomena for which its authors proffer rulings (or in many instances alternative rulings) in accordance with what they understand to be the demands of Torah, God’s revealed norms for Jewish life and society. Social historians and social scientists crave “thick” evidence. “Thick” social and cultural evidence is laborious to gather and, in the case of societies long past, difficult to come by altogether. So, Mishnah is a treasure trove of evidence.

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That said, Mishnah’s thick evidence is not without its problems. Since a significant proportion of Mishnah’s content is predicated on a functioning Judaic Temple in Jerusalem, and since no such institution had existed for some 130 years when Mishnah was authored c. 200 CE, it is difficult to discern precisely what in Mishnah is based on memory and what on imagination. Moreover, it is one thing to say that Mishnah was authored c. 200 CE. It is another to say that its content or the language of its bits and pieces is datable to c. 200 CE. Only professional scholarship in tradition history, literary history, and redaction history can sort out such things. So, the opportunities for research provided by Mishnah must be taken with full appreciation of the methodological hurdles attending the use of Mishnah’s evidence. Such an appreciation may mean qualifying one’s claims or shying away from some questions altogether, when “discretion is the better part of valour” (to quote “the bard”). These difficulties and cautions are more fully spelled out in Chap. 1’s methodological exposition. Fourth, it is reasonable to claim that Mishnah’s evidence represents the thinking of its circle of authors—as stated, rabbis working near the turn of the third century in Roman-ruled Galilee. What are the implications of such a claim? One, these authors, at least, believed that what appears in Mishnah belongs together as some sort of “whole cloth,” even if we may also suppose that these authors worked with antecedent sources and traditions. Two, it is clear that Mishnah’s framers refashioned these sources to fit together, using literary forms and conventions that were normative for the authors. In other words, when working with the evidence of Mishnah, one can, in some meaningful sense, argue that the evidence is not just, or is not intended to be read as, an eclectic hodgepodge. This is important for the social historian as much as it is for the social scientist. In the past, many modern scholars of Early Judaism or of Early Rabbinism have taken overly eclectic approaches to mustering their evidence, as if a piece of evidence appearing in Mishnah may be meaningfully collated with evidence that first appears, let us say, in the Babylonian Talmud edited some 400  years later. The first rule of golf is “play the ball as it lies”; all of Mishnah’s evidence lies within a single document’s literary bounds, authored or brought together and reframed by one group in a particular place and time. Let us now turn to the second question posed above. Why produce a collection of essays that calls for and models various social scientific studies of aspects of Mishnah’s evidence? Some of the answers to this question are already implicit in the responses to the first question, Why Mishnah?

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First, since Mishnah’s content is legal in nature, and since that content spans many aspects of a people living a religiously informed life together under a specified social-authority structure, Mishnah’s content is highly amenable to the types of studies that sociologists and social anthropologists would routinely undertake. As already noted, Mishnah’s evidence is socially “thick,” which is (or ought to) be catnip to social scientists. To be sure, methodological challenges abound in using this evidence, but qualifying one’s claims and carefully choosing what to do and what not to attempt will deal with these methodological issues, as intimated earlier. Second, if one were to compare the mass of historical, literary-­historical, theological, and philological studies of Mishnaic evidence (or indeed of early Rabbinic literature generally) with the volume of studies driven primarily by social science questions and approaches to Mishnah’s content, the amount of the former would far outweigh that of the latter. In other words, there is, relatively speaking, a significant dearth of studies undertaken primarily through the lens of social science approaches. It is worthwhile to redress that dearth. Why, then, has this not already happened? For a number of reasons, in our estimation. One, most social scientists work with contemporary evidence or evidence of the recent past, largely because it is more abundant and its value is easier to assess. Two, studying Mishnah requires skills and knowledge that few social scientists possess. One must command Middle Hebrew (and some early rabbinic Aramaic) to work with Mishnah in its original language. But even if one were content to work with modern translations of Mishnah, other hurdles must be surmounted. To make sense of Mishnah requires knowledge of a rather arcane system of ancient Judaic law that everywhere underlies Mishnah’s content. In addition, Mishnah’s language is crafted to be highly laconic, demanding that the reader conceptually interpolate missing bits essential to the interpretation of Mishnah passages. Three, matters of critical literary history, as noted, significantly affect the study of Mishnah’s evidence; at the very least, the social scientist needs to be aware (or constantly reminded) of these in order not to fall into methodological potholes. In sum, social science approaches to Mishnaic evidence require that its practitioners have had a “dual” schooling, or work collaboratively with those who have been schooled, in matters of critical literary history of early rabbinic texts and in matters of ancient Judaic law systems. (The three authors of this volume have bridged these scholarly divides either

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by reason of the range of their individual professional training or by reason of their conversations with one another.) Third, there is great value in understanding the range of human social experience across time and geography. For more than a century, anthropologists have studied so-called primitive societies—all of them more complex and sophisticated than the word “primitive” implies. When these societies flourished in the ancient past, physical anthropology and archaeology have combined to reveal matters. And, of course, social science approaches to the study of contemporary societies (whether “primitive” or “modern”) abound for reasons already articulated. Fewer career social scientists work with evidence from the “middle ground,” that is, from ancient societies that have left us evidence in their literatures. The reasons for this have already been spelled out. But one must state unequivocally that this state of affairs is unfortunate. And, moreover, it is a state of affairs that belies the very founding of modern social science theory and method. After all, Max Weber, one of the founders of modern sociology, developed his “ideal typology” of forms of social authority on the foundations of his reading of biblical literature. It is the authors’ hope that this collection of essays dealing with the evidence of Mishnah, a late second-/early third-­ century rabbinic legal text, will entice more scholars of a social-science bent to enter this “middle ground” of research.

The Range and Scope of This Volume’s Essays and the Authors’ Conversation As stated, this volume reflects a project to encourage, and to propose and model conceptual and methodological frames for, social science approaches to the study the Mishnah. That framing is one that takes account of the historical and literary-historical issues that impinge upon the use of Mishnah for any scholarly purpose beyond philological study, including social scientific examination of Mishnaic materials. Based on that framing, articulated principally in Chap. 1, each subsequent chapter pursues, with appropriate methodological caveats, an avenue or avenues of inquiry open to the social scientist, providing examples of how to bring to bear on the evidence of Mishnah social scientific questions and modes of inquiry. The chapters authored by Fishbane and Goldscheider bring typical sociological and social-anthropological categories to bear on Mishnah’s “ideal vision for” a Jewish social world articulated via Mishnah’s legal

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prescriptions and proscriptions. To understand what these chapters undertake, one must appreciate the methodological import and implications of describing Mishnah’s content as founded upon an “ideal” social vision. This Preface will return to precisely this issue later. The chapters authored by Lightstone model a very different type of social scientific approach to the evidence of the Mishnah, by focusing on Mishnah as a highly valued cultural object; that value was socially enacted in devotion to Mishnah study as a core, socially formative group activity among early rabbinic circles. In these chapters, the concepts and methods of socio-rhetorical analysis are brought to bear on the evidence, and the chapters’ interests lie in uncovering elements contributing to shaping the social formation, social identity, and normative skills of the early rabbinic group as a self-defining, self-promoting, quasi-professional elite within Palestinian and Babylonian Jewish societies. While the foregoing summarizes the scope and content of this volume’s chapters, it does not suggest how to read them. There are three ways of reading this volume’s essays from Chap. 2 through to the volume’s conclusion. One, these chapters may be read as a set of thematically linked, independent studies that may each be taken on its own as an example of what it might mean to approach the evidence of the Mishnah with a social science lens. In such a reading of this volume, Chap. 1 may be viewed as having elicited ten discrete contributions. Two, in the remaining chapters, each of the three authors, Fishbane, Goldscheider, and Lightstone, have canted their approaches to the evidence of the Mishnah differently. And it is useful to read this book in that light. For instance, Goldscheider’s recent studies (some presented in this volume and others presented elsewhere) on Mishnah have tended to adopt social-analytic categories that find some correspondence in Mishnah’s own topical divisions—Mishnah’s thematic “orders” and topical “tractates.” One can, and perhaps should, read this as a methodological choice made by Goldscheider, since in social science research one is always faced with the prospect of whether one is inappropriately imposing interpretive categories on the evidence rather than allowing those categories to emerge from the evidence. There is, in principle, room for both in social scientific inquiry, but there are prices to pay for leaning too far in one direction or another. If categories are simply those articulated by the evidence itself, then one risks engaging in (mere) description with little analytic and conceptual power to view that evidence in light of analyses of other groups

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and cultures in order better to understand what it has meant for humans to be social beings who socially construct worlds for themselves. At the opposite extreme, the imposition of overly “foreign” interpretive or analytic categories on the evidence of a group risks obscuring the nature of their social order and world—in seriously misrepresenting them. Goldscheider’s work on Mishnah, then, tends to capitalize on the fact that Mishnah’s own categories for ordering and developing its legal materials often closely correspond to typical interpretative and analytic categories of sociologists such as himself. What now of Fishbane’s chapters? His work on Mishnah (again, presented here and elsewhere) also has used normative sociological and anthropological interpretive and analytic categories in examining Mishnah’s evidence, but in so doing he has not restricted himself by staying within the lines drawn by Mishnah’s own literary thematic and topical divisions and subdivisions. Rather, Fishbane explores themes of sociological or anthropological import, for which there is evidence in Mishnah, even if this evidence may be dispersed across several of Mishnah’s tractates. Nonetheless, he can often justify his enterprise methodologically by appealing to the fact that Mishnah frequently uses standard nomenclature, used across the Mishnah’s topical and thematic divisions for these socially relevant notions and values. So, for Fishbane, it is legitimate to study the range of uses of Mishnah’s own appeal to such notions. He may ask about how they are used across the expanse of Mishnah’s tractates. Lightstone has opted not to conduct sociological or anthropological analysis of Mishnah’s ideal world. Rather, he examines Mishnah as an important social and cultural artifact of the early rabbinic movement, in light of the fact that the devoted study of Mishnah was a core activity within early rabbinic circles. Therefore, in his view, Mishnah’s dominant traits, confronted regularly by the devoted Mishnah student, may tell us something of the core values, expected profile, core skills, and shared identity of this nascent quasi-professional movement in the Roman and early Byzantine periods. His justification for so using the evidence of the Mishnah is based on three claims. First, Mishnah is the first literary oeuvre both authored by and promulgated as authoritative in the early rabbinic group. Second, in addition to the Hebrew Scriptures themselves, Mishnah remained the primary object of devoted rabbinic study undertaken as a core activity that defined one as a member of the rabbinic group or guild for nearly 400 years. Third, a number of subsequent early rabbinic literary oeuvres produced during that 400-year period may be read (in part) as

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models for (if not reflections of) ways of studying Mishnah and therefore tell us something about both the continuity and development of core aspects of shared rabbinic identity and expected competencies. As stated earlier, Lightstone’s methods are adapted versions of socio-rhetorical analysis—that is, adapted by him for use in the examination of early rabbinic legal texts. Three, and in light of (and following from) the foregoing paragraphs, the studies of this volume may be read as a dialogue of sorts between Fishbane, Goldscheider, and Lightstone, sparked and conditioned by prolegomena proffered in Chap. 1 by Lightstone. Mishnah is replete with evidence of a social nature because (1) it is primarily legal in content and (2) it encompasses norms for social, organizational/administrative, and ritual life—realms that were not as highly differentiated in premodern societies as they are today. But as Lightstone has pointed out in Chap. 1, it is difficult to discern when Mishnah’s evidence reflects (1) contemporary social norms, practice, and values of late second-century Jewish society in the Land of Israel, (2) more or less accurate cultural memories of Jewish society in the Land of Israel in the period or periods preceding the late second century, or (3) Mishnah’s vision of an “ideal” Jewish society founded on early rabbis’ understanding of the norms of the life lived together with others in accordance with the demands of the Torah. There is little doubt that there are elements of the first two in Mishnah, all contained within an encompassing frame of material that represents the third, the ideal vision of Mishnah’s early rabbinic framers. Sorting out what precisely in Mishnah may be assigned to each of these three rubrics is, one, difficult, and, two, not a task for which social scientists per se are equipped. It is, rather, a task for social historians and literary historians. As noted earlier in this Preface, some scholars have the training and expertise that span these disciplines and the social sciences. Most do not bridge these divides. Alternatively, social scientists may work closely with social historians and literary historians with expertise in rabbinic texts and in the study of Early Judaism and Jews. But as Chap. 1 points out, even bridging these disciplinary divides is not enough, because social historians and literary historians themselves have not yet come to a consensus view on what materials in Mishnah fall into which of the aforementioned three categories. For these reasons, Chap. 1 outlines three different, broadly defined options for the social scientific study of Mishnah’s evidence: (1) the study of late second-century Jewish society in the Land of Israel; (2) the study of the “ideal” society underlying Mishnah’s legal content; (3) the study of

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Mishnaic evidence to shed light on aspects of the sociology or anthropology of the early rabbinic group itself. Chap. 1 points out that each of the three avenues requires attention to different methodological strictures and challenges. The first necessitates sorting out what in Mishnah are more or less accurate reflections of contemporary late second-century society, what are more or less accurate historical and cultural memories, and what is ideal construct. The second approach takes Mishnah’s “ideal” frame as the methodological fulcrum; if everything is framed within the rabbis’ ideal vision, let us examine the ideal as social scientists. This second approach allows one to sidestep or finesse the historical issues attending to the first approach. The third approach lies somewhere in between. It invites the social scientific study of a “real” group, the early rabbis who produced the Mishnah and were devoted to its study; as such the approach avoids some but not all of the historical challenges imposed upon those adopting the first avenue. In this volume, Fishbane and Goldscheider, notwithstanding their different cants, have followed the second avenue. In fact, in their conversations together, the authors needed to continuously remind one another that they were not adopting the first avenue and needed to avoid making claims that might appear to the reader that they were. Lightstone has opted for the third avenue, using the methods and concepts of socio-­ rhetorical analysis to do so. This has allowed him to deal with certain aspects of the sociology of the early rabbinic group. (Bracketing other aspects that might have drawn him into the constraints of avenue one; for instance, had Lightstone sought to examine the role of the rabbinic group or its members in contemporary Jewish society he would have been tredding along the first avenue.) In the end, none of the authors had the temerity (this time) to adopt avenue one. The underlying dialogue between and among these chapters, then, has not only to do with choosing categories for social analysis that are neither too close nor too far from the evidence to serve an analytic purpose. Fishbane, Goldscheider, and Lightstone are also in dialogue about whether, or to what degree, to ensnarl their social scientific inquiry in historical and literary-historical questions. Some social scientific questions posed to Mishnah’s evidence require delving into the latter more than others. New York, NY, USA Providence, RI, USA St. Catharines, ON, Canada

Simcha Fishbane Calvin Goldscheider Jack N. Lightstone

Acknowledgments

This volume would not have been written without the European Association of Biblical Studies agreeing to host the research unit, “Sociological and Anthropological Approaches to the Study of the Evidence of the Mishnah” at the EABS’ annual meetings from 2015 to 2018. The authors thank the EABS and all participants in the research group. Earlier versions of some of our essays, and those of other participants in the EABS research group, were published in several issues of the journal, Studies in Judaism, the Humanities, and Social Sciences. We are grateful for the journal’s support and for their permission to bring some of these essays together in revised form in this volume. During the period in which Lightstone composed the initial essays that underlie his four chapters in this volume, he was also involved in writing an introductory guide to early rabbinic legal rhetoric and literary conventions. Since his approach in this volume relies on socio-rhetorical analysis of Mishnah and its post-Mishnaic legal literature, it is understandable that his work for this volume and for the other are parallel enterprises with mutually informing moments. In particular, the studies revised for publication here as Chaps. 7, 8, and 9 substantially inform the content and language of the concluding chapter of the other book, In the Seat of Moses: An Introductory Guide to Early Rabbinic Legal Rhetoric and Literary Conventions (Eugene, OR: Cascade/Wipf & Stock and the Westar Institute, 2020), even though the two volumes are very different in orientation, purpose, and intended readership. We are grateful for both books’ publishers, Palgrave Macmillan and Cascade/Wipf & Stock/Westar, for allowing and facilitating this cross-­fertilization of the two volumes. xv

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Finally, we are greatly indebted to Palgrave Macmillan for support and professionalism in bringing this volume to press. Our thanks go especially to Phil Getz in their US office for shepherding us through the process and believing in the value of this volume’s studies to a scholarly and reading audience. The authors of this volume have in some cases known each other for many years and in other instances have forged a relationship only since 2015. This is our first co-authorship of a volume, and we celebrate our partnership. “The three-stranded rope is not quickly broken” (Eccl. 4:12).1

1  Simcha Fishbane would like to acknowledge and thank Professor Herb Basser and Dr. Lynn Visson for their assistance and valuable input in preparing my chapters. I would like to thank Academic Studies Press for sponsoring four editions of the journal Studies in Judaism, Humanities, and the Social Sciences of which I am the editor and chief and where many of the chapters have been published. The authors all would like to acknowledge Ms. JoAnn Kestin, Mrs. Carrie Goodstein, and Yosef Robinson for their assistance in bringing this book to Press.

Contents

1 Introduction: Challenges and Opportunities in the Social Scientific Study of the Evidence of the Mishnah  1 Jack N. Lightstone Outline of Our Programmatic Introduction   3 Why Is It Important to Seek to Know More About Palestinian Jewish Society and Culture in the Latter Half of the Second Century and Early Third Century CE?   5 Why Turn to the Evidence of the Mishnah?   9 Mishnah’s Most Pervasive Rhetorical and Literary Traits, the Basis for Methodological Challenges and Choices in the Use of Its Evidence  12 Three Potentially Compelling Topical Directions of Inquiry in the Sociological and Anthropological Study of Mishnah’s Evidence  20 2 Dignity or Debasement: The Destitute in the World of Mishnah 25 Simcha Fishbane Introduction  25 The Support of the Poor  30 The Status of the Poor Person  30 Giver or Receiver? The Focus of Mishnah Peah  36 Care and Compassion  38 Personality Traits of Mishnah’s Poor  49 Concluding Remarks  56

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3 “The Land of Israel Is Holier Than All Lands”: Diaspora in Mishnah’s Cosmos—The Message 63 Simcha Fishbane Introduction  63 Mishnah  64 The Sociology of Space  66 The Land of Israel in Mishnah  68 Diaspora  72 Summary  76 Summary  87 Summary  92 Concluding Remarks: The Message  92 4 Marginal Person and/or Marginal Situation: The Convert in Mishnah 95 Simcha Fishbane Introduction  95 Theoretical Framework  96 Mishnah  99 The Convert’s Status and Literacy in Mishnah  99 From Gentile to Jew: A Transitional Situation 102 Concern and Compassion 106 Inheritance 108 Preserving the Holy Seed 110 Past Culture or Stigma 112 Principles of Halakhah and Biblical Marginality 114 Concluding Remarks 116 5 Religious Authority in the Mishnah: Social Science Perspectives on the Emerging Role of Scholars119 Calvin Goldscheider Searching the Mishnah for Evidence 120 Core Questions 122 Social Science Guidelines 124 The Identification of Rabbis/Scholars in the Status Hierarchy 126 Legitimating Rabbinic Authority 130 Multiple Paths to Legitimacy 131 The Emergence of Disputes and Disagreements Among the Rabbinic Elite 133

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Generational Transmission of Authority 136 Consequences of Scholarly Disputes 138 The Power of Local Custom and Memory of Temple Practices 141 Concluding Thoughts 143 6 Family Structure, Kinship, and Life Course Transitions: Social Science Explorations of the Mishnah147 Calvin Goldscheider Family Themes: Preliminaries 149 Family Formation: Marriage and Kiddushin 155 Yibum, Generational Continuity, and Kinship Relationships 157 Reproduction 160 Intermarriage and Marriage Regulations 161 Age Variation for Defining Girls (Women) 165 Marital Obligations and Rights 167 Rights of Widows and Stepchildren/Stepparents 170 Control over Daughters 172 Sotah 173 Divorce: The Dissolution of Marriage 176 Concluding Thoughts 178 7 Study as a Socially Formative Activity: The Case of Mishnah Study in the Early Rabbinic Group181 Jack N. Lightstone Contextual Elements: Text, Study, and Occupational Groups in Ancient Judaic Societies 185 Contextual Elements: Sage and Scribal “Classes” in Middle Eastern and Eastern Mediterranean Societies of the Greco-Roman Period 189 Mishnah Study and Early Rabbinic Social Formation, a Case Study 192 Extra-Mishnaic, Early Rabbinic Evidence for the Centrality of Mishnah Study to the Inner-­Group Life of the Early Rabbinic Social Formation 193 Intra-Mishnaic Evidence and the Nature of Inner-­Group, Normative Traits Modeled and Re-enforced by Mishnah Study 197 Macro-Literary Traits: Mishnah’s Topical Agenda and Scripture 198 Micro-Rhetorical Traits: Inculcating “High-Grid” Taxonomical Vision 204 Conclusions 214

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8 When Tosefta Was Read in Service of Mishnah Study: What Pervasive Literary-­Rhetorical Traits of Toseftan Materials Divulge About the Evolution of Early Rabbinic Group Identity on the Heels of Mishnah’s Promulgation217 Introduction: The Question at Hand 217 Recalling Conclusions Based on the Evidence of Mishnah 217 The Task at Hand: The Evidence from Tosefta and the First Developments of a Post-Mishnaic Social Identity Within the Early Rabbinic Social Formation 222 Underlying Historical Premises for This Study’s Approach 225 What the Toseftan Evidence, Considered In Situ, Shows: Prefiguring This Study’s Findings 228 Tosefta’s Literary-Rhetorical Traits as a Model of/for Mishnah Study 230 Tosefta’s Macro Traits: Agenda and Organization 230 Tosefta’s Intermediate Level, Literary-Rhetorical Traits 235 Tosefta’s Micro-Level Literary-Rhetorical Traits 244 Concluding Observations 254 9 Studying Mishnah “Talmudic-ly”: What the Basic LiteraryRhetorical Features of the Talmuds’ Legal Compositions and Composite “Essays” Tell Us About Mishnah Study as an Identity-Informing Activity Within Rabbinic Groups at the End of Late Antiquity259 Introduction: Questions and Targeting a Specific Type of Evidence in Response 259 Some Core, Pervasive Literary-Rhetorical Traits of the Yerushalmi’s and Bavli’s Legal Compositions 268 The Literary-Rhetorical “Interrogative Drivers” of Compositions in Yerushalmi and Bavli 274 Take, for Example, These Two “Parallel” Composite Essays from the Yerushalmi and Bavli 279 What Has Happened to Mishnah Study in Studying It “Talmudic-ly” as an Identify-Forming Activity Within the Rabbinic Movement? Some Observations and Proposals 300 Index307

CHAPTER 1

Introduction: Challenges and Opportunities in the Social Scientific Study of the Evidence of the Mishnah Jack N. Lightstone

This chapter1 is intended to be a call to renew the scholarly study of the evidence of the Mishnah, but from decidedly social scientific perspectives. The call, roughly in this form, was first issued in 2015 at the meetings of 1  This paper is a (lightly) revised version of my article entitled: Jack N. Lightstone, “Sociological and Anthropological Approaches to the Study of the Evidence of the Mishnah: A Call to Scholarly Action and a Programmatic Introduction,” Studies in Judaism, the Humanities and the Social Sciences 2 (2019): 1–16. It is published here in this version with a new title and with the permission of the journal, to whom I am grateful. The journal article, as do most published journal articles, stands among those of other authors’ works on diverse topics falling within the journal’s broad mandate. In this version, the essay, newly titled, appears once more among contributions with which it shares a common theme. My use of the language “once more” requires some explanation. This volume’s essays share a common origin and inspiration, the work of a research group hosted by the European Association of Biblical Studies (EABS) between 2015 and 2018, bearing the moniker, Sociological and Anthropological Approaches to the Study of the Evidence of the Mishnah. And the current paper, or rather the earlier journal article that bore the title of the EABS research group, was the first paper presented to the research group in 2015, offering, as it were, a mandate for

J. N. Lightstone (*) Brock University, St. Catharines, ON, Canada © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_1

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the European Association of Biblical Studies (EABS). And most of the studies in this volume have a common origin; they are a subset of the papers presented between 2015 and 2018 at the EABS in direct response to that call. In their current versions they illustrate the variety of approaches and topics that may come under the umbrella of social scientific approaches to the study of Mishnah’s evidence, but by no means even begin to exhaust the range or boundaries of such work. The modern study of ancient Judaism has always shown a sustained interest in Mishnah,2 the first authoritative text produced and promulgated by the early rabbinic movement near or soon after the turn of the third century CE. Mishnah, on its own, or together with other early rabbinic texts, has been the object of literary-critical and historical analysis,3 with much debate having ensued around fundamental and difficult participants and as a call to others who might wish to join us. Perhaps it will play a similar role yet again in its new venue in this thematic volume. I wish to express my thanks to the EABS for its sponsorship of the research group, in particular to Prof. Ehud Ben-Zvi, who persuaded me to form the group and soon thereafter as president of the EABS continued to encourage its work. I also wish to thank the co-chair of the group Prof. Simcha Fishbane, as well as its most stalwart participants, including Profs. Calvin Goldscheider, Shaye J.D. Cohen, Tirzah Meacham, Harry Fox, Michael Satlow, Eyal Baruch, Lennart Lenhaus, and Naomi Silmann. 2  Abraham Geiger’s work on Mishnah in the mid-nineteenth century represents one of the earliest such efforts. His “Lehr-und Lesebuch zur Sprache der Mischnah” was published in 1845 in the journal, Jüdische Zeitschrift für Wissenschaft und Leben, that he himself edited. See David Weiss Halivni, “Abraham Geiger and Talmud Criticism,” in New Perspectives on Abraham Geiger, ed. Jacob J.  Petuchowski (New York: Hebrew Union College-Jewish Institute of Religion, 1975), 31–41. Similarly, Zachariah Frankel founded the academic journal Monatsschrift für Geschichte und Wissenschaft des Judenthum in 1871, and among his major works are Darkhey HaMishnah, first published in 1859, and reprinted as Darkhey Ha-Mishnah, Ha-Tosefta, Mekhilta, Ve-Sifre (Tel Aviv: Sinai, 1959). Geiger and Frankel, and others like them, straddled the worlds of religious community and academic study; their academic work was undertaken within a context of reforming and modernizing traditional rabbinic Judaism, because they largely shared the conviction that rigorous historical study would legitimize and underpin this modernization against the inertial counterforce of tradition. 3  For example, exemplary of literary-historical criticism of Mishnah is the classic masterpiece of J.N. Epstein, Mavo le-Nusah haMishnah, 2 vols. (Jerusalem: press not specified, 1948), to which one should add his equally influential, posthumously published, Mavo leSifrut ha-Tannaim (Jerusalem: Magnes Press, 1957), and Mavo le-Sifrut ha-Amoraim (Jerusalem, Magnes Press, 1962), both of the latter two works edited by E.Z. Melammed from Epstein’s manuscripts. As to the use of Mishnah’s evidence, on its own or in combination with that from other early rabbinic documents, I shall have more to say later in this paper.

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methodological issues. Social scientific, and specifically sociological and anthropological, inquiries and approaches to Mishnah’s evidence have been, relatively speaking, less pursued. This paper both invites such inquiries and suggests three broad topical rubrics for further scholarship, after surveying some of the commonly discussed methodological challenges that will impinge upon such work.

Outline of Our Programmatic Introduction It is expected that those who have responded, or will respond, to this chapter’s call share a “hunch” that is not yet a well-supported conclusion—namely, that the early Palestinian Rabbinic document called the Mishnah proffers important, but still underutilized, evidence for the understanding of Palestinian Jewish society and culture in the latter half of the second century CE and the first half of the third century. Consequently, an anticipated aspect of the scholarship for which this chapter provides prolegomena is to explore that hunch in order to (1) indicate whether, how, and to what degree the hunch warrants being restated as a strong, well-supported claim and (2) provide, where appropriate, cogent examples of reconstructing social and cultural aspects of Palestinian Jewish life, and social and cultural constructs representative of the era under scrutiny on the basis of Mishnaic evidence (taken on its own or, when appropriate methodologically, in conjunction with cognate evidence). But is it not strange that a document, the Mishnah, which has been extant for about 1800  years, that has been studied continuously within Rabbinic-Jewish circles since its production, and that has also been analyzed within early modern and modern academic circles since the 1840s4 should be deemed in the second decade of this twenty-first century to be still-underutilized, albeit important, evidence for the society and culture within which it first emerged? How can this be? The answer to the first question is: Not so strange as one might think, when one has a flavor for the answer to the second question, which will come to light as I proceed through this paper. What, therefore, this essay seeks to achieve is several-fold. First, it strives to provide some preliminary indication of why one might come to share the hunch that Mishnah’s evidence ought to be plumbed to 4  See especially the articles in Jacob Neusner, eds., The Modern Study of the Mishnah (Leiden: Brill, 1972).

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learn more about Palestinian Jewish society and culture in the period that Mishnah was produced, plus or minus 50 (to 100) years. There are two subtopics related to this first task. One is to give some heuristic indication that knowing more about this period in Palestinian Jewish society and culture is something that ought to be of greater scholarly interest—not only for those who specialize in the academic study of this place and time, but also for scholars with cognate interests and areas of specialty. The other is to give some indication as to why scholars should turn to Mishnah. Second, this chapter rehearses some of the more overarching (and by now, often recognized) challenges encountered in using Mishnaic evidence for the purposes indicated. This second undertaking aims to provide at least a general understanding of why the evidence of Mishnah will have remained underutilized to date. That is, it provides a preliminary answer to the earlier question, “How can this be?” Again, two subtopics will be addressed. I provide a very brief survey of Mishnah’s most pervasive literary and substantive traits, since it is these that underlie the challenges faced when using Mishnaic evidence for our purposes. The chapter then spells out some of those challenges, by way of example. The interface between these two subtopics has much to do with how one chooses to account historically for how and why Mishnah came to be produced and to have the most pervasive traits that we observe. Third, this chapter will outline in broad terms the three potentially most compelling questions or topical directions of inquiry for the study of Mishnah’s evidence called for in this programmatic chapter. Perhaps, it would be more accurate to say that there are three logical avenues or topical directions that one might take. They are: 1. to try to use the evidence of Mishnah to tell us more about Palestinian Jewish social and cultural constructs generally in the era in question (roughly, the second and early third centuries CE); 2. to analyze Mishnah to understand the social and cultural dynamics of the specific Palestinian group that produced, and thereafter studied, Mishnah as an authoritative text, namely the early Palestinian Rabbinic group; and 3. to study Mishnah’s evidence in order to describe the social and cultural “world” that is imaginatively created by, and within, the document by its framers, but which may describe no historical Jewish society and culture.

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All three of these avenues of inquiry should bear fruit; each will provide important insights about Palestinian Jewish society, culture, or social “visioning” in the Roman imperial period. But it is not the case that they are, or will be, equally fruitful. Why? Because they are not all equally fraught with methodological and conceptual challenges, as I shall indicate. In the final analysis, only from the work of those who respond to this chapter’s call will it become clearer which avenue, relatively speaking, bears more fruit, and with what level of significant qualifications and caveats. Moreover, one outcome will be to highlight that scholars legitimately differ with respect to how fruitful each of these avenues of inquiry are, because, first, they disagree concerning the levels at which the qualifications and caveats should be set on the “dial” of the “warning meter,” and, second, they will differ about the kind and degree of mitigation strategies that may be used to reduce such methodological difficulties. Such is the outline of this introductory chapter. Now to the task at hand.

Why Is It Important to Seek to Know More About Palestinian Jewish Society and Culture in the Latter Half of the Second Century and Early Third Century CE? Arguably, it is a historically cogent hypothesis that Jews in Palestine immediately prior to the era in question experienced significant social and cultural (including religious) dissolution and dislocation. Let me “play off of” the influential work of Seth Schwartz at several junctures in the arguments that follow. Schwartz5 in particular has argued that the first two-­ thirds of the first century CE represent the slow decline into ever more pronounced social and political chaos in Roman Palestine, especially for the Jews of Palestine, in the aftermath of Herod’s reign. With Herod’s kingdom divided in three, and distribution of authority spread across multiple players (e.g., local Roman authorities, the vestiges of Herodian-­ Hasmonean royals, local aristocratic families that emerged during the Hasmonean and Herodian periods, authorities in and associated with the  Seth Schwartz, The Ancient Jews: From Alexander to Muhammad (Cambridge: Cambridge University Press, 2014), chapters 3, 4, and 5; see also Seth Schwartz, Imperialism and Jewish Society, 200 BCE to 640 CE (New Haven: Princeton University Press, 2001). 5

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Jerusalem Temple, and the nearby more highly ranked Roman governor of Syria) and with growing tension between Jews, Greeks, and Syrians in the Land of Israel, matters went from bad to worse, Schwartz argues. Then, as is well known and widely acknowledged, the years from 66 CE to 135 CE brought multiple, catastrophic upheavals. In the Land of Israel, the Great Revolt (66–71) and the Bar Kokhba Rebellion (132–135) were disastrous for the Jews of Palestine. In the second decade of the second century CE, the malaise resulting from the failed Diaspora Rebellion of Jews in Egypt, adjacent North Africa, and Cyprus (and probably independently and to a more limited extent in Syria) may also have spilled over into Palestine to some degree. The more pronounced social and cultural shock to the well-established Jewish communities of the Roman Diaspora seems to have been primarily limited to Jewish communities in Egypt and immediately adjacent North Africa, which did not recover, according to Seth Schwartz, until the fourth century. The remainder of the Jewish Diaspora seems largely to have ticked along reasonably well. Not so in the Land of Israel, and especially Judea. The Jewish population of Judea was significantly “thinned” in the aftermath of the failed Bar Kokhba Rebellion. What remained of Jewish life, society, and culture to be rehabilitated in the Land of Israel was concentrated on the coastal plain and the Galilee. How long and how steep the incline that had to be mounted to recovery depends on how deep one thinks the hole was dug.6 Yet for all of this, if one takes the very “long view,” the developments within Judaism and Jewish society of Roman Palestine during the second and third (and fourth) centuries CE ultimately proved to be among the more seminal in the subsequent history of Judaism and of the Jewish communities in the Middle East, North Africa, and Europe, through Late Antiquity and the Medieval Periods, indeed into the modern period itself. There and then, in the several centuries following the destruction of Jerusalem Temple and the two failed revolts against Roman hegemony, the early rabbinic movement coalesced correlatively with the establishment—or perhaps “recognition” is the more appropriate term—by Roman authorities of the Jewish Patriarchate in the Roman Levant.7  Seth Schwartz sees it as far more profound than some others might.  See Lee I. Levine, “The Jewish Patriarch (Nasi) in Third Century Palestine,” Aufstieg und Niedergang der roemischen Welt, II, 19.2, ed. H. Temporini and W. Haase (Berlin and New York: de Gruyter, 1979), 649–688; “The Status of the Patriarchate in the Third and 6 7

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One general, historically defensible scenario for the development of the early rabbinic movement is this: from what in all likelihood was a state of relative insignificance at its earliest inception—sometime between 70 CE (the Destruction of the Jerusalem Temple and of its “national” administration) and 135 CE (the failed Bar Kokhba Rebellion and the Hadrianic Persecutions)—the early rabbinic movement developed and institutionalized to the point, sometime in the latter decades of the second century and the first half of the third century CE, of aspiring to provide, probably in competition with other administrative literati, a cadre of retainers for the Jewish Patriarch’s administration.8 Within another 100–150 years, the rabbis, or some rabbis, were likely among the cadre of scribal-­administrative personnel providing the same service for the government of the Jewish Exilarch in Persian Babylonia.9 And within 200 years of the mid-seventh-­ century Muslim conquest of the Middle East, the rabbis were increasingly recognized as chief legal and religious authorities in the Jewish communities of the lands that ringed the Mediterranean. Another scenario outlines a similar trajectory, but with a later start. It places the prominence of the Palestinian Jewish Patriarchate and the emergence of (aspiring?) rabbinic retainership in the Patriarch’s administration in the latter half of the third century, reaching its apex only in the fourth century.10 Whether one scenario or another is better supported, the upshot is the same. Social and cultural developments among the members of an early rabbinic movement or guild, emerging in the Land of Israel in the latter half of the  second and early  third centuries from a battered social and Fourth Centuries: Sources and Methodology,” Journal of Jewish Studies 47 (1996): 1–32. See also Jeffrey L.  Rubenstein, The Culture of the Babylonian Talmud (Baltimore and London: Johns Hopkins University Press, 2003), 95–97. See also Martin Goodman, “The Roman State and the Jewish Patriarch,” in The Galilee in Late Antiquity, ed. Lee I. Levine (New York: Jewish Theological Seminary, 1992), 127–39; Lee I. Levine, The Rabbinic Class of Roman Palestine in Late Antiquity (Jerusalem: Yad Izhak Ben-Zvi and New York: Jewish Theological Seminary, 1989). 8  See Levine, The Rabbinic Class. 9  See Jacob Neusner, A History of the Jews in Babylonia, 5 vols. (Leiden: Brill, 1966–69); see especially vols. 4 and 5. To date, Neusner’s five-volume work on the Jews and Rabbinism in pre-Muslim, Persian Babylonia is still the most ambitiously comprehensive. 10  This is the view promoted by Seth Schwartz in Ancient Jews. In his view, rabbinic stories about the prestige of the Palestinian Jewish Patriarchate are anachronistically placed in the second century in order to bolster the institution’s legitimacy and to bolster rabbinic legitimacy as a result.

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cultural landscape, ultimately (sometime after the early spread of Islam), exerted a major steering force in later centuries across every Jewish community in the Mediterranean, European, and Middle Eastern lands. Permit me to clarify, but also to qualify, that claim. Elsewhere, I have vigorously rejected the thesis that the rabbis “saved” Judaism in the aftermath of the events of 70 CE by their creation of “a Judaism without a Jerusalem Temple.” There can be no doubt that vital forms of Judaism and Jewish life had developed apart from the Templebased religious, political, and social systems both before the advent of the rabbis, and subsequently apart from and in parallel with the rabbinic movement’s early development, particularly in the many significant Diaspora communities of the Middle East and Mediterranean basin during the Roman and Byzantine periods.11 By the first century CE, some of these “diaspora Jewish” institutions were well established in the Land of Israel.12 However, that said, in gradually acquiring positions of increasing authority and legitimacy—first in Roman Palestine, and subsequently in Persian Babylonia and beyond—over the course of 500 to 850 years, the members of the rabbinic movement, “the rabbis,” came to influence, reshape, or codify substantially the legal, organizational, ideological, and liturgical-ritual framework of what were in many instances, before rabbinic hegemony, already longstanding and well-defined institutions of Judaism, of Jewish community organization, and of the daily life of Jews and their households in the Mediterranean and Middle Eastern world.13 11  J.N. Lightstone, “Roman Diaspora Judaism,” in A Companion to Roman Religion. Blackwell Companions to the Ancient World, Vol. 9, ed. Jörg Rüpke (Oxford: Blackwell, 2007), 345–77. See also J.N. Lightstone, “Is it meaningful to talk of a Greco-Roman Diaspora Judaism? A case study in taxonomical issues in the study of Ancient Judaism,” in Introducing Religion: Essays in Honor of Jonathan Z. Smith, eds. W. Braun and R. McCutcheon (London: Equinox Publishers, 2008), 267–81. See also J.N. Lightstone, The Commerce of the Sacred: Mediation of the Divine among the Jews in the Greco-Roman Diaspora (Chico, CA: Scholars Press, l984). Second Edition, with a foreword by Willi Braun and updated bibliography by Herbert Basser (New York: Columbia University Press, 2006). 12  See, for example, Lee I. Levine, The Ancient Synagogue, the First Thousand Years (New Haven and London: Yale University Press, 2005). 13  Indicative of this centuries-long trend is the Epistle of Rav Sherira Gaon. Writing in the ninth century, Sherira’s monumental attempt to (re)construct a history of the rabbinic movement and of its principal texts is fashioned as a response to questions posed by the elders of the Jewish community of Kairouan. In the latter community, rabbinic authority was being challenged by its detractors, and Sherira’s history affected a defense of rabbinic authority by establishing its pedigree and the pedigree of early rabbinic literature. The challenge only makes sense in a context that the rabbis had achieved a position of dominant legal and reli-

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But I am getting too far ahead of myself and beyond the topic at hand, the crucible of Palestinian Jewish society and the early rabbinic movement in the second and third centuries CE. My point is simply this: what happened in that crucible had, over considerable time, long-lasting and substantial effects. We would do well to understand better the social and cultural dynamics and developments within the crucible. So, what is the evidentiary basis for such an understanding, such that we would give special attention to the evidence of the Mishnah?

Why Turn to the Evidence of the Mishnah? The problem at hand is this: while we have many reasons to surmise that the second and early third centuries in Roman Palestine were seminal for subsequent social, cultural, and religious development of Palestinian Jewish communities (and later of Jewish life beyond the boundaries of Roman Palestine), it has been and remains a difficult task historically to reconstruct the sociology and anthropology of Palestinian Jewish communities and groups of this important transitional period. What do we know of the social and cultural developments and dynamics among Jews of Roman Palestine generally, or of the early rabbinic movement specifically, in the last six decades or so of the second century and the first five decades or so of the third century? More importantly, on what basis do we think we know it? Obviously, as the title of this chapter signals, I am advocating a focused and sustained look at the evidence of the Mishnah in response to these questions. But to understand why, permit me briefly to rehearse the other types and sources of evidence available to us. In the face of such questions, one may point to important archaeological evidence for the Land of Israel (and immediately adjacent locales) for the years preceding, during, and subsequent to the time period of interest to us. However, two points are critical to our assessment of the value of this evidence. One has to do with the most general pattern of extant evidence: for what years do we have what types of material remains? The other point is an overriding methodological consideration. gious authority in North Africa, with eyes turned to the major rabbinic academies of the Babylonian plain for superior, authoritative pronouncements. To give added weight to his response, Sherira explicitly states that he consulted the major luminaries associated with the academy that he led, attesting, thereby, to an established and well-recognized authority structure within the institution.

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Archeological evidence is arguably much more abundant for the period subsequent to the 100–150 or so years that is our focus. So much so that we are often left to speculate about whether institutions well documented in, let us say, the fourth or fifth century had the same shape and texture in the second and early third centuries.14 Then there are writings that proffer claims about Palestinian Jewish life, institutions, and belief systems in our period of interest. These writings are both from contemporary authors and from works of the latter half of the third century and later. The contemporary works are from non-Jews, both Roman and especially Christian authors. In the former instance, the substance is much too thin to help us much in our specific task. In the latter instance, the writings of Christians, writings usually are narrowly focused and understandably highly tendentious, as Christianity struggles for legitimacy and self-definition against the backdrop of Jews and Judaism. What we certainly do not have is a contemporary Palestinian, or even a non-­ Palestinian, Jew writing a Josephus-like history. Josephus’ historical narratives end with accounts of events in the several years immediately following the destruction of Jerusalem. Leaving rabbis aside, we have no philosophical, legal, or “religious” text from a Palestinian (or non-Palestinian) Jew for this period that proffers an account of the social and cultural situation of Roman Palestinian Jews of last half of the second and the first half of the third centuries. The only literary evidence in our possession from and about Palestinian Jewish life of the period (or more accurately immediately before our period) are a few letters and documentary fragments, such as those from the Judean desert’s “Cave of Letters,” most notably the Babatha papyri, and the Bar Kokhba letters.15 These are very important and interesting sources, but still thin gruel. If we consider non-contemporaneous, later writings, again we have several distinct classes. We have writings from non-Jewish authors, increasingly Christian and some Greco-Roman authors, with overly limited focus and propagandistic purposes. Or we have the extensive writings of later 14  Again, the archaeological remains of ancient synagogues rank among the most abundant material evidence for Jewish life in Roman and Byzantine Palestine. See Levine, The Ancient Synagogue. 15  Judean Desert Studies, 3 vols. (1963, 1989, 2002); See Emanuel Tov, Discoveries in the Judean Desert, vol. 39: Introduction and Indices (London: Clarendon Press, 2002); Benjamin Isaac “The Babatha Archive: A Review Article,” Israel Exploration Journal 42 (1992): 62–75. See also Philip F. Esler, Babatha’s Orchard: The Yadin Papyri and an Ancient Jewish Family Tale Retold (Oxford: Oxford University Press, 2017).

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Palestinian and Babylonian rabbis. These documents speak much about Palestinian Jews, Judaism, and Jewish life in our period of interest. But their evidence must be carefully assessed for creative anachronisms and speculative re-creations as concerns the social and cultural texture of Palestinian Jewish life in the latter half of the second and the earlier decades of the third centuries. Again, even for this period subsequent to that under investigation, we have no Jewish chronicler to which to turn, no Jewish version of what Eusebius does for the early Church16 to enlighten us about Jewish life in the Roman Palestine in 200 CE, plus or minus 50 years. There is, however (or perhaps, one might say, obviously), one major document that is (1) widely held to be contemporary with the period and place that is our focus, (2) written by Palestinian Jews, and (3) thick with evidence covering a vast array of topics that would be grist for the mills of sociologists and anthropologists (as well as social historians). It is the Mishnah, produced by the early rabbinic movement toward the end of the second century or in the first decades of the third. The Mishnah is the first magnum opus of the early rabbinic movement. And for the subsequent 400 years or so, the Mishnah was the most authoritative document (after the biblical scriptures themselves) within rabbinic circles. Mishnah is a legal “study” based on biblical law spanning 6 broad topical “Orders” and (depending on how one counts them) comprised of 63 individual tractates—62 without tractate Avot, likely a later addition—covering: • agricultural gifts to (a now defunct) Temple, and prayer/blessings; • festival and Sabbath law; • family law; • damages, torts, and judicial proceedings; • sacrificial practice (again for a defunct Temple), slaughter for non-­ sacrificial consumption; and • purity law (much of which also requires Temple-based purification rites). The mastery of Mishnah and its life-long study, in correlation with other biblical and, afterward, subsequent rabbinic literature, made one a rabbi. This remained the case until, centuries later, the Babylonian Talmud

16  Megillat Ta’anit, if it is a type of chronicle at all, is an exception that proves the rule. And one certainly does not want to turn to the ninth-century epistle of Sherira for these purposes.

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displaced Mishnah at the apex of the rabbinic curriculum.17 As a result, there survives a rich body of post-Mishnaic rabbinic literature from the third and subsequent centuries that serve to elucidate Mishnah (although often anachronistically). Consequently, despite the considerable methodological and conceptual challenges that must be addressed, the sociological and anthropological treatment of the evidence of the Mishnah—both of its value and definitive clarification of its limitations as evidence—would undoubtedly make a major contribution to the understanding of the social and cultural landscape of Jewish society and/or of the early rabbinic movement in Roman Palestine during the decades just before and after the turn of the third century. But to ascertain precisely how and to what extent, one must first understand the basis for the methodological and conceptual challenges one confronts. That basis lies in the most pervasive literary and rhetorical traits of Mishnah, and in the hard lessons learned from trying to use Mishnaic evidence for historiographical purposes, something that sociologists and anthropologists may not be well attuned to. To that end, the next section of this paper will serve those who would take up the sociological and anthropological analysis of Mishnah’s evidence by helping them first situate themselves within the historiographical debates concerning the use of early rabbinic texts.

Mishnah’s Most Pervasive Rhetorical and Literary Traits, the Basis for Methodological Challenges and Choices in the Use of Its Evidence Permit me to use, and take liberties with, Seth Schwartz’s turn of phrase; he describes the range in “socio-historical” scholarship using Mishnah’s evidence as spanning “minimalist” and “maximalist” notions of the value of the text for historical purposes.18 I will take liberties with the use of his language by inserting my own substance into Schwartz’s terms. For the sake of argument, I characterize (even caricature) the extremes of a continuum at the ends of which are pure “minimalists” and pure “maximalists.” Even if these characterizations are largely fictional, there is something important to be learned by indulging in the fiction. Afterward, I retreat 17  See Jack N. Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” Studies in Judaism, Humanities and the Social Sciences 1 (2017): 23–44. 18  See the discussion in Seth Schwartz, The Ancient Jews, spanning his chapters 3, 4, and 5.

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from the continuum’s ends and say more of the middle grounds of the range, along which actual scholars are positioned. Minimalists, at the extreme, would take the view that the text tells us virtually nothing of historical value about society and events “outside” the text. That is to say, the “world” of the Mishnah is a self-referential world representing in “legal terms,” almost to the exclusion of all else, the ideas and vision of the mind(s) of its producer(s), and, at that, only in so far as concerned their work on Mishnah. In short, Mishnah, in extreme minimalist formulations, would be understood to reflect a utopian fantasy of its authors. Apart from, and outside of, their work on Mishnah, these editors/authors may have had other notions of society than are reflected in Mishnah. Indeed, under the extreme minimalist views, the editors/authors of Mishnah would have had to have had other, complementary notions of Jewish society, religion, and culture than those reflected in Mishnah. Otherwise, they would have had to have been social hermits, operating their own Temple, sacrificial cult, and priestly centered government at the end of the second century, a historical phenomenon for which we have no evidence in Palestine. Minimalists, at the extreme, would tend to eschew using the evidence from other early rabbinic writings, such as Tosefta, the Halakhic Midrashim, and the Palestinian Talmud, in order to shed light on the “historical” society and culture of Late Roman Palestine, for much the same reasons that they would be very hesitant to use Mishnah’s. Moreover, mutatis mutandis, they would also enjoin caution in using these other early rabbinic writings to shed light on the “minds” of the framers of Mishnah—this because they tend to see each of these latter rabbinic documents as reflecting almost exclusively the minds of their own respective authors/editors, even while these documents are organized to greater or lesser extents in order to appear to be commentaries elucidating Mishnah. Maximalists, on the other extreme, would largely see Mishnah as a repository, expressed in normative legal terms, of “historical” traditions and memories organized topically. In such a maximalist formulation, for each topical treatment in Mishnah, one would perceive in Mishnah a mélange of such traditions and memories, the origins of which range from several centuries prior to Mishnah’s production to immediately prior to the work of Mishnah’s authors/editors. The scholarly challenge, as extreme maximalists might put it, would be to order the content historically so as to more accurately uncover historical development of Jewish society, religion, and culture through these several centuries. In this

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exercise, while recognizing that a majority of Mishnah’s content bears no attributions to named authorities, such attributions would be viewed as probative, because the generational ordering of the authorities would be understood to provide a basis for historically sequencing that which is preserved in Mishnah. Let me be clear, extreme maximalists would not only tend to claim that the legal “topics” or “issues” can be so sequenced historically, but also that the actual legal positions and rulings on these issues can be historically aligned and assigned to various decades prior to Mishnah’s production. (I will return to this distinction a little later in this section of the chapter.) As regards our hypothetical extreme maximalists, there is a corollary that bears articulation. Just as Mishnah would be largely seen to be a repository, so too would other “early” rabbinic documents, again Tosefta, the Halakhic Midrashim, and the Palestinian Talmud specifically. Therefore, for extreme maximalists, the content of these immediately post-Mishnaic documents may be usefully correlated with the evidence from the Mishnah as complementary bodies of historical evidence. The differences between my hypothetical minimalists and maximalists at the extremes of the continuum would not be a matter of caprice, conviction, or ideology. Rather their divergent views would reflect their respective views—whether conclusions or assumptions, I will not specify at this point—of how the Mishnah came to be and what role the ultimate or penultimate editors/authors played in the production of the extant Mishnah. Extreme maximalists would read the literary evidence of the Mishnah as preserving much of the pre-Mishnaic language of Mishnah’s sources, whether oral or written. They would point to numerous examples in which this seems to be the case. Minimalists would tend to point to the incursion of the hand of the authors/editors into the wording not only of the framing and joining bits of Mishnah’s clumps of passages, but also of the very language at the heart of the substance of Mishnah passage after Mishnah passage. They would conclude from such evidence that even if Mishnah’s authors/editors worked from pre-existent sources, virtually nothing remains of the original language of those sources. Consequently, they would maintain that such extensive refashioning of language has affected the content, changing the meaning in subtle or substantial ways. Extreme minimalists would also point to another literary feature of Mishnah. They would see in many Mishnah passages the generation of hypothetical “cases” to serve the agenda and rhetorical patterning of the larger sections

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of which the individual “case” forms a literary part.19 They would argue that many of these hypothetical cases are so inherently unlikely occurrences in reality that, outside of the context of the larger literary composition of which they are, rhetorically speaking, an integral part, these “cases” should not be interpreted as residue of traditions of actual historical circumstances and associated rulings—a kind of case law. It is easy to see why and how extreme minimalists and maximalists would very differently undertake to use the evidence of Mishnah in a sociological or anthropological perspective. For the maximalist, the preferred task is recovering the historical social and cultural systems and dynamics of Palestinian Jewish society in the centuries preceding the production of Mishnah. For the minimalist, the only exercise that is defensible is probing the social and cultural vision of the minds of the Mishnah’s authors/editors. And there is yet another lesson to be learned from our contemplation of the positions of our hypothetical extreme maximalists and minimalists. Anthropologists and sociologists who wish to use the evidence of Mishnah (or for that matter, of any early rabbinic text) cannot do so without being sensitive to fundamental literary-historical matters about what these texts are and how they came to be. Their work must self-consciously take a stand, or adopt someone else’s stand, on some of these fundamental literary-­ historical issues, otherwise they are unconsciously doing so. Today, very few, if any, contemporary academic scholars can be justifiably located at either extreme, as I have characterized them. But scholars do tend to align to one side or another of the center of the continuum, and sometimes significantly so. There just is too much evidence of late that draws one away from the extremes. Let us consider an example. Even a minimalist-leaning scholar will have come to recognize that Halakhic documents discovered at Qumran give credence to the claim that religious-legal experts who authored 4QMMT, 130 or more years before Mishnah, are sometimes dealing with the same ritual-legal issues that Mishnah attributes to late first-century proto-rabbis like R. Yohanan b. Zakkai or to “the Pharisees” (perushim). 4QMMT represents the legal positions that Mishnah rejects.20 If this 19  Jack N. Lightstone, Mishnah and the Social Formation of the Early Rabbinic Guild: A Socio-Rhetorical Approach (Waterloo: Wilfrid Laurier University Press), 33–78. 20  See, for example, L.H.  Schiffman, “The New Halakhic Letter (4QMMT) and the Origins of the Dead Sea Sect,” Biblical Archaeology 53 (1990): 64–73; L.H. Schiffman, “The Place of 4QMMT in the Corpus of Qumran Manuscripts,” in Reading 4QMMT: New Perspectives on Qumran Law and History, eds. J.  Kampen and M.J.  Bernstein (Atlanta:

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were observed once or twice, it might be said to be insignificant. If, however, one observes this to be a pattern, then we are dealing either with a deliberate stance of Mishnah’s editors in opposition to some antecedent faction and/or with a reflection of opposing factions among legal virtuosi operating in Palestinian Jewish society well before the composition of Mishnah. That is, in the latter case, both Mishnah (or rather, Mishnah’s source traditions) and 4QMMT reflect either side of a contemporary ritual-legal disagreement predating the destruction of the Jerusalem Temple in 70 CE. As such, Mishnah in these passages at least could be read as providing corroborating evidence about an aspect of cultural/cultic pre-­ occupations of some groups of mid-first-century (or earlier) Jewish Levantine society. Still other evidence about Mishnah can be adduced to draw one away from the extreme minimalist’s view. As early as the end of the 1970s and beginning of the 1980s, Jacob Neusner, whom many would characterize as one of the leaders of the minimalist camp,21 argued that the issues dealt with within Mishnah’s tractates can be shown to be amenable to “logical” sequencing that corresponds to historical layers of developing legal thinking within rabbinic circles over the decades preceding the production of Mishnah.22 That is, Mishnah’s legal content can be re-arranged such that ruling x, which applies in circumstance y, must be logically prior to ruling Scholars Press, 1996), 81–98; see also L.H. Schiffman, Reclaiming the Dead Sea Scrolls: The History of Judaism, the Background of Christianity, the Lost Library of Qumran (Philadelphia and Jerusalem: Jewish Publication Society, 1994); J.N. Lightstone, “The Pharisees and the Sadducees in the Earliest Rabbinic Documents,” in In Quest of the Historical Pharisees, ed. Jacob Neusner and Bruce D. Chilton (Waco: Baylor University Press, 2007), 255–296. 21  Indeed, relatively speaking, in the 1970s, Neusner emerged as situated well to the minimalist side of other scholars using early rabbinic evidence for social and historical reconstruction of Judaism and Jewish society in the Greco-Roman Period. For example, adopting minimalist-like positions (as articulated earlier in this essay), Neusner critiqued, among others, the work of George Foote Moore, Judaism in the First Centuries of the Christian Era, 3 vols. (Cambridge: Harvard University Press, 1954), as well as that of his contemporary Ephraim Urbach, The Sages: Their Beliefs and Opinions (Jerusalem: Magnes Press, 1977) (a translation of the original work in Hebrew, Hazal). Aside from his review articles about works like those by Moore and Urbach, Neusner wrote a monograph with the challenging title, Reading and Believing: Ancient Judaism and Contemporary Gullibility (Atlanta: Scholars Press, 1986), 30–31, 48–50. These works extended and lengthened the range of the active continuum at the time between what I have called minimalists and maximalists. 22  Jacob Neusner, Judaism, the Evidence of the Mishnah (Chicago: University of Chicago Press, 1981). Neusner’s first major articulation of this historical-logico-deductive sequencing of Mishnah law may be found in his History of the Mishnaic Law of Purities, Part 22 (Leiden:

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a, which applies to circumstance b. For example, hypothetically speaking, one must have established that there is a daily evening prayer before asking whether the recitation of biblical verses associated with the Shema Yisrael (“Hear Oh Israel”) declaration of faith are part of the evening prayer service (see m. Bekhorot, chapter 1). Neusner demonstrated that where topically related rulings in Mishnah are attributed to named pre-Mishnaic rabbinic authorities, their generational order parallels the logical order of the rulings attributed to them. Neusner uses this finding not to argue that these rabbinic authorities actually said what (or something like what) is attributed to them, but rather to say that the preponderance of probability indicates that there seems to have been a historical unfolding through time of the legal issues dealt with in Mishnah—that “generation a” (however that is conceived) was concerned with one set of issues, while “generation b” seemed concerned with a second, logically derivative set of questions. While other explanations of what Neusner has observed are possible—for example, that what we see is the clever hand of the final authors/editors making matters appear this way, an argument akin to the early anti-­evolutionists arguing that God put the fossils in the ground— the preponderance of probability suggests otherwise, namely that Mishnah’s evidence does preserve some indication of a historical sequence of the unfolding of early rabbinic legal positions on a number of issues. Even minimalists, then, must put water in their minimalist wine. Evidence also clearly draws us away from the maximalist end of the continuum. Here I would adduce evidence stemming from what appears to be the massive reformulation of language, style, and rhetoric that the final or penultimate authors/editors of Mishnah’s intermediate units (“chapters”) imposed on even Mishnah’s smallest logical units (as opposed to the preponderant use of joining language that would be characteristic of less intrusive authors and editors). As Neusner, Green, and I have variously demonstrated,23 the very language and literary-rhetorical traits that characterize a Mishnah “chapter” (a kind of topical essay within a tractate) are often imposed on the “chapter,” its constituent pericopae (mishnayot), Brill, 1977). See also J. Neusner, “History and Structure: The Case of Mishnah,” Journal of the American Academy of Religion 45 (1977): 161–92. 23  Jacob Neusner, Purities, Part 21 (Leiden: Brill, 1977); Jack N. Lightstone, Mishnah and the Social Formation of the Early Rabbinic Guild: A Socio-Rhetorical Approach (Waterloo: Wilfrid Laurier University Press), pp.  33–78; William S.  Green, “What’s in a Name? The Question of Rabbinic Biography,” in Approaches to the Study of Ancient Judaism, vol. 1, ed. William S. Green (Missoula: Scholars Press, 1978), 77–96.

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and, indeed, on the very protases that define the legal circumstances that are ruled upon within the pericopae. And when, furthermore, the registered ruling (whether anonymous or attributed to a named authority) appears in language as sparse as “clean” or “unclean,” “permitted” or “forbidden” (to admittedly point to the more extremely truncated formulations), little of anything can be said to have come from some antecedent source or tradition. The “original case,” if there was one at all, is now obscured by the chapter’s literary (re)formulations, and the original ruling is now so laconic as to be no one’s language. One is reduced to saying that if rabbi x (or an anonymous authority) ruled on a case like this, we no longer have in hand the antecedent language that defined the substance of the case or the language of the ruling. That said, there are also few who would describe themselves, or would be described by others, to be at the center, midway between maximalist and minimalist ends, of the continuum. The center is too hard to occupy in practical terms, for much the same reason that it is hard to occupy the extreme ends. Just as it is difficult to maintain the extreme positions— namely, that either the work of the authors/editors is so extensive that it has effaced any and every remnant of the content of earlier sources or the editors/authors have contributed virtually nothing themselves and only acted to compile and order things they received—so too is it difficult to maintain that the authors/editors did both in equal measure. One tends to lean in one direction or another based on the evidence that seems most cogent to one. I avow that I sit on the minimalist side of center. But the studies written as a result of this call to examine Mishnah’s evidence through anthropological and sociological lenses will undoubtedly reflect a range of positions on the continuum. What, then, is the upshot of the foregoing for those of us participating in this joint project? Simply put, the type of sociological and anthropological questions individual participants ask, for which Mishnah’s evidence will be adduced in answer, should be (pre)conditioned by, and drag in their wake, methodological issues derived from each scholar’s reasoned, self-conscious, and declared assessment of where he or she sits on the maximalist-maximalist continuum. These methodological issues will be more or less difficult to address, depending upon one’s self-­ designated position. But none of us will be free of one or another type of methodological difficulty. If one’s reasoned position places one on the minimalist side of center, then one encounters fewer methodological difficulties if one focuses on

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the authors’/editors’ perhaps utopian views of an ideal Israelite society. Such scholars may understandably shy away from posing questions of Mishnah’s evidence to reconstruct elements of Palestinian Jewish society and culture of 50 or 100 or 150 years before the production and promulgation of Mishnah  at the end of the second or beginning of the third century CE.  Given their views of how, on balance, Mishnah came into existence, that approach is the more methodologically sound one, because it is the more cautious. But the approach still does not completely clear important methodological hurdles in their path. They must still provide warrant for why we should consider Mishnah’s editors/authors to have one, unitary, coherent, and self-consistent understanding of that utopia. After all, that unity and coherence cannot be presupposed. Or, if such unity is not presupposed or cannot be demonstrated, they must tell us why their inquiry is nonetheless worth doing from a methodological and conceptual perspective. So, what some may adopt as the (apparently) more cautious approach is hardly problem-free. What now of those who lean to the maximalist side of center? These scholars, in my view and from my vantage point on the minimalist-­ maximalist continuum, face difficult methodological problems on at least three principal fronts: these concern the “more precisely what,” “who,” and “when” of matters. That is, given the degree to which, in my opinion, the language, formalized style, and rhetoric stemming from the Mishnah’s (pen)ultimate authors/editors have imposed themselves on both the protases (case descriptions) and apodases (rulings) of so many of Mishnah’s individual literary units, how much specific content of any antecedent, earlier source material is recoverable above and beyond general legal themes? Moreover, how do we assign substance to a period, or to a person or circle of persons, again in anything beyond the most general terms? Scholars have worked out methodological approaches to deal with some of these questions. Earlier, I noted that Neusner, a minimalist-leaning scholar, provides one example. On the other hand, scholars to the maximalist side of center are not as vexed with the methodological issue of whether Mishnah represents a unitary system. Why? They rightly expect that they may uncover in Mishnah’s substance evidence of factions and periods proffering different visions of Israelite society, real or imagined, with perhaps a glimpse of the social-historical winners and losers along the way. But whether one takes one’s vantage from the maximalist or minimalist side of center, I should like to know that one does and why.

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Moreover, whether one is on one side of center or the other, there is a general methodological challenge that all scholars face. This stems from the high degree to which Mishnah has ordered and systematically thematized its content. By so doing, Mishnah’s editors/authors have provided sociologists and anthropologists with what can too easily be accepted at face value as “analytic” categories: such as production (Agriculture); cult (Sacrifices/Holy Things); calendar (Festivals); family and kinship (Women); and so on. This begs the question of whether these are the “right” or “best” analytic categories for those interested in sociological and anthropological analysis of Palestinian Jewish society and culture, or even of Mishnah’s utopian system for a fictive Palestinian Jewish society and culture. To accept or depart from Mishnah’s categories is consequential. It is a methodological choice that ought to bespeak of a conceptual and theoretical framework explicitly adopted for good reason. To stick closely to Mishnah’s thematization of matters may be tantamount to opting for a more descriptive exercise, where what is described in large part is the classification of matters in accordance with Mishnah’s editors’ perceptions of their (ideal?) world. But departing from Mishnah’s own thematization will allow one to adopt a categorization of the evidence permitting a comparison of Mishnah’s social and cultural system(s) to those of other human communities, and to do so within a larger conceptual and theoretical framework. Such a choice may offer greater analytic purchase on the evidence, even if it comes with a compensatory cost: namely, the subjects (here Mishnah’s authors and editors) might no longer recognize their own social and cultural system.

Three Potentially Compelling Topical Directions of Inquiry in the Sociological and Anthropological Study of Mishnah’s Evidence As stated at the outset of this essay (and as befits its conclusion), in taking sociological and anthropological approaches to the study of the evidence of the Mishnah, those who respond to this call to engage in a renewed scholarly effort, will likely pursue one or another of (or at times some combination of) the three lines of inquiry:

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1. the use of Mishnaic evidence to understand better the social and cultural patterns of contemporary and/or immediately antecedent Palestinian Judaism and Jewish society; 2. the use of Mishnaic evidence to reconstruct major aspects of the sociology and culture of the early rabbinic movement itself, within which Mishnah was produced and seemingly immediately revered and studied as authoritative; 3. the use of Mishnaic evidence to understand the sociology and culture of the world defined by and in Mishnah’s substance, even if that world does not mirror with precision (or perhaps at all) any contemporary Palestinian Jewish community’s world. Each one of these three lines of inquiry has intrinsic value as contributions to the sociological and anthropological understanding of human communities in the Levant during the Roman Period. Moreover, any one of the three demonstrates how literary evidence from centuries past may be used for sociological and anthropological ends. This in itself is not trivial, because it is a significant academic contribution from and for those whose intellectual roots lie in classical sociological and anthropological inquiry, in which subjects can be observed and questioned, and literary evidence can be complemented and supplemented by observation and querying of members of the living community.24 It should also be clear from our earlier discussion that the choice of one or another of (or of some combination of) these three lines of inquiry aligns with explicit or implicit positions about the historical and literary processes that brought Mishnah into being. One’s position on the latter issue will tend to make one or another of the three avenues of inquiry more or less fraught with methodological hurdles to be addressed and overcome. The lighter the hands of the editors on the production of Mishnah, in one’s considered view, the greater the possibility of observing in Mishnah’s evidence valuable glimpses of Palestinian Jewish life and culture “outside of” and “prior to” the minds of Mishnah’s producers. The heavier the hands of the editors/authors, the more likely that it is the “world” of the minds of Mishnah’s producers that we glimpse, and we must offer warrants for extending what we observe to others or to circles beyond the 24  It is ironic that one of the founders of modern sociology, Max Weber, chose to analyze ancient Israel, and the biblical evidence, as a major object of sociological inquiry.

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immediate group, late second-century Palestinian rabbis, from which Mishnah’s producers came, and for whom they intended their Mishnah. And who can say, without appropriate research, whether the hands of the editors/authors of Mishnah are equally heavy or light throughout all Mishnah? Moreover, even if one were to take the position that Mishnah’s evidence overwhelmingly conveys a utopian fantasy of its producers due to the “heavy” hands of its editors/authors, we may still rightly conclude that there are limits to their imagination. We may at times surmise that in articulating their fantasy they are telling us things about the social and cultural world that they or their parents and grandparents lived. To give a simplistic example, the producers of Mishnah do not imagine the tilling of fields with diesel-powered tractors, or the harvesting of crops with motorized combines. Rather in treating the system of agricultural gifts to the poor and to the Priests and Levites grounded in biblical law, they are “by the way” likely telling us something of agricultural modes of production and the social organization these entail in second-century Palestine, even if we might surmise that the system of agricultural gifts per se enjoined in Mishnah is a utopian formulation. So too Mishnah speaks of towns in Roman Palestine that are primarily inhabited by Jews, others that are primarily inhabited by Gentiles, and others with large Jewish and Gentile populations. These are incidental facts in Mishnah that are assumed background realities of the “utopian fantasies” that the Mishnah’s authors weave. A similar conclusion may be drawn from Mishnah’s treatment of Sabbath restrictions. Mishnah’s treatment “assumes” as commonplace certain patterns of the physical organization of households, neighborhoods, and towns. Are these too fantasies? Or do they bespeak of actual systems of urban geography and organization Mishnah’s producers take for granted in formulating their ideal Sabbath laws? There are plausible arguments to be made for the latter position.25 What behooves all of us who respond to this call is, however, to some meaningful degree, (1) to be explicit about our choices regarding the lines of inquiry adopted, (2) to define and defend the methodological and 25  I have just such an argument—more for Tosefta, but also for Mishnah—in J. Lightstone, “Urban (Re-)Organization in Late Roman Palestine and the Early Rabbinic Guild: What Toseftan Evidence Indicates about the City and Its Institutions as an Emerging Salient Category in the Early Rabbinic Legal (Re-)Classification of Space,” Studies in Religion/ Sciences Religieuses 36 (2007): 421–425.

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conceptual bases for the choice, (3) to articulate how and to what degree ensuing methodological difficulties deriving from our choices can be overcome, (4) to demonstrate what can be derived from the evidence, and (5) to specify what level of confidence we would assign to the results. The result of such a collective effort, even in multiple volumes, cannot hope to exhaust the subject on any of the three lines of inquiry, let alone on all of them. What will emerge is clarity about the use of Mishnah’s evidence for anthropological and sociological study, as well as many valuable and informative examples of such use. These will provide sound templates for others to further the work.

CHAPTER 2

Dignity or Debasement: The Destitute in the World of Mishnah Simcha Fishbane

Introduction In a recent series of lectures on the topic of the “weak individual” in Judaism, the Rabbi of Kibbutz Alumim argued that this group of individuals that includes the society’s destitute1 is strong enough to disrupt the solidarity2 and stability of the community.3 Stability in a society is maintained at the expense of the individual in favor of the group. In the case of the pauper, it is the emphasis on the individual that becomes the

 In this essay, I interchangeably use the terms poor, needy, pauper, and destitute. I define the term poor below. 2  See Gregg E.  Gardner, The Origins of Organized Charity in Rabbinic Judaism (n.p.: Cambridge University Press, 2015), 3–4, who discusses the relationship between social solidarity and the poor. 3  I thank my son and daughter-in-law, Gilad and Noa, for this information. 1

S. Fishbane (*) Graduate School of Jewish Studies, Touro College & University System, New York, NY, USA e-mail: [email protected] © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_2

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focus4 and thus the vulnerability of the social structure. Simmel5 explains, “Amidst all the positive differences, the commonality of the purely negative still had to bring the solidarity to the consciousness of a cultural circle transcending the individual state.” The redactors of Mishnah6 were cognizant of the dangers and threat from what we can classify as a “social category,”7 the poor individuals. They were a threat to the rabbis’ ideal world of Mishnah. Simmel8 develops this concept of the poor as a social category: “The social meaning of the ‘poor’ as opposed to the individual one, first allows the poor to unite into a kind of status group or unified layer within society. … One may take up a gradually changed position within the society because of poverty, but the individuals who find themselves in different statuses and occupations at this stage are in no way united into a special social unit outside the boundaries of their home stratum.” Simmel continues, “Admittedly this group is not held together by interaction among its members but by the collective attitude that society as a whole takes up towards it.” Whenever the welfare of the social whole necessitates the care of the poor, whether it is a social or legal requirement, the redactors of Mishnah do not permit the pauper to become an active, dangerous enemy of society.9 This essay will focus upon the status, role, and characteristics of the pauper in the world of Mishnah.10 The areas that I will explore will include 4  See Mary Douglas, Cultural Bias (Royal Anthropological Institute of Great Britain and Ireland, 1979), who discusses this issue within her grid-group theory. 5  Georg Simmel, Sociology: Inquiries into the Construction of Social Forms (Leiden, Boston: Brill, 2009), 245. 6  Mishnah, the first redacted rabbinic document at approximately at the end of the third century. 7  I cannot classify the poor as a group for they lack interaction, a component necessary to be identified as a group. I thank Professor Nissan Rubin for this clarification. 8  Simmel, Sociology, 440. 9  Ibid., 412. 10  Scholarly works that deal with poverty in the Tannaitic period include: Leonard J.  Greenspoon, “The Bible, the Economy, and the Poor.” Journal of Religion and Society Supplement, no. 10 (2014), 147–63; Gregg E. Gardner, The Origins of Organized Charity in Rabbinic Judaism (New York: Cambridge University Press, 2015); Gardner, “Charity Wounds: Gifts to the Poor in Early Rabbinic Judaism” in The Gift in Antiquity, M. L. Satlow, ed. (n.p.: Wiley-Blackwell, 2013), 173–88; Gardner, “Concerning Poverty: Mishnah Peah, Tosefta Peah, and the Reimagination of Society in Late Antiquity” in Envisioning Judaism: Studies in Honor of Peter Schafer on the Occasion of His Seventieth Birthday, R. S. Boustan, K.  Herrmann, R.  Leicht, A.  Y. Reed, and G.  Veltri, eds. (n.p.: Mohr Siebeck, 2013),

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how the rabbis dealt with the threat from the destitute while maintaining the proper care for the ani (pauper). To achieve this goal, in addition to analyzing the Mishnah’s text and any other Tannaitic sources11 that compliment or are relevant for the understanding of Mishnah, I will apply different socio-anthropological theory that can shed light upon the understanding of the destitute in the world of the Mishnah. Mishnah, the first written rabbinical document, redacted approximately in 2 AD, is an attempt to create an ideal Temple/agricultural12 based society, or what I prefer to term an “imagined collective.”13 The voice of Mishnah presents to its readers how the sages perceived the world in the Land of Israel to be, rather than how it really was.14 Although not often 205–216; Gardner, “Who Is Rich? The Poor in Early Rabbinic Judaism.” The Jewish Quarterly Review 104, no. 4 (Fall 2014), 515–36; Gardner, Organized Charity (and see his footnote 1 for an extended bibliography on this topic); Rodger Brooks, “Support for the Poor in the Mishnaic Law of Agriculture: Tractate Peah.” Brown Judaic Studies 43 (Chico, CA: Scholars Press, 1983); Alyssa M. Gray, “The Formerly Wealthy Poor: From Empathy to Ambivalence in Rabbinic Literature in Late Antiquity.” AJSR 33, no. 1 (2009), 101–33; Gray, “Redemptive Almsgiving and the Rabbis of Late Antiquity.” JSQ 18, no. 2 (2011), 144–84; Frank M.  Loewenberg, “On the Development of Philanthropic Institutions in Ancient Judaism: Provisions for Poor Travelers.” Nonprofit and Voluntary Sector Quarterly 23, no. 3 (Fall 1994), 193–207; Jacob Neusner, ed. The Law of Agriculture in Mishnah and the Tosefta. (Leiden, Boston: Brill, 2005); Shmuel Safrai and Ze’ev Safrai, Mishnat Eretz Israel: Tractate Pe’ah (Zeraim 2) – with Historical and Sociological Commentary (Jerusalem: Lifshitz College, 2012), Hebrew; Frederick B. Bird, “A Comparative Study of the Work of Charity in Christianity and Judaism.” The Journal of Religious Ethics 10, no. 1 (Spring 1982), 144–69; Tzvi Novick, “Charity and Reciprocity: Structures of Benevolence in Rabbinic Literature.” HTR 105, no. 1 (2012), 33–52; Yael Wilfand, Poverty, Charity and the Image of the Poor in Rabbinic Texts from the Land of Israel (Sheffield: Sheffield Phoenix Press, 2014). 11  See “Mine Darkei Shalom: The Promotion of Harmonious Relationships in the Mishnah’s Social Order.” Studies in Judaism, Humanities and the Social Sciences (2017), in which I discuss my methodological approach to the analysis of Mishnah. I have included Tosefta only when it compliments Mishnah, not when it adds new material. I will discuss Tosefta at the conclusion of this work. 12  Palestinian society during the period of Mishnah was primarily agricultural. For a discussion of the agricultural society in the time of Mishnah, see Gardner, Organized Charity, 42–63. 13  Seth Schwartz, “Political, Social and Economic Life in the Land of Israel 66-c.235,” in The Late Roman-Rabbinic Period, S. T. Katz, ed. 23–52. Vol. 4 of The Cambridge History of Judaism (Cambridge: Cambridge University Press, 2006), 44–45, questions the Mishnah’s refection of the social-economic reality of the period. He argues that charity as well as the agricultural gifts to the poor was not a certainty. 14  See Gardner, Organized Charity, 21–25. Gardner (p. 24) continues to explain, “They were not intended as works of historiography or as a trove of data on every day social life in Roman Palestine. Rather they are meant as legal and theological discourses that focus only

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cited, Scripture is the point of departure for the topics discussed by the Mishnah’s redactors;15 Mishnah cannot be comprehended without the knowledge of its reference point in the Bible. The case in Mishnah that I will explore is based upon Scripture’s instructions on how to aid the destitute. As expressed in Deuteronomy 15:11: “For the poor shall never cease out of the land, therefore I command you saying, Thou shall open your hand wide to your brother, to the poor [evyon], and to the needy [laniyeha vlevyoneha] in your land.” The Bible offered the redactors of the Mishnah a point of departure for the care and compassion for the needy Jew (I will discuss this in further detail below). Not only does Torah law that demands care for the poor require the Jew of means (who owns land) to donate to the needy, but also every Jew is mandated to offer heartfelt assistance or charity to these indigent individuals. Mishnah selects only one term to identify the impoverished—“ani.”16 Scripture uses dissimilar terms interchangeably to identify the destitute individual: evyon, dal, ger, and ani. It also will includes the orphan and widow. I suggest the Mishnah redactors chose the term ani to specifically focus on the economic aspects concerning the poor (which I will discuss below). When discussing the agricultural gifts, the Torah only speaks of the ani, ger, yaton, and almanah. Ger, yatom, and almanah portray individuals with specific societal roles. These roles represent considerations other than economic ones. The redactors of Mishnah preferred a generic and all-encompassing description of the poor, thus choosing the generic term, ani. These agricultural gifts are termed in rabbinical literature as matanot aniyim (presents for the poor). In Mishnah, this terminology only appears once in Tractate Avot 5:9 when discussing the agricultural gifts to

the aspects of life that are pertinent to the discussion at hand. They also exhibit literary qualities, indicating that these traditions have been heavily reworked.” Or as argued by J. D. Cohen, “Judaea Legal Tradition and the Halakha of the Mishnah,” in The Cambridge Companion to the Talmud and Rabbinic Literature, C. E. Fonrobert and M. S. Jaffe, eds., 121–43 (New York: Cambridge University Press, 2007), 127, “The Mishnah’s voice is prescriptive not descriptive. It prescribes how things ought to be done, it does not describe how things are actually done.” 15  See Cohen, “Judaea Legal Tradition…” (ibid.), for a discussion of Mishnah’s dependency upon Scripture. 16  Evyon is used once in Mishnah while discussing presents to the poor on Purim (matanot leevyonim), a term borrowed from Megillat Esther.

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the poor. The term was adopted by later rabbinical authorities such as Maimonides.17 Since Scripture placed an emphasis upon the welfare of the poor, Mishnah dedicated an entire tractate (Peah), the second tractate within the six orders of Mishnah, to this social category. This tractate, based on Torah rulings, instructs the Israelite on the laws of leket (gleanings), shikhekhah (forgotten sheaves), peah (rear corner of the field), peret (separated grapes), and ollilot (defective clusters) in the following passages: Leviticus 19:9–10: “When you reap the harvest of your land, you shall not wholly reap the corners of your field, neither shall you gather the gleanings of your harvest. You shall not glean your vineyard; neither shall you gather the single grapes of your vineyard; you shall leave them for the poor and stranger.” Leviticus 23:22: “When you reap the harvest of your land you shall not altogether remove the corners of your field when you reap it, nor shall you gather any gleaning of your harvest, you should leave them to the poor and to the stranger … .” Deuteronomy 24:19–21: “When you reap your harvest in your field and have forgotten a sheaf in the field, you shall not go back to fetch it; it shall be for the stranger, for the fatherless, and for the widow… When you beat your olive tree, you shall not go over the boughs again, it shall be for the stranger, for the fatherless, and for the widow. When you gather the grapes of your vineyard you shall not glean it afterwards; it shall be for the stranger, for the fatherless and for the widow.” Deuteronomy 26:12–13 discusses ma’aser ani (poor man’s tithe): “When you have made an end of tithing all the tithes of your produce in the third year, which is the year of tithing and have given it to the Levite, the stranger, the fatherless and the widow, that they may eat within your gates, and be replete; then you shall say before the Lord your God, I have removed the hallowed things out of my house and also given them to the Levite and the stranger, to the fatherless and to the widow, according to all your commandments which you have commanded me.”

17  In his Mishnah Torah, Maimonides terms the section dealing with the agricultural gifts to the poor as matanot aniyim.

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The Support of the Poor Scripture requires two modes of giving: “heartfelt” and “designated.” By heartfelt, I refer to when an individual can choose when, how, and where he offers his present to the poor person. Leket, shikhekhah, and peah are designated gifts. The field owner and the poor person collecting these gifts are instructed when, where, and how much to give when executing their mitzvah. The heartfelt gift is in the hands and under the control of the giver. Unless a local tax is levied, the donor can decide where, when, how, and how much he decides to allocate to the poor.

The Status of the Poor Person Before discussing the status of the poor in the rabbinic society, it is necessary to define who is classified as poor. Coser18 correctly points out that the argument that a poor man is one whose economic means are not commensurable with the economic ends he seeks “does not stand up.” Rather, the poor are persons who have been defined by society and have evoked particular reactions from it. Simmel19 depicts the poor to be “according to the sociological concept, it is not the personal deficiency that makes people poor but the people supported for the sake of the deficiency are primarily the poor.” It would seem that this clarification at first glance is suggested in Mishnah’s definition of poor persons. The Mishnah in Tractate Peah 8:7–9 informs us:20 7: They give to a poor man travelling from place to place no less than a loaf [of bread] worth a dupondion [made from wheat which cost at least] one sela for four seahs. [If such a poor person] stayed overnight, they give him enough [to pay] for a night’s lodging. [If such a poor person] spent the Sabbath, they give him food for three meals. Whoever has sufficient food for two meals may not take [food] from a soup kitchen (tamchui). [Whoever has sufficient] food for fourteen meals may not take [money] from the com-

18  Lewis A. Coser, “The Sociology of Poverty: To the Memory of Georg Simmel.” Social Problems 13, no. 2 (Autumn 1965), 140–141. 19  Simmel, Sociology, 442. 20  Translation of Mishnah throughout this essay is adapted from Jacob Neusner, The Mishnah: A New Translation (New Haven and London: Yale University Press, 1988).

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munal fund (haquppah).21 [Money for] the [communal] fund is collected by two [people] and distributed by three [people].22 8: Whoever has two hundred zuz [in liquid assets] may not collect gleanings, forgotten sheaves, peah, or poor man’s tithe. If he had two hundred [zuz] less one dinar [he had one hundred and ninety-nine zuz], even if one thousand [householders each are about to] give him [one dinar], all at the same time, lo this man may collect [produce designated for the poor, because at the moment he takes the charity, he has less than two hundred zuz]. [If he had two hundred zuz which served as] collateral for a creditor, or for his wife’s marriage contract, lo, this man may collect [produce designated for the poor, since this money is not available for his use]. They may not compel him to sell his house nor his tools [of his trade in order that he might have two hundred zuz].23 9: Whoever has [only] fifty [zuz], yet conducts business with them, lo this man may not collect [produce designated for the poor]. And anyone who does need to collect [such produce] but [nevertheless] collects [it] will not depart from this world before he in fact depends on other people. … And anyone who needs to collect [such produce] but does not collect [it] will not die of old age before [he is able] to support others from which belong to him.

Therefore, if we examine the above Mishnah,24 the redactors ascertain the poor individual to be a deprived person lacking the possibility to obtain 21  Charitable institutions, especially the kuppah, were shaped by the Greco-Roman civic culture as they stand alongside other institutions in the urban landscape. See Gardner, Organized Charity, 32. 22  Gardner, Organized Charity, 62, describes these two forms of charity as follows: “The tamhui aims to provide the poor with basic physiological necessities. The kuppah, by contrast, is concerned with semiotic poverty and its social ramifications as it aims to restore the poor to their previous standing in society by providing them with objects (and the status that they projected) that they had lost. The tamhui saves the poor from biological death, while the kuppah saves the poor from a social death.” 23  The traditional Mishnah commentators explain tools (kelim) to refer to the fine household utensils, which he uses on Shabbat and festivals. See Pinchas Kehati, Mishnah with a Commentary by Rabbi Pinchas Kehati, Vol. 1 (Jerusalem: Department for Torah Education and Culture in the Diaspora, 1994), 120. 24  Mishnah’s definition of poor is different from Scripture. Scripture includes in the classification poor individuals who are legally or socially disadvantaged. For example, in Dt. 24:19–24, widows, orphans, and resident aliens are entitled to collect the various poorofferings without regard to the sum of money they possess. For Mishnah, it is a purely economic definition of a poor person and does identify a specific class of persons. (See Neusner, The Law of Agriculture, 781.)

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for himself two meals a day25 or the minimum funds to invest and earn sufficient funds for two meals a day.26 Two meals a day, which could be satisfied with a loaf of high-quality bread, was considered sufficient sustenance for an individual. If he lacks these means, he then falls into the category of the poor who is permitted to collect the agricultural gifts, food from the soup kitchen, and the possibility of food or money from the charity basket.27 Mishnah Peah 5:4 takes exception to this rule in the case of a traveler. Even though his total wealth would not permit him to be grouped with the poor, during traveling if he has no funds he can partake in matanot aniyim.28 Simmel,29 in his discussion of the stranger, identifies additional criteria to be considered poor. This individual cannot be an owner of land. He terms this “owner of soil”—“soil not only in the physical, but also metaphorically as a vital substance which is fixed, if not in space, at least in an ideal position within the social environment.” Mishnah discusses the poor working the fields for others as in the case of sharecropping (Peah 5:5) but does not present a case of a poor person owning land. Simmel’s definition would also be applicable to Mishnah’s needy.

25  Scholars researching this historical period argue that poverty in late antiquity was largely determined by access to land. Mishnah chooses rather to determine this status by purely monetary standards since, as I will discuss below, land offered other purposes for the rabbinic society. See Robin Osborne, “Introduction: Roman Poverty in Context,” in Poverty in the Roman World, M.  Atkins and Robin Osborne, eds. 1–20 (Cambridge and New  York: Cambridge University Press, 2006); and Neville Morely, “The Poor in the City of Rome,” in Poverty in the Roman World, M.  Atkins and R.  Osborne, eds. 21–39 (Cambridge and New York: Cambridge University Press, 2006). 26  For the local poor, Mishnah considers the needs of the individual on a yearly basis. If he has the means in liquid assets for two meals a day for the year, he is not considered poor; if he does not, he falls into the category of a poor individual and is eligible to collect poorofferings. Mishnah also seems to focus on an individual, not a family or husband and wife. 27  Tosefta Peah 4:8 provides further details regarding the amount of food that must be given to the transient poor. Jacob Neusner, ed. The Law of Agriculture, 775, explains that Tosefta sets the stage for the distinction between strangers and the local poor with whom they are acquainted. The former may be freeloaders, so they only receive food; the latter receives clothing as well. See Neusner’s footnote 30 for Lieberman’s understanding of this Tosefta. See also Yael Wilfand, Poverty, Charity and the Image of the Poor in Rabbinic Texts from the Land of Israel (Sheffield: Sheffield Phoenix Press, 2014), 121–147, who discusses the definition of the poor in Tannaitic documents. 28  See my discussion later. 29  George Simmel, On Individuality and Social Forms, Selected Writings. Donald N. Levine, ed. (Chicago and London: The University of Chicago Press, 1971), 144.

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This description of the destitute, described in Peah 8:5, is consistent throughout Mishnah. After discussing the amount of wheat that the landowner gives the poor to fulfill his obligation of ma’aser ani (the tithe obligation to the poor person on the third and sixth years of the shemitah cycle), Mishnah states: “said Abba Saul, [They must give to the poor] enough [produce] so that they may sell it [and use the revenue to] buy sufficient food for two meals.” Thus, we see that society has taken charge of the poor, by deciding what, how, and when the poor should receive their gifts. This would lessen need for calculation by the individual donor in favor of the collective under the authority deemed appropriate by Torah. Sociologically, we can interpret poverty in the words of Hvinden30 as “a social relationship, and not only as a lack or deficiency of means.” Simmel31 presents arguments both for and against the hypothesis that a poor person is both an insider, part of the group with all its benefits and responsibilities, and at the same time an outsider, not accepted by the society. In summary, he suggests, “So the poor person stands admittedly outside the group while being a mere object for undertaking by community toward the individual, but this being on the outside is – put briefly – only a particular form of being inside.”32 Simmel believes that the poor are simultaneously inside and outside the collective. In other words, the needy individuals occupy a distinct position within the group. They hold an ambiguous position; they are in some respects “outside” society, in other respects “inside” society.33 Poverty may be interpreted as a social relationship and not merely as a lack or deficiency of means. An examination of Mishnah suggests a different understanding. The needy individual in the world of Mishnah is an insider, part of the collective, but with special needs. This person is part of an identified social category within the group with dedicated laws to address his status. Scripture introduces this understanding of the poor’s social status by referring to him as “your brother” (Deuteronomy 15:11), suggesting a full-fledged member of the group. The poor Jew is therefore expected to fulfill all the 30  Bjorn Hvinden, “Poverty, Exclusion and Agency,” Research in Community 5, no. 1 (1995), 15. 31  Simmel, Sociology, 409–442. 32  Sociology, 435. 33  See Hvinden, “Poverty, Exclusion and Agency,” for a discussion of Simmel’s approach to poverty and the poor man’s place in society.

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rabbinic rules as any other rabbinic Jew. Mishnah substantiates this approach. M Bava Kama 8:6 states: He who boxes the ear of his fellow pays him a sela. R. Judah says in the name of R. Yose the Galilean, A maneh. [If] he smacked him, he pays him two hundred zuz. [If] it is with the back of his hand, he pays him four hundred zuz. [If] he (1) tore at his ear, (2) pulled his hair, (3) spit, and the spit hit him, (4) pulled off his cloak, (5) pulled apart the hairdo of a woman in the marketplace, he pays four hundred zuz. This is the governing principle: Everything is in accord with one’s station. Said Rabbi Akiva, Even the ­poorest Israelites do they regard as freemen [distinguished people] folk who have lost their fortunes. For they are the children of Abraham, Isaac, and Jacob. [Emphasis added]

Mishnah continues to express the halakhic responsibilities of the needy in different scenarios. For example, in Tractate Shabbat 1:1, while discussing the rules of carrying from one domain to another, it states: [Acts of] transporting objects from one domain to another [which violate] the Sabbath are two, which [indeed] are four [for one who is] inside and two which are four [for one who is] outside. How so? [If on the Sabbath] the beggar (ani) stands outside and the householder inside, [and] the beggar stuck his hand inside and put [a beggar’s bowl] into the hand of the householder, or if he took [something] from inside it and brought it out, the beggar is liable, the householder is exempt. [If] the householder stuck his hand outside and put [something] into the hand of the beggar or if he took [something] from it and brought it inside, the householder is liable, and the beggar is exempt. [If] the beggar stuck his hand inside, and the householder took [something] from it, or if [the householder] put something in it and he [the beggar] removed it, both are exempt. [If] the householder put his hand outside and the beggar took [something] from it, or if [the beggar] put something into it and [the householder] brought it back inside, both are exempt.

It is not the concern of this essay to discuss the laws of Sabbath, but what is clear from this scenario is that the ani is obligated to observe all rabbinic laws just as any other rabbinic Jew. An additional illustration that, even though he is destitute, the ani is required to follow the laws as all rabbinic Jews is found in the opening of the last chapter of Tractate Pesahim (10:1). The Mishnah states: “On the eve of Passover from just before the afternoon’s daily whole offering, a

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person should not eat until dark. And even the poorest Israelite should not eat until he reclines at his table. And they should provide him with no fewer than four cups of wine and even if [the funds] come from public charity.” The Mishnah is discussing the laws pertaining to the fulfilling of the Passover seder obligations. Rich or poor, the Mishnah demands equal adherence to its rules. Mishnah emphasizes that the obligation for the destitute to observe rabbinical rulings (halakhah) includes laws specific to their social category. In Tractate Peah 4:1 while discussing who can distribute nuts, which grow on smooth nut trees, Mishnah states: Peah is designated from [produce which as yet is] unharvested. [As regards produce which grows] on a trellis or [the produce of] a palm tree [either of which might be damaged if the poor attempted to collect the peah] – the householder cuts down [the produce] and distributes it among the poor. R. Simeon says, [The preceding rule applies] also to [nuts which grow on] smooth nut trees, [since the poor cannot easily limb these trees to pick the produce]. Even if ninety-nine [poor people] say that [the householder should] take [the produce by themselves, leaving the householder out of the distribution process completely], they listen to the latter, [who said that the poor should take the produce themselves], for he has spoken according to the law.

“He has spoken according to the law” implies that in the world of Mishnah the poor live according to rabbinic law; they are part of this world and perform according to its rulebook. I have suggested that the needy are a category within the Mishnah’s collective. They are not unique; there are other social categories that can be classified as “insiders” but stand apart with distinctive rules to serve their special needs. They include the priesthood, women, am haaretz, and even the “impure,” as well as the poor. The first two categories, priesthood and women, are sub-groups (within the collective) that have the possibility to interact with each other but do not have the ability to leave their status. The latter three are transient; the impure can become pure, the am haaretz a haver, and the poor, rich. Whether a permanent or temporary status, this does not exclude them from being an insider. The destitute are neither a status group nor a unified layer of society. They are an insider social category or social status with special rules to oversee their status.

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Giver or Receiver? The Focus of Mishnah Peah From the discussions and cases in Mishnah, there is no evident relationship between the giver and the receiver. The “presents” to the poor are given without any emotional interaction between these two individuals. Such charity cannot be categorized as a “gift,” which is a reciprocal action; it is a “one-way street” (in the words of the well-known French anthropologist Marcel Mauss, 1990). Religion frequently encourages such arrangements. That is, it provides for the needy, primarily for the sake of the mitzvah, without an expectation of return from the recipient. Although in rabbinical literature the agricultural gifts are termed matanot aniyim, gifts for the poor, I suggest that this is referring to gifts from the Lord, rather than the landowner, who is not expected to be reciprocal in the conventional understanding of the phrase. (I will further discuss this issue in my concluding remarks.) The ani is cited throughout all six orders of Mishnah but its primary application is found in Tractate Peah, an entire tractate devoted to deliberating and examining the support for the poor within the Mishnaic law of agriculture. Even a cursory examination of the tractate will demonstrate the interest and focus of Mishnah’s redactors. The focus is on the giver or the normative member of Mishnah’s world (Israelite) who is not identified as part of any special social category of the society. In our case, the focus is on the Israelite landowner living in a primarily agricultural society.34 As stated, Mishnah’s attitude toward the normative rabbinic Jew, even in the case of the needy, is not unique. The Mishnah, while discussing gifts 34  Alyssa Gray, “Redemptive Almsgiving,” 153–154, argues: (1) In Mishnah, there is no relationship between the rabbis and the poor. The rabbis did not even consider organized charity to be part of their activities. (2) In Mishnah, there is no empathy toward the poor except for the previous rich poor. When discussing this issue, she writes (p. 154), “This all suggests that Tannaim did not necessarily conceive of such organized charitable activities as ‘rabbinic’ activities, notwithstanding the presence of charity legislation in Tannaitic literature…. Tannaitic redemptive almsgiving ‘disappeared’ the poor because while charity for the poor was a Tannaitic value, it was not necessarily a value requiring the full active participation of rabbis and their contact with the chronically poor.” See footnote 53 of Gray’s essay. Gray has overlooked the various mishnayot I have cited in my essay. The rabbis of Mishnah clearly express empathy toward all the poor. Furthermore, I believe she is not focusing upon the structure of Mishnah, which is primarily a code of laws, and parables have little place. Mishnah purports rabbinical authority whether explicit or implicit; thus, all periscopes unless stated otherwise are of rabbinic concern. This authority is a foremost concern for the redactors of this rabbinic code.

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for the Priests (matanot Kohanim) in tractates Terumot, Ma’aserot, and Ma’aser Sheni, discerns comparable arguments.35 As for both the poor and the Israelite, Jaffee36 explains the need for Mishnah to emphasize the ­agricultural importance and dedicates numerous tractates to the topic. “That is to determine and then adjudicate, the respective claims of man and God to the produce of the Land of Israel. At stake, in other words, is the relationship of Israel to the Lord of its ancestral land.” For the priests, God has claimed these crops in the form of tithes. For the destitute, God has claimed these crops and designated them as leket, shikhekhah, and peah. God’s claim necessitates protection. Only after God’s claim is satisfied and the poor (as well as the priests) receive their due, the field owner is free of his biblical responsibilities. As discussed above, there is a parallel between matanot kahuna (heave offerings and tithes offered to the priests and the Levites) and matanot aniyim. Both are biblical responsibilities that require the allocations of agricultural produce. In both instances, the focus is upon the Land of Israel. Matanot aniyim, as well as terumot and Ma’aserot,37 comes into being in second-century Israel in Mishnah’s world, at a time when the people believed that victory over their enemies, the return of the Land of Israel, and the rebuilding of the Jerusalem Temple was possible. The visible symbol of God’s presence is no longer available. There was a need for an alternative focus. In accordance with Scripture’s rulings, the observance of Matanot aniyim and matanot kahuna affirmed an essential continuity of God’s lordship over the Land of Israel, analogous with Temple times, when the Temple flourished and its priestly officiants brought God’s blessings from the heavens onto the land. Priestly and poor “agricultural tax” requirements suggest that the historical devastation has left the sacred economy of Israel intact. The Jerusalem Temple may be destroyed, but the land remains holy and its produce is still under the Lord’s entitlement. For the redactors of Mishnah, it is the observance of the laws as presented in their code that affirms the presence of God in the Holy Land of Israel. There are also dissimilarities between these two categories of gifts. Terumot 35  See also Brooks, “Support for the Poor,” 17–40; Alan A.  Peck, “The Priestly Gift in Mishnah: A Study of Tractate Terumot,” Brown Judaic Studies 20 (Chico, CA: Scholars Press, 1981), 1–28. 36  Martin S.  Jaffee, “Mishnah’s Theology of Tithing: A Study in Tractate Maaserot,” Brown Judaic Studies 19 (Chico, CA: Scholars Press, 1981), 4–8. 37  See Jaffee, “Mishnah’s Theology of Tithing,” 4–6, for a discussion on Ma’aserot and Peck, “The Priestly Gift,” 1–7, for a discussion on terumot.

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(heave offerings) and Ma’aserot (tithes) must be eaten in purity; they are identified only by the intention of the householder, and the landowner cannot eat the produce until these gifts are given. The Mishnah identifies one legal consideration found within agricultural gifts to the poor that is not found within priestly gifts, gezel aniyim (stealing from the poor). Although mentioned while referring to “gleanings,” the same law also applies to peah and forgotten produce. The Mishnah (Peah 5:6) deviates from its standard practice and offers a proof text to support its claim. “One who does not allow the poor [freely] to collect [gleanings] or if he allows one [poor person] but not another, or if he assists [only] one of them, lo, that [man] robs the poor. With regard to that [man] it is stated in Prov. 22:28, ‘Remove not the ancient landmark.’”38 Mishnah redactors expressed special consideration for the needy; they added a new variable to emphasize the impact of the biblical rulings.39 This ruling suggests a legal right of the poor to their produce. Safrai40 suggests the rabbis’ ruling has a moral base to it.

Care and Compassion Whether legal or moral, Mishnah expresses care or even compassion for the needy, for poverty carries a heightened sense of disgrace and indignity. We find this stance to be a constant variable throughout Mishnah. While Mishnah’s focus is the landowner, the common Israelite who works his land, and not the poor (identical to the case of priestly gifts where the emphasis is upon the householder and not the Priest), the redactors of Mishnah are conveying a message that expresses distinctive feelings toward

38  Kehati, Mishnah with a Commentary vol. 1, 67, explains “the verse in Proverbs ‘Do not remove the ancient [olam] landmark (limits).’ The Sages comment: do not read ‘ancient’ [olam], but rather ‘those coming up [olom].’ … This is a euphemistic reference to those who have come down (i.e., who have lost their property); the verse warns do not violate the rights of the poor and not deprive them of their dues.” 39  Approximately 200 years after Mishnah, the Jerusalem Talmud (YT) (4:1) introduced the phrase gezel hashevet, stealing from the tribe, the tribe being Levi to whom the Priests and Levites belonged. I suggest that this concept was introduced in the YT for similar reasons as the redactors of the Mishnah’s gezel aniyim. That is to say, being many years after the destruction of the Temple, there was less conviction by the Jews to observe matanot kehuna. Thus, the rabbis added a legally binding requirement classifying it as stealing. (See also Safrai, Tractate Pe’ah, 192.) 40  Ibid.

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the destitute.41 While the poor Jew is required to observe rabbinic law like all other Israelites, when the rulings are specifically concerned with the poor, Mishnah prefers to rule in favor of the needy and offers numerous examples to express their caring approach toward the poor. Case 1: M Peah 1:2. They may designate as peah no less than one-sixtieth [of a field’s produce]. And even though they said [in M Peah 1:1] ‘peah has no specified measure’ [the quantity designated] should always accord with: the size of the field, the number of poor people, and the extent of the yield.

Whether the first and second opinions are or are not in disagreement with each other, the Mishnah’s message is clear: Mishnah’s concern is the welfare of the poor. One-sixtieth is not sufficient; the poor must be cared for. The landowner must also consider the size of the field, the amount of produce, and the number of poor seeking agricultural gifts. In contrast to the above, gifts to the kohanim take a different approach. Mishnah Terumot 4:3 states,42 “[This is] the [required] measure of heave offering. [If a man is] generous, [he separates] one-fortieth [of his produce]. The House of Shamai say, one-thirtieth. And [if he is] average, [he separates] one-fiftieth [of his produce]. And [if he is] miserly, [he separates] one-sixtieth [of his produce].” The emphasis in this Mishnah is upon the giver, not the needs of the priests. If he wants to be a bighearted person, his gift is large; he can be average or miserly and offer the minimum gift of one-sixtieth, but the decision is on the giver’s moral or religious conscience. Two agricultural gifts (priests and poor), both with a rabbinical minimum donation of one-sixtieth, both from the produce of the Land of Israel, but with two differing approaches. For terumah, it is dues to the “holy”; for matanot aniyim, it is out of care and a moral obligation to care for the needy. Case 2: M Peah 4:1. Peah is designated from [produce which as yet is] unharvested [cf. Lev. 23:22]. [As regards produce which grows] on a trellis, or [the produce of] 41  Gardner, Organized Charity, 125, suggests that since all the Tannaim were considered well off, they showed empathy toward the needy. 42  Different commentators offer various explanations to Mishnah. Their commentary is based upon a variety of different rabbinical sources. I choose to follow the text standing alone without the influence of other rabbinical sources.

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a palm tree the householder cuts down [the produce] and distributes it among the poor. R. Simeon says, [The preceding rule applies] also to [nuts which grow on] smooth nut trees, [since the poor cannot easily climb these trees to pick the produce]. Even if ninety-nine [poor people] say that [the householder should] distribute [the produce] and [only] one [poor person] says that [the poor should] take [the produce by themselves, leaving the householder out of the distribution process completely], they listen to the latter, [who said that the poor should take the produce themselves], for he has spoken according to law. 4:2. [With regard] to produce which grows on trellis, or [the produce of] a palm tree, this rule does not apply. [In the case of a trellis or a palm tree], even if ninety nine [poor people] say that [the poor should] take [the produce by themselves], and [only] one [poor person] says that [the householder should] distribute [the produce among the poor], they listen to the latter, [who said that the householder should distribute the produce], for he has spoken according to the law [which rules that peah is given from the produce attached to the ground].43

Brooks44 explains this Mishnah: the field owners must permit the poor persons to reap their peah crops since this produce belongs to them. The farmer has no right to harvest or distribute the yield. This would prevent the agronomists from discriminating or showing favoritism to any specific needy person. This then will assure all the poor in the field equal access to the peah produce. Mishnah in this instance chooses to focus upon the needy. It is concerned that while gathering their offerings, they do not climb tall trees without a ladder. Tree climbing for the untrained and without proper tools constitutes a danger and thus the poor seeking their produce might injure themselves. Kehati45 adds that when the needy do climb the tree they may jostle one another in order to grab hold and pick the fruits and therefore are liable to fall, endangering their lives. The field owner owns ladders to aid himself or his workers to collect the crops, while the needy do not. According to Jewish law, the poor can make the final decision as to whether or not they should collect from the tree. Mishnah’s redactors clearly manifest a compassion for the needy. Safrai46 43  For a discussion on these types of trees and the agricultural fears and concerns of Mishnah, see Safrai, Tractate Pe’ah, 145–151. 44  Brooks, “Support for the Poor,” 73 45  Kehati, Mishnah with a Commentary, 39. 46  Safrai, Tractate Pe’ah.

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argues that the intent of the Mishnah’s concern is for the welfare of the trees or crop, rather than the needy. He bases his argument upon Tosefta that “offer live descriptions of clashes between the poor and therefore, the fear is that they will harm the trees.” He determines that if one concludes that the issue is to protect the poor, one is not presenting the law but rather attempting to offer ethical and moral considerations. I do not accept Safrai’s understanding of this Mishnah. I suggest that an overall review of Mishnah and particularly Tractate Peah will reveal a special concern for the destitute (as I will demonstrate in this essay). Tosefta, although part of Tannaitic literature, has its own agenda (or agendas) that requires further investigation, but what is clear is its agenda, its voice, is not necessarily corresponding to Mishnah. Case 3: M Peah 5:3. They may not [irrigate a field] with a waterwheel [before the poor have collected gleanings, because this will make the field so muddy that it will be difficult for the poor to collect gleanings], the words of R. Meir. But the sages permit [such irrigation] for it is still possible [for the poor to collect gleanings].

The Mishnah focuses on whether or not a farmer may tend his field before the poor have completed to collect their gleanings. In this paragraph, Mishnah’s redactors express their concern for the material welfare of the poor, especially in an instance that makes it challenging for the ani to collect his offerings.47 Irrigating one’s field before the needy have completed to gather their offerings is such a case. Landowners might desire to irrigate their fields immediately after harvesting. The wish to irrigate can be understood as an agricultural need or a means of guarding the field from intruders, such as the poor, who want to continue collecting their gifts and thus (by irrigating) impeding on the poor’s inviolable right to gather their sustenance without concern. Irrigating the field would not only make entrance into a muddy field cumbersome but would also destroy whatever gleanings were still available, thus discouraging the poor from entering the field. Not all crops require immediate irrigation; some do (as in orchards) and some do not.48 Tosefta 2:20 amends Mishnah and offers  See Brooks, “Support for the Poor,” 92.  Fields, such as two-year crops or when the field owner seeks to soften the earth for easier plowing, require irrigation immediately after the harvest. I want to thank my son Noam for his expert insights into these issues. 47 48

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a different solution.49 Tosefta rules to permit the field owner to interfere with the natural process of matanot aniyim in order to guard his property. He simply moves the poor’s produce to a dry place and after that irrigates his field averting loss to both parties. If we only focus upon Mishnah it can be assumed that whatever the intention of the landowner, whether watering the field is required or not, Mishnah sides with the needs of the poor and forbids the field owner from irrigating until the poor complete collecting gleanings. Case 4: M Peah 4:11. [As regards] anthills in the midst of a standing [crop] – lo, [grain which falls into them] belongs to the householder, [for produce does not become subject to the law of gleanings until after the harvest]. After the harvesters [have gone through the field], the [grain at the] top [of the anthills, which fell after the harvest, belongs] to the poor, while the [grain at the] bottom [of the anthills, which probably fell before the harvest,] belongs to the householder. R. Meir says, “All [grains], which falls into anthills after the harvesters have gone through the field belongs] to the poor, for [all produce concerning which there is] a doubt about its status as gleanings [in fact is deemed to be in the status of] gleanings (safek leket leket).

Mishnah’s redactors include R. Meir’s law, in order to emphasize their concern to prevent misappropriation of this food, any of which might in fact have the status of gleanings, for all is to be given to the needy.50 Brooks, citing the Mishnah Rishonah commentary,51 adds, “For the notion that we must prevent the householder from taking produce that might be reserved exclusively for the poor.”52 Case 5: M Peah 7:5. He who thins [grape] vines, just as he [is allowed] to thin his own [produce, the normal clusters], so may he thin [the defective clusters] which belong to  See Safrai, Tractate Pe’ah, 182–184, for a discussion on this issue.  Tosefta, following its literary pattern, tends to favor the farmer over the poor. See Tosefta Peah 2:16. 51  Brooks, “Support for the Poor,” 189, footnote 30. 52  Kehati, Mishnah with a Commentary vol. 1, 56–58, goes to great lengths to demonstrate that in the case of leket we go beyond the letter of the law in favor of the poor. Safrai, in Tractate Pe’ah, (51), follows this same line of thought and writes that it is not based upon the standard laws of doubt, but it expresses the Tanaaic approach to upsurge matanot aniyim. 49 50

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the poor, the words of R. Judah. R. Meir says, He is permitted to thin his own [produce], but he is not permitted [to thin produce] which belongs to the poor.

This Mishnah is concerned with pruning faulty clusters from their vines, in order to improve the crops. If the farmer pursues this approach, he denies the poor of their due. While the debate between R. Judah and R. Meir can be attributed to halakhic principles,53 the concern for the poor is manifested. Brooks54 offers his understanding of Meir’s opinion. “Underlying Meir’s view, I discern a subtle theory. Defective clusters are designated by their very nature; the householder, for his part, plays no role in determining which grapes must be left for the poor. Similarly, Meir rules, the householder should have no part in determining when the law takes effect. The poor may take the defective clusters immediately after they form, without waiting for the householder to begin to reap his vineyard.” However, one may prefer to read this Mishnah, that both rabbis are expressing their concern for the poor person beyond the required letter of the law. R.  Yehudah seeks an improved crop for the poor and R.  Meir wishes the immediate release of the clusters even though they may be defective, since they are the property of the needy. Case 6: M Yadayim 4:3. On that day they said: What of Ammon and Moab in the Sabbatical year? Rabbi Tarfon decreed [that they give] poor man’s tithe. And R. Eleazar b. Azariah decreed [that they give] second tithe. Said Rabbi Ishmael, “Eleazar b. Azariah: You must bring forth proof, since you gave a stringent ruling. For anyone who gives a stringent ruling must bring forth proof.” Said to him R.  Eleazar b. Azariah “Ishmael my brother: I have not changed the order of the years. Tarfon, my brother changed it, and must bring proof.” R. Tarfon answered, “Egypt is outside the Land [of Israel], and Amnon and Moab are outside the Land. Therefore [just as in] Egypt, a poor man’s tithe [must be given] in the Sabbatical year, so [in] Ammon and Moab, poor man’s tithe [must be given in the Sabbatical year].” R.  Eleazar b. Azaria answered, “Babylonia is outside the Land, and Ammon and Moab are outside the Land. Therefore, [just as in] Babylonia, second tithe [must be given] in the Sabbatical year, so [in] Ammon and Moab second tithe [must be given] in the Sabbatical year.” Said R. Tarfon, “Egypt, which is near [the  Brooks, “Support for the Poor,” 128.  Ibid., 129.

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Land], have they made liable for poor man’s tithe, so the poor of Israel may depend upon it in the Sabbatical year. So too Ammon and Moab, which are near [the Land] have they made liable for poor man’s tithe, so that the poor of Israel may depend upon them in the Sabbatical year.” R. Eleazar b. Azaria said to him, “Lo, you are like one who would bestow [on them] worldly gain, yet you are like one who would cause them to perish. You would close up heavens so they send down neither dew nor rain, for it is written will a man rob God? Yet you rob me, but you say, wherein have we robbed you? In tithes and heave offering (Mal. 3:8).” Responded R.  Tarfon, “Said R.  Joshua, lo I am like one who will respond on behalf of Tarfon, my brother, but not according to his reasoning. [The rule concerning] Egypt is a new decision, and that concerning Babylonia is an old decision, and the issue before us is a new decision. Let that which involves a new decision be derived from [that] which involves a new decision, but let not that which involves a new decision be derived from that which involves an old decision. The rule concerning Egypt is the decision of the elders. But the rules concerning Babylonia are the decision of the prophets. And the issue before us involves a decision of the elders. Let the rule concerning a decision of the elders be derived from the rule concerning a decision of the elders, and let not the rule concerning a decision of the elders be derived from a rule concerning a decision of the prophets.” They voted and decided: Ammon and Moab give poor man’s tithe in the Sabbatical year. And when R. Yose the son of the Damascene came to R. Eliezer at Lydda, he [R. Eliezer] said to him, “What new thing have you [learned] in the study hall today?” He said to him, “They voted and decided: Ammon and Moab give poor man’s tithe in the Sabbatical year.” R. Eliezer wept saying, “The secret of the Lord is with those that fear him, and he will show them his covenant (Psalms 25:14). Go and tell them, do not be anxious about your vote. I have received a tradition from R. Yohanan b. Zakkai, who heard from his teacher, and his teacher from his teacher, a law given to Moses at Sinai, that Ammon and Moab give poor man’s tithe in the Sabbatical year.”

This Mishnah’s concern is the separation of two types of tithes, ma’aser sheni and ma’aser ani during the Sabbatical year. During the Sabbatical year, all produce in the fields are deemed ownerless and therefore no tithes are required to be given. These two tithes are separated from the produce or fruits during the third and sixth years of the Sabbatical or seven-year cycle. The rabbis in countries such as Babylonia, Egypt, and the lands of

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Ammon and Moab55 required the giving of terumah and ma’aser. Since the laws of the Sabbatical year do not apply to these countries, there should be no legal justification to exempt them from continuing to separate these gifts. Our Mishnah focuses upon Ammon and Moab; it discusses which of the two tithes, ma’aser sheni or ma’aser ani, does the field owner separate during the Sabbatical year. This lengthy but fascinating dialogue between the rabbis points to one conclusion, the welfare of the poor. The Mishnah explicitly declares that “the poor of Israel may depend upon it in the Sabbatical year.” The poor found it necessary to search for sustenance even outside the borders of Israel and the rabbis sought to assist them. Mishnah’s concern was for the poor (ma’aser ani) and not ma’aser sheni. The landowners in these countries, outside the boundaries of the Land of Israel, are required to give the tithe to the poor (but not other types of tithes56). Case 7: M Avot 1:5. R. Yose b. Yohanan of Jerusalem says, let your house be wide open, and seat the poor at your table and make the needy members of your household.

Though M Avot was compiled approximately a century after Mishnah,57 I am including it in my discussion of Mishnah’s ani. I have found this tractate to compliment and suggest the same message or voice as rest of Mishnah; thus its presence in the code and in my discussion of the world of Mishnah. The Mishnah in Avot 1:5 is telling us that one should not only open their doors to scholars but also for the poor. There are commentators who understand the term “household” (bnei beitekha) to translate as servants or slaves,58 but the majority of the rabbinical interpretations understand this text to mean that one host the needy and assist them. Both elucidations 55   Pinchas Kehati, Mishnah with a Commentary by Rabbi Pinchas Kehati, Vol. 21 (Jerusalem: Department of Torah Education and Culture in the Diaspora, 1996), 38, notes that these two countries do not refer to the Ammon and Moab that were conquered by Sihon and subsequently by Israel, since the territory is part of the Land of Israel called Transjordan where the laws of the Sabbatical year apply by rabbinic decree. 56  Since ma’aser sheni required a pilgrimage to Jerusalem, the rabbis’ understanding of the difficulty possibly allowed this to influence their decision. 57  See Jacob Neusner, Torah From the Sages: Pirke Avot (Chappaqua: Rossel Books, 1983), 3–8, who discusses the history of Tractate M Abot. 58  See Zev Safrai, Mishnat Eretz Israel: Tractate Avot (Neziqin 7). (n.p.: Mishnat Eretz Israel Project, 2013), 58.

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are consistent with Mishnah redactors’ concern for the welfare of the destitute. Whether it is to offer the poor employment or outright monetary assistance, in both instances the message being conveyed is care and compassion. Loewenberg59 argues that home hospitality for the poor was the norm at the time of Mishnah. Although these provisions were implicitly and explicitly commanded in Scripture, there was no way to enforce this norm. Mishnah’s statement offered a legal and/or spiritual motivation linking it to divine presence. Case 8: M Avot 5:9. At four turnings in the years pestilence increases: in the Fourth Year, in the Seventh Year, in the year after the Seventh Year, and at the end of the Festival [of Tabernacles] every year: in the Fourth Year, because of the poor man’s tithe of the Third Year [which people have neglected to hand over to the poor]; in the Seventh, because of the poor man’s tithe of the sixth year; in the year after the Seventh Year, because of dealing in produce of the seventh year; and at the end of the Festival every year, because of the thievery of the dues [gleanings and the like] owing to the poor [not left for them in the antecedent harvest].

This Mishnah augments the theme of the M Avot 5:8, which enumerates different types of calamities, which may come upon this world as a means of divine retribution for transgressions of His will. One of these wrongdoings is not bringing the required agricultural gifts on the fourth year of the Sabbatical cycle.60 The Mishnah adds working the land in Israel on the Sabbatical year as an additional cause for misfortune to occur. From the list of reasons for the various disasters offered, not fulfilling one’s obligations to the poor is mentioned three times. Twice for withholding from the needy ma’aser ani and again for not observing the various matanot aniyim (leket, shikhekhah, and peah). The Mishnah redactors term this transgression as “stealing from the poor,” suggesting (as I discussed earlier) an additional offense to Scripture’s requirement. I suggest the redactors of Mishnah are expressing concern for the poor by including the care for the needy in this list of calamities numerous times, thus emphasizing the observance of the mitzvot and severe consequences when neglected. Case 9: M Bava Metzia 6:7.  Loewenberg, “Provisions for Poor Travelers,” 200.  See my discussion of Mishnah Yadayim.

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Abba Saul says, it is permitted for a person to put out on hire a pledge left by a poor man and so reduce [the debt] on its account little by little, for he is like one who gives back what someone has lost.

Gardner61 explains of this Mishnah that it “upholds and elaborates on the Biblical rule that the pledge of a poor person must be returned so that the borrower may use it.” The Mishnah, out of concern for the poor, is attempting to assist the needy by reducing his debt. This is accomplished by deducting the rental money that is received from the use of the poor person’s pledge. Case 10: M Shekalim 5:6. Two chambers were in the Temple, one, the chamber of secrets [gifts], the other, the chamber of utensils. The chamber of secret gifts: Those who fear sin secretly put their contribution into it, and poor folk of good family live off the proceeds [which they receive] in confidence.62

The redactors of Mishnah not only expressed their concern for the material and physical welfare of the poor but also their dignity. Gardner63 clarifies that dignity and honor were fundamental principles of rabbinic Judaism and thus they played an important role in how the rabbis instructed their followers to deal with the poor. The Mishnah discusses the chambers in the Temple, which included the “chamber of secrets.” In this chamber, money was discretely received and distributed to the needy.64 In contrast to other cases of charity, the givers and the receivers were not publicly announced.65 Safrai (2009, pp. 190–191) argues66 that organized charity by the rabbis was unique in antiquity. While this point can be substantiated from other early rabbinic documents, Mishnah offers little

 Gardner, “Charity Wounds,” 181.  See Gardner, Organized Charity, 18–19, for a discussion on the relevance of the history of this Mishnah. 63  Ibid., 35. 64  Tosefta states that such chambers existed for the benefit of the formerly wealthy poor in every city. Mishnah does not elaborate on this topic since its concern is not organized charity but primarily agricultural gifts. 65   Shmuel Safrai and Zev Safrai, Mishnat Eretz Israel: Tractate Skalim (Jerusalem: E.M. Lipshitz Publishing House College, 2009), 189, discuss this point. 66  Also, see Gardner, Organized Charity. 61 62

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information concerning the organized charity in the period of Mishnah67 where we find a limited number of examples of organized charity. In addition to Mishnah Shekalim there is reference in Mishnah Peah 8:7 to the “soup kitchen” and “communal fund.” Mishnah’s primary focus is upon the agricultural gifts ordained by Scripture. With this being said, the fact is the Temple is portrayed as a place that distributes charity to the poor. Although alms were available for all poor, Mishnah redactors, concerned with the self-respect of the poor, chose to emphasize charity for “good families, who lost their riches.”68 For the destitute, where poverty had become a way of life, it was more important to receive the charity than how it was distributed. For those who were previously in the class of the givers, how they received assistance, how to avoid the embarrassment of being labeled a beggar, was important. To this challenge, the redactors of Mishnah were cognizant and showed empathy.69 The Mishnah in Bava Kama 8:6 continues to express this concern for the dignity of the poor. He who boxes the ear of his fellow pays him a sela. R. Judah says in the name of R.  Yose the Galilean, a maneh. [If] he smacked him; he pays him two hundred zuz. [If] it is with the back of his hand, he pays him four hundred zuz. [If] he tore at his ear, pulled his hair, spit, and the spit hit him, pulled off his cloak, pulled apart the hairdo of a woman in the marketplace, he pays four hundred zuz. This is the governing principle: Everything is in accord with one’s station. Said R. Aqiba, even Israelites do they regard as gentle folk who have lost their fortunes. For they are the children of Abraham, Isaac and Jacob70….

R. Aqiba disagrees with the first opinion stated in Mishnah, which differentiated between a chronically poor person and a wealthy person of 67  Tosefta, on the other hand, devotes considerable attention to the topic of organized charity. Gardner discusses this at length throughout his book. I will discuss this at the conclusion of this essay. 68  Safrai, Tractate Skalim, 191, traces the historical development of this phenomenon. He explains that the fall of rich from their positions was common at the end of the Second Temple period. 69  See Gray, “The Formerly Wealthy Poor,” 105–109, who discusses this issue at length. 70  The concept that all Jews are children of the patriarchs is also found in Mishnah Berakhot 1:2 and Shabbat 14:4. Other Tannaitic documents such as Tosefta and Sifrei differentiate between class status and class differentiation, but I believe Mishnah presents great equality between wealthy and poor as well as formerly wealthy poor and poor persons.

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high standing. The former would be entitled to less compensation for public humiliation. R. Aqiba categorizes these poor as persons who were formerly wealthy and therefore entitled to a greater payment for their public disgrace. Gray71 suggests that in contrast to the first opinion, which views the poor from the perspective of or in accordance with empirical social reality, R.  Aqiba sees the formerly wealthy poor as an ideological category. The shared honorable past of all Jews is what places the poor alongside the wealthy.72 Gray73 attributes the empathy of the Tannaim to the formerly wealthy poor to “an external economic situation that began to decline at the end of the second century, although the situation did not apparently become dire until roughly the middle of the third century CE.” While the social and economic reality of the period is important for the understanding of Mishnah, our concern is Mishnah’s voice and message. This message clearly is concerned with the avoidance of humiliation of the poor.74 Hellinger75 understands the organized charity distribution found in Mishnah Peah 8:8 to be an additional method of protecting the dignity of the poor. The Mishnah editors would seem to prefer organized charity distribution to begging. Begging can be a humiliating activity while receiving a gift through the “kuppah” system would not require being public.76 I have not exhausted all proof texts from Mishnah, but I believe the cases presented will substantiate my argument.

Personality Traits of Mishnah’s Poor When Mishnah discusses character or personality traits of the needy, it is presented in the context of a specific law being discussed.  Gray, “The Formerly Wealthy Poor,” 106.  It should be pointed out that R. Aqiba was a charity administrator possibly including responsibilities for social welfare. See Gray, “The Formerly Wealthy Poor,” 122, and footnote 88. 73  See her footnote 61 for a bibliographical list that discusses the economy of this period in Roman Palestine. 74  While Mishnah clearly differentiates between classes of Jews that were based upon birth as well as intellectual and spiritual attainments (see Mishnah Horayot 3:8), the poor is not one of these classes. 75  Michael Hellinger, “Quppat Ha-tzedakah ve-haaniyim ha-machzarim al ha-petachim,” Shematin 174 (2009), 93–100 [Hebrew]. 76  This approach is emphasized in Tosefta 4:8. 71 72

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A. Aggressiveness Case 1: Mishnah Peah 4:1–2 discussed above informs the reader that the householder retrieves the fruits for the poor out of fear. For if they climb the tree, they might struggle over the produce and cause injury to one another. In Mishnah Peah 4:3, the rabbis write, “[As regards] peah-­ they [the poor] may not harvest it with sickles, nor may they uproot it with spades, so that [poor] people will not clobber each other [with garden tools].” The poor person struggling for their substance will go to any length to claim their foodstuff. If they have easily available sharp tools that could be used as weapons, they might choose to be violent and will use them to strike their fellow poor. Case 2: M Gittin 5:8. “And these are the rules did they state in the interest of peace… A poor man beating the top of an olive tree-what is under it [the tree] is subject to the rule against stealing in the interest of peace. Rabbi Yose says, ‘It is stealing beyond any doubt.’” The Mishnah is concerned about brawling among the poor who are attempting to gather their basic sustenance. If Mishnah did not rule in this case, the poor would express their belligerence and snatch the produce that had not been secured at that particular moment. Thus, Mishnah is articulating an additional instance of aggressiveness by the poor. Case 3: We find in Mishnah Sheviit 9:7 that the poor have no consideration for the farmer’s fields and would seek their allotments even at the expense of the well-being of the property. “Until when may the poor enter the orchards [to glean the corner of the field]? Until the second rainfall. After what time may they derive benefit from or burn straw and stubble [of the Sabbatical year]? After the second rainfall.” The Mishnah was required to determine specific time periods that the poor could collect their produce; otherwise they would forcibly enter the farmer’s field without any consideration of his needs. B. Trickery or Stealing The Mishnah offers various cases that depict the poor as liars, thieves, and charlatans.77 Mishnah does not consider these traits unique to the needy but a character trait in any businessperson. For example, in M Peah 77  See Gardner, Organized Charity, 169–175, who discusses the theme of those who are imposters acting as poor persons.

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7:3, while discussing the laws of fallen fruit from the vineyard, Mishnah writes, If one [the farmer] places a basket under the vine while he harvests [in order to catch the grapes which fall, so that they will not be in the status of separated grapes and thus forbidden to the poor] lo, that man steals from the poor. Concerning that man it is stated ‘Remove not the landmark of the poor’ [a play on words on Prov. 22:28 which reads ‘Remove not the ancient landmark’].

In this case, it is the landowner who seeks to cheat the poor. The field owner cannot misappropriate produce that lawfully belongs to the needy and to catch grapes as they fall to the ground would be considered theft. The theme and cases of the rabbinic Jew as a possible liar and thief is found throughout rabbinic literature primarily in the Order of Damages. Case 1: M Peah 5:7. A sheaf which workers forgot, but which the householder did not forget, which the householder forgot, but which the workers did not forget, [or if] poor people stood in front [of a sheaf] or covered it with straw [in order to hide it so that the workers would forget it], lo, this [sheaf] is not [subject to the restrictions of the] forgotten sheaf, [for either the poor received it by deception, or it was never forgotten by both the worker and the householder].

Safrai78 sees this Mishnah as part of the “field experiences.” The poor attempt to trick the field owner by hiding produce so as to later claim it as forgotten sheaves. Brooks79 adds an important consideration: “This rule also assures that God alone, through process of random chance, determines what falls into the category of forgotten sheaves.” In other words, the poor or the farmer cannot cheat; God has decided and set the rules.80 C. Clothes, Food, and Hygiene Case 1: M Kelim 28:8. “The clothes [paupers’ garments] of the poor, even though there is not on them three by three [fingerbreadths], lo, these are susceptible to midras uncleanness.” The Mishnah, while  Safrai, Tractate Pe’ah, 194–195.  Brooks, “Support for the Poor,” 97. 80  Tosefta 5:6 and 7 expand on what is and is not considered forgotten. 78 79

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discussing the laws of purity, offers a description of the pauper’s garments, which are patched together from scraps of cloth. Case 2: M Mikvaot 10:3. “These [are the objects] which do not require that the water enter into them: the knots of the poor man…” Mishnah is offering an additional description of the poor person’s garments. As a result of their clothes being shredded, the destitute will tie their torn garments into tight knots without ever untying them. The Mishnah thus rules when immersing in the ritual bath it is not required to loosen them. Again, we find in this Mishnah how the redactors viewed and described the outer clothing of the poor. This might be the social reality of third-­ century Palestine, but I am concerned with how Mishnah in this case, as well as the other mishnayot cited, presents these descriptions thus creating the different components of the world of Mishnah. Case 3: M Mikvaot 9:5. “These interpose in utensils … on the beds belonging to the householder it interposes, and on those belonging to the poor man, it does not interpose.” Mishnah is concerned with objects that can interpose while immersing a vessel in the ritual bath and therefore deeming the immersion invalid. For the householder who insists on clean beds, pitch or gum that would dirty the vessel would interpose. In the case where an individual, such as a poor person who is not considered so fastidious about cleanliness and does not mind the dirt, it does not interpose. The redactors of Mishnah are offering a glimpse into another trait of the poor, their hygiene. Case 4: M Nedarim 9:10. A certain man prohibited by vow that from the daughter of his sister he should derive benefit. And they brought her into the house of R. Ishmael and made her beautiful. Said to him R. Ishmael, My son, did you ever take a vow about this lass? He said to him “never!” And R. Ishmael declared his [vow] not binding. That moment R. Ishmael wept and said, “Israelite girls really are beautiful but poverty makes them ugly.” And when R.  Ishmael died, Israelite girls took up a lamentation, saying, “Israelite girls weep over R. Ishmael.”

If we take this parable literally, it is not surprising that lack of proper nutrition and a bad lifestyle would have a negative effect on the body, including facial features. Case 5: M Shabbat 18:1. Mishnah discusses types of food that are permitted to carry on the Sabbath; dried lupine for the poor is permitted, but

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not the rich who would not eat from this food type. “They clear away… and dried lupine, for it is food for poor people.” Mishnah offers an additional glimpse into the life of the poor, the type of food they are compelled to eat.81 D. Itinerant or Indigenous Mishnah addresses the poor as both one who roams from place to place and a local resident.82 In fact, almost all travelers are considered poor and are permitted to receive sustenance as well as their other basic needs. I suggest that since traveling during the time of Mishnah was dangerous, travelers preferred not to carry money with them during their journey.83 Thus the following Mishnah: Case 1: M Peah 5:4. [As regards] a householder who is travelling from one place to another, and [because he has no money] he needs to collect gleanings, forgotten sheaves, peah or poor man’s tithes, let him collect [what he needs]. And when he returns to his home, he should repay [the amount of produce he took as a poor person, for he never actually was poor], the words of R. Eliezer. But the sages say, [He need not repay, because in fact] he was a poor person when [he collected produce designated for the poor].

For the purpose of our analysis, the issue to be considered is who falls into the category of being poor. Although one might have personal wealth but, at this particular time, he has no access to his assets, so he is grouped with the poor. Case 2: M Peah 8:7. They give to a poor person travelling from place to place no less than a loaf [of bread] worth a dupondius [made from wheat that cost at least] one sela 81  Gardner, Organized Charity, 49–53, offers a more detailed discussion on foods and clothes of the poor. He also includes the information from Tosefta. 82  See Loewenberg, “Provisions for Poor Travelers,” for complete discussion and description of “provisions for poor travelers.” 83  See Safrai, Tractate Pe’ah, 185–186, who offers a more elaborate description of travelers during the time of Mishnah. See also Gardner, Organized Charity, 100, who explains, “It was dangerous to be a stranger or traveler in the ancient world, as they were easy to prey for bandits along the roads, would be exposed to inclement weather, and might not be able to procure sufficient food.”

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for four seahs. [If such a poor person] stayed overnight, they must give him enough [food] for a night’s lodging. [If the poor person] spends the Sabbath, they must give him food for three meals.84

Again, we find a characteristic of the poor to travel from place to place seeking needed or basic substance. Case 3: M Sotah 9:6 discusses the ceremony performed when a body is discovered between two communities. The elders of the town wash their hands in the place in which the neck of the heifer is broken, and they say, “Our hands have not shed this blood, nor did our eyes see it”. (Deut. 21:7). Now could it enter our minds that the elders of a court might be shedders of blood? But [they mean:] He did not come into our hands and we sent him away without food. And we did not see him and we let him go along without an escort.

What is of importance for us is that the community is found blameless since the murdered man had not asked for help. That is to say, the town’s elders were not guilty of allowing the person to leave without providing food or escort. Loewenberg85 suggests that there existed at the time of Mishnah some communal arrangements for providing poor travelers with food and escort. Our concern in this essay is not the conditions offered to the poor but rather a common characteristic of the poor, which is to travel from community to community seeking the different forms of Jewish charity. E. Fulfilling Mitzvot I discussed above Mishnah’s perception of the poor Jew as an insider that is obligated in the fulfillment of all mitzvot. Mishnah identifies a number of these obligations. Two different mishnayot cited above portray the characteristic of the poor to fulfill the mitzvot. Case 1: Mishnah Shabbat 1:1 discusses a case of a beggar. Even though he is penniless, he cannot violate the Sabbath to receive charity.

84  Tosefta 4:8 elaborates on the details of this Mishnah. See Brooks, “Support for the Poor,” 146–151, and Safra, Tractate Pe’ah, 273–274. 85  Loewenberg, “Provisions for Poor Travelers,” 201.

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Case 2: Mishnah Pesahim 10:1 states that there is an obligation to provide the destitute with enough wine to fulfill the mitzvah of four cups of wine at the traditional Passover seder. Case 3: In Mishnah Tractate Peah 8:7 (cited earlier), the community, by means of the soup kitchen or communal fund, is required during the week to give the traveler two meals a day and on the Sabbath to give this itinerant three meals. Mathematically, the total number of meals offered during the entire week would not change since technically two meals are given on Friday and two on Saturday; the Mishnah, by identifying the three Sabbath meals, is emphasizing the obligation even for the penniless individual to eat the three required Sabbath meals as do all other Jews. F. Poor Gentiles While the poor Jew is viewed by Mishnah’s redactors as an insider, the poor Gentile is an outsider. Mishnah’s focus is upon the world of the rabbinic Jew (including the Jewish destitute) and any other group outside the world of the rabbis was not their concern. In the case of the Gentile poor, the possible social reality of Mishnah’s prescribed world was relevant. They were there alongside the Jewish poor. For Mishnah’s redactors, this posed a dilemma of how to consider their involvement. Case 1: The Mishnah in Gittin 5:8, while discussing different instances where the rabbis applied the principle of “mipnei darkhei shalom” (in the interest of peace), writes, “They do not prevent poor gentiles from collecting produce under the laws of gleanings, the forgotten sheaf and the corner of the field, in the interest of peace.” This Mishnah first appears in M Sheviit 4:3 and then in 5:9. The opening of the Mishnah (in Sheviit 4:3) reads, “During the Sabbatical year they [Jews] lease from gentile’s fields newly plowed [during that year for the purpose of cultivating them during the following year,] but [they do not lease] from an Israelite [a field that he has plowed during the Sabbatical year, in violation of the law].” This opening is not repeated in the other two Mishnaic citations. It is clear throughout the entire Mishnah that the focus is upon the Jew and not the Gentile. The Gentile’s role is to assist the Jew to better function in his world of Mishnah.

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This case implies that even though the Land of Israel is holy and should not be worked by either Jew or Gentile during the Sabbatical year,86 one cannot prohibit the Gentile from working the holy land. If this were the only consideration, the Jew should not encourage the Gentile to work the land excluding the case of mipnei darkhei shalom, a principle formed by the rabbis for such cases. By maintaining a harmonious relationship with the Gentile, the Jew will receive financial gain by having a plowed field in the eighth year ready to plant, in addition to gaining security and friendship. Case 2: M Gittin 5:9. “They give assistance to gentiles in the seventh year but not Israelites. And they inquire after their welfare, in the interest of peace.” Implied in Mishnah’s statement is that a poor Gentile is forbidden to receive gifts of produce. As stated above, Mishnah is not interested in the welfare of the Gentile but rather in that of the rabbinic Jew and its ideal world.87 The concern here is not only for the security of the destitute Jew seeking these gifts but also has financial implications. As shown in the above case, the poor can tend toward violence. If the needy Gentile could not share in these gifts, that could lead to the destruction of property as well as to financial loss both for the poor Jew and for the proprietor of the field. This amended ruling is designed to prevent Gentiles from claiming that Jewish law discriminates between Jew and Gentile and is thereby intended to reduce conflict. Ultimately, the Jews gain, as it is in their interests to prevent enmity.88

Concluding Remarks Mary Douglas,89 in her foreword to Marcel Mauss’ book The Gift, writes,

86  This is implied in the passage in Leviticus 25:3 that states that the land should rest on the seventh year. 87  Tosefta in Gittin 5 offers an autonomous statement that the poor Gentiles are supported along with the Jew. I believe this to be a separate statement independent of the agenda of the redactor of Mishnah with its own agenda. 88   See Simcha Fishbane, “Mine Darkei Shalom: The Promotion of Harmonious Relationships in the Mishnah’s Social Order.” Studies in Judaism, Humanities and the Social Sciences, 2017. 89  Mary Douglas, “No Free Gifts.” Foreword to The Gift: The Form and Reason for Exchange in Archaic Societies, by Marcel Mauss, vii–xviii (New York and London: W. W. Norton, 1990).

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Charity is meant to be a free gift, a voluntary unrequited surrender of resources…This book explains the lack of gratitude by saying that the foundations should not confer their donations with gifts…. It is the whole idea of a free gift is based on misunderstanding. There should not be any free gifts. What is wrong with the so-called free gifts is the donor’s intention to be exempt from return gifts coming from the recipient. Refusing requital puts the act of giving outside any mutual ties. Once given, the free gift entails no further claims from the recipient…. Even the idea of a pure gift is a contradiction.

Keeping Douglas’ presentation of gifts in mind, I will deliberate Mishnah’s understanding of gifts to the poor. Two types of allocations to the needy are discussed in Mishnah: (1) charity, monies, or goods (including foodstuffs) given to the destitute (heartfelt), and (2) matanot aniyim or agricultural gifts. Mishnah’s primary focus is upon the latter where there are those that allocate the Lord’s designated portion of the produce and those eligible to gather it (designated). Although both these charities are religious obligations, matanot aniyim (the poor’s gifts) are not gifts or donations from the field owner, thus placing them in a different category than charity. Scripture allocated these agricultural products. In other words, they are gifts from the Lord and not from the farmer. Gardner90 describes the relationship between the farmer and the poor as being “objectified as mere vessels through which householders fulfill religious obligations that require the participation of the poor.” Elsewhere,91 he elucidates, “The landowner or the harvester does not give this produce to the poor. There is no agency on his part. Rather, the harvester’s obligation is to refrain from interfering with the distribution of provisions to the poor by God, who is the benefactor of peah, gleanings and so forth, not humans.” Gardner has presented only half of the scenario. The farmer has an important religious role in this process. While the agricultural gifts to the poor are from God, the farmer’s participation in this course of events makes him a messenger of the Lord; thus the field owner is performing a mitzvah. Mishnah’s concern is the religious performance of these agricultural activities. Simmel92 emphasizes this suggestion: “Among the ancient Semites the claim of the poor for participation in meals did not have a 90  Gregg E.  Gardner, “Who Is Rich? The Poor in Early Rabbinic Judaism,” The Jewish Quarterly Review 104, no. 4 (Fall 2014), 529. 91  Gardner, Organized Charity, 31. 92  Simmel, Sociology, 412.

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correlate in personal generosity but in social membership and religious custom, where care for the poor has a sufficient basis in an organic linkage among the members  – whether it derives religiously from metaphysical unity or from biologically based tribal or familial unity.” Thus, the entire concept of the free gift as presented by Mauss is not applicable when we are referring to a religious obligation such as matanot aniyim. The householder cannot choose what produce to give, where in the field to designate the allocation. This is all dictated by Scripture and clarified by the rabbis. The farmer is fulfilling his mitzvah and the needy are aiding toward the achievement of this endeavor.93 The idea of gift reciprocity may be viewed differently. The poor’s collecting of the agricultural products may be regarded as a return gift to the farmer. The needy are aiding the field owner to satisfy the mitzvah of matanot aniyim. Most scholars writing on the topic of poor in the Tannaitic period do not differentiate between the various Tannaitic works (primarily between Mishnah and Tosefta). Peck (1981, p. 27) elucidates, that Tosefta is certainly the most important tool for interpretation and clarification of Mishnah. I would agree that many of Tosefta’s pericopes amend Mishnah’s laws but that does not detract from the fact that the redactors of Mishnah have a different agenda (or agendas) than Tosefta. The case of the poor is such an example. Mishnah’s emphasis is upon the agricultural gifts based upon the passages in the Torah. There is brief mention of organized charity at the conclusion of Tractate M. Peah 8:7–9, where they refer to the kuppah (communal fund) and the tamhui (soup kitchen) and who receives from these gifts. Mishnah also uses direct charity to the poor to illustrate specific laws such as in M. Demai 3:1 and 5:1, M. Shabbat 1:1, M. Shekalim 2:5, and M. Tohorot 7:9. Tosefta, on the other hand, expounds on organized charity explaining in greater detail what these charities do and how they function. Gardner (2015, p. 213) suggests that these two volumes present two alternate conceptions of the poor. The Mishnah sees the needy in economic terms. One falls into this category if he fails to meet specific defined thresholds. I suggest that what the redactors of Mishnah chose to focus on is the primary agenda,94 the Land of Israel. Mishnah redactors’ issue is the laws governing agricultural gifts as a context in which to provide a larger picture of its notion of sanctification and of the 93  Simmel, ibid., 411, discusses the challenge for society dealing with poor that believe they deserve the community’s charity. 94  This might not be its only primary message that it seeks to convey.

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safe conduct of the holy though the profane world.95 Jaffee explains (1981, p. 4) that this determines the assertions of man and God through the produce of the Land of Israel. In other words, it is the relationship of the Israelites to their ancestral Land of Israel. Mishnah came into being during a period in Jewish history when the Jerusalem Temple, the visible symbol of His presence, was destroyed, a time in which the priesthood itself has lost its cultic function or religious authority over the people of Israel and the Jewish hope for God’s triumph over Israel’s adversaries was not ­anticipated in the immediate future. Even the messianic attempt to regain sovereignty through military might did not succeed. God still owned the Land of Israel and through it takes special care of the Jewish nation. Peck, (as cited in Neusner96), argues, “Only in light of these facts should Scripture’s prohibitions and tithing requirements still have effect.” Peck continues, “Mishnaic treatment of the agricultural law therefore acknowledges that in planting, Israelites come into contact with and control holiness. In this, their powers and responsibilities parallel those of the priests who once ministered at the altar of the Jerusalem Temple.” (This issue of rabbinic authority as an umbrella agenda for Mishnah’s redactors is important but not the focus of this essay.) This was during a period when agriculture was the foundation of the ancient Mediterranean economy and Roman Palestine was no exception.97 Agriculture was the engine of this economy. The laws of matanot aniyim as well as matanot kehuna avowed a vital continuity of God’s lordship over the Land of Israel. These agricultural gifts emphasize that the historical devastation has left the “sacred economy” of Israel intact. The Temple was destroyed but the Land remained holy and its produce is still under the entitlement of the Lord. Those remaining in the Land of Israel, therefore, would continue to be bound by the ancient system of obligations, which their ancestors accepted in covenant with God. This reciprocity between Israel and God, the close parity between two partners in the charge of restitution, is what Mishnah seeks to convey to its rabbinic followers particularly in the Order of Seeds. Thus, these agricultural gifts to the poor are not charity (in the traditional sense). The produce received by the destitute was not from the farmer. There is no agency on his part; rather it is the harvester’s responsibility to  See Peck, The Priestly Gift, 3.  Neusner, The Law of Agriculture, 4. 97  There has been a large body of literature dealing with this topic. For a summary and bibliography, see Gardner, Organized Charity, 43–44. 95 96

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refrain from interfering with God’s allocations to the needy. In other words, God is the benefactor of matanot aniyim, not the human. The message of Tosefta is not the same as Mishnah, and still requires analysis.98 What is clear is that concerning the topic of the poor, Tosefta focuses upon organized charity thus offering a different emphasis than Mishnah.99 Mishnah’s approach to the poor suggests an additional component. The laws presented in Mishnah, showing empathy toward the destitute and preferable consideration in rulings for the poor, could prevent them from becoming active and becoming dangerous persons in society.100 This, I suggest, is a factor in retaining society’s solidarity. An additional factor in sustaining solidarity is Mishnah’s emphasis upon matanot aniyim, since they are not as Gray101 terms “redemptive almsgiving” where the purpose is the process of giving to the poor102 but rather allocations ordained to the needy by God, which detracts the poor’s sense of inferiority and lack of self-respect. They accordingly see themselves as members of the Jewish collective. Furthermore, as I discussed above, the poor in Mishnah’s world are insiders, members of the group, Jews as other Jews with similar responsibilities but with their own “profession.” This unique status and role is an additional component in retaining the social solidarity of the community. The destitute being part of the rabbinical communal life (in the world of

98  For a discussion on the relationship between Mishnah and Tosefta, see Joshua Kulp, “Organisational Patterns in the Mishnah in Light of their Toseftan Parallels,” Journal of Jewish Studies LVIII, no. 1 (Spring 2007), 52–78, who also examines the views of Abraham Goldberg, “The Tosefta: Companion to the Mishnah,” The Literature of the Sages, Shmuel Safrai, ed., (Philadelphia: Fortress Press, 1987), 283–302; Judith Hauptman, “Mishnah as a Response to Tosefta,” The Synoptic Problem in Rabbinic Literature, Shaye J. D. Cohen, ed. (Providence: Brown Judaic Studies, 2000); Shamma Friedman, “The Primacy of Tosefta to Mishnah in Synoptic Parallels,” Introducing Tosefta: Textual, Intratextual and Intertextual Studies, Harry Fox and Tirzah Meacham, eds. (Hoboken: Ktav Publishing House, 1999), 99–121; and Jacob Neusner’s scattered writing on Tosefta. 99  The text of Tosefta suggests that it is more concerned with third-century halakhic reality than Mishnah. The case of the poor in Tosefta is one example of this argument. Gardner’s research (Organized Charity, 32) substantiates this claim when he writes: “Moreover, charity institutions (especially the kuppah) are shaped by Greco-Roman civic culture, as they stand alongside other institutions in the urban landscape.” I want to thank Professor Jack Lightstone for this insight. 100  Simmel offers this hypothesis (Sociology, 412); also see Hvinden, “Poverty, Exclusion and Agency,” 16. 101  Gray, “Redemptive Almsgiving.” 102  See Simmel, Sociology, 238, for a further discussion on giving to the poor.

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Mishnah) is a sign of communal solidarity. As Simmel writes,103 “Admittedly this group [the poor] is not held together by interaction among its members but by the collective attitude that society as a whole takes toward it.”104 As a final remark, I turn to the words of H. N. Bialek who wrote that when one studies Seder Zeraim (Order of Seeds) he is transferred back to Temple times and is working alongside the farmer in the Land of Israel. Could this have been the intention of Mishnah’s redactors?

 Simmel, Sociology, 440.  Simmel (ibid., 416) adds, “…since the descent of an individual in social standing does harm to the stability of society as a whole, which still seems to outweigh in social importance the material advantage to the individual gain by extortion. Thus the duty to support does not contain a right of the poor to make a claim on their prosperous relatives; it is nothing other than the support duty obliging the state, which it passed on to the relatives and which required no corresponding claim at all on part of the poor.” This might be true for organized charity or almsgiving but not a religious obligation such as matanot aniyim. 103 104

CHAPTER 3

“The Land of Israel Is Holier Than All Lands”: Diaspora in Mishnah’s Cosmos— The Message Simcha Fishbane

Introduction The Bible clearly articulates the boundaries of the Land of Israel as well as the Jewish claim to this Land. In Genesis 15:18 God promises Abraham, “To your descendants I give this land, from the river of Egypt to the great river, the river Euphrates.” In Numbers 34:1–10 the Lord presents Moses with a larger and detailed map to this inheritance—the Land of Israel. Later, in Joshua 13–19 and Ezekiel 47:13–20, additional borders are put forward. In reality, the Israelites, beginning with Joshua, did not settle all these areas during the period of the conquest of the land. Later, during the Second Commonwealth era, when the Jews resettled the land, even fewer parts were reoccupied.1 The Bible does not refer to the Land of Israel as 1  For a detailed discussion of the borders of the Land of Israel, see H. Bar-Daroma, Wezeh Gevul Haaretz. (Jerusalem: B.E.R. Publishing, 1958) [Hebrew].

S. Fishbane (*) Graduate School of Jewish Studies, Touro College & University System, New York, NY, USA e-mail: [email protected] © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_3

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sacred or holy. Holiness, as Schweid2 argues, “is no more than the symbolic significance that man attaches to them by his behavior,” for the Land of Israel and its sanctity were established by the Jewish people when they settled this territory. This concept was later introduced as a result of the Israelites’ actions. Schweid continues to clarify, “The Land of Israel was sanctified by the Jewish people when it settled there. That is to say, it is the relationship bound up with national possession of the land based on the Torah that sanctified it to the people of Israel and none other.” This sanctification is permanent and cannot be lost or disposed of, although there are different levels of holiness to the land, especially for the redactors of Mishnah.

Mishnah Mishnah, redacted in the Land of Israel at approximately at the end of the third century CE, is the rabbis’ concept of an ideal Jerusalem Temple society,3 a cosmos that could offer hope and purpose to the rabbinic Jew.4 Other rabbinic texts of the period (Tannaitic) presuppose the existence of Mishnah.5 Mishnah was redacted as a highly organized and structured document. It is the most systematic and coherent document in the early rabbinic corpus and thus most amenable to a systematic search for the redactors’ message.6 Therefore in this essay I will focus only on Mishnah and its redactors’ (implicit) message, relating to the role of the diaspora as presented in its text. 2  Eliezer Schweid, The Land of Israel: National Home or Land of Destiny (New York: Herzl Press, 1985), 63. 3  See Nissan Rubin, Time and Life Cycle in Talmud and Midrash: Socio-Anthropological Perspectives (Boston: Academic Studies Press, 2008), 12, who discusses the sociological approach to the relationship between an ideal society and social-historical reality. Also see Naftali Cohn, The Memory of the Temple and the Making of the Rabbis (Philadelphia: University of Pennsylvania Press, 2013), for a discussion of the Jerusalem Temple society as seen by the Mishnah rabbis. 4  I will discuss this later. 5  See Richard S. Sarason, “The Significance of the Land of Israel in Mishnah,” in The Land of Israel: Jewish Perspectives, Lawrence A. Hoffman, ed., 109–36 (Notre Dame: University of Notre Dame Press, 1986), 110, for a discussion of the place of Mishnah in the rabbinic texts of late antiquity. Also, see Simcha Fishbane, “Mipnei Darkei Shalom: The Promotion of Harmonious Relationships in the Mishnah’s Social Order,” in Studies in Judaism, Humanities, and the Social Sciences, Vol. 1.1, Fall 2017, 73–84, for my discussion of Mishnah. 6  Sarason, ibid.

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In an analysis of a Temple-focused document, one can identify topics that were probably part of the Tannaitic Weltanschauung in late antiquity. Sarason7 elucidates: “On internal literary evidence alone, it is manifest that the document was formulated solely by and for the rabbis in the Land of Israel at the turn of the third century C.E. and speaks in its present form, only for them.” Sarason continues to clarify, “It is not the actual culture of other Jews in the Land of Israel at the time of the Mishnah or earlier, although realia from the culture are certainly utilized and alluded to.” The themes concerning the Land of Israel in Mishnah will overlap subjects related to the Temple era and the Tannaitic period. Mishnah came into being during a period in Jewish history when the Jerusalem Temple, the visible symbol of His presence, was destroyed, a time in which the priesthood itself had lost its cultic function and religious authority over the people of Israel. Furthermore, for the immediate future, the Jewish hope for God’s triumph over Israel’s adversaries was not anticipated; moreover, the messianic attempt to regain sovereignty through military might did not succeed. Even in this time of crisis, God still owned the Land of Israel and through it took special care of the Jewish nation. It was through the observance of the agricultural laws in the Land in Israel (mitzvot hateluyot ba’aretz) that this relationship was solidified. Mishnaic treatment of the agricultural law acknowledges that in working the land Israelites come into contact with and control holiness. Here their powers and responsibilities parallel those of the priests who once ministered at the altar of the Jerusalem Temple. This was taking place during a period when agriculture was the foundation of the ancient Mediterranean economy, and Roman Palestine was no exception.8 Agriculture was the engine of this economy. The laws of matanot aniyim as well as matanot kehuna9 avowed the vital continuity of God’s lordship over the Land of Israel. These agricultural gifts emphasize that despite the historical devastation, they had left the “sacred economy” of Israel intact. The Temple was destroyed, its holiness characterizing various elements of the Temple, but the Land remained holy and delineated of its produce is still under the entitlement of the Lord. Those remaining in the Land of Israel, therefore, would  Ibid., 111.  There has been a large body of literature dealing with this topic. For a summary and bibliography, see Gregg E. Gardner, The Origins of Organized Charity in Rabbinic Judaism (New York: Cambridge University Press, 2015), 43–44. 9  Presents to the poor and gifts to the priest, respectively. 7 8

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continue to be bound by the ancient system of obligations which their ancestors had accepted in the covenant with God. This reciprocity between Israel and God, the close parity between two partners in charge of restitution, is what Mishnah seeks to convey to its rabbinic followers, particularly, but not exclusively, in Mishnah’s Seder Zeraim (Division of Seeds or Agriculture). If the Land of Israel and the Jews abiding in it represented the holy or sacred, then what and who and for what purpose do the redactors of Mishnah understand as the function of the diaspora?

The Sociology of Space The nineteenth-century sociologist Georg Simmel10 explains space as a “form that in itself lacks effect, for it is not space that creates particular social phenomenon; rather, human division and gathering have social meaning.” In other words, space is created by human action. Simmel continues,11 “Spatiality only emerges in that people generate it in their perception…Outside of human sensation, space has no reality; however, this does not mean that it is only subjective or unreal, since human sensations form the world.” Simmel argued that space is real when people apply it to the world of objects. Martina Low, at the beginning of her book,12 views space as having various sections. These components that form social space are characterized by both symbolism and material space; material space and social space cannot be separated. Marc Augé13 takes a different approach. He writes, “it has become clear that it is the spatial arrangements that express the group’s identity, and that the group has to defend against external and internal threats to ensure that the language of identity retains a meaning.”14 Augé15 then introduces the concept of non-space: “If a place can be defined as relational, historical and concerned with identity, then a space 10  Georg Simmel, “Spatial and Urban Culture,” in Simmel on Culture, David Frisby and Mike Featherstone, eds. 137–85 (London, Thousand Oaks, New Delhi: Sage Publications, 1997), 137–185, and Martina Low, The Sociology of Space: Materiality Social Structures and Action (New York: Palgrave Macmillan, 2016), 44. 11  Simmel, “Spatial and Urban Culture,” 45. 12  Low, Sociology of Space, 6. 13  Marc Augé, Non-Places (London, New York: Verso, 2008). 14  Ibid., 36. 15  Ibid., 63.

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which cannot be defined as relational, historical and concerned with identity will be a non-space.” Whatever the approach, all the above theories of space are directly related to the impact of a social variable. According to most scholarship, the concept of sacred space is also based on the social factor. Durkheim,16 in discussing the difference between sacred and profane, explains that the world is divided “into two domains, one containing all that is sacred and the other all that is profane.” He continues, “the notion of the sacred is always and everywhere separate from the notion of the profane in man’s mind, and because we imagine a kind of logical void between them… The sacred thing is, par excellence, that which the profane must not and cannot touch with impurity.”17 Durkheim continues to argue that the profane may lose some of its traits and encompass sacred elements. The sacred is protected by rites and rules, while prohibitions are attributed to the profane and must be distanced from the sacred. Numerous scholars18 have written on the topic of sacred place. I turn to Mircea Eliade, who was influenced by Durkheim. In his classic study The Sacred and the Profane (1959), Eliade discusses how sacred space is constituted and why it becomes qualitatively different from the profane space by which it is surrounded. Sacred space suggests a hierophany, an irruption of the sacred that results in separating a territory from the surrounding cosmic milieu and making it qualitatively separate.19 The religious man searches for his place at the “center of the world.” The revealing of a center is equivalent to the center of the world and sacred space. It is as a sacred pillar in that the entire habitable world extends around it. In contrast to sacred space there is profane space, but even in this space it can “to some extent recall the non-homogeneity peculiar to the religious 16  Emile Durkheim, The Elementary Forms of Religious Life (New York: The Free Press, 1995), 35. 17  Ibid., 37–38. 18  For example, Jonathan Smith, To Take Place: Toward Theory in Ritual (Chicago: University of Chicago Press, 1992) and Map Is Not Territory (Chicago: University of Chicago Press, 1993), a student of Eliade who not only discusses his work at length but also challenges Eliade and offers his own opinions. Also, Ronald L. Grimes, Rite Out of Place (New York: Oxford University Press, 2006), a scholar of ritual behavior who challenges Smith’s understanding of sacred space. 19  Mircea Eliade, The Sacred and the Profane: The Nature of Religion (San Diego: Harcourt Brace Jovanovich Publishers, 1959), 26.

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experience of space.”20 Eliade continues21 to explain that through the sacred enclosure, communications with the gods is possible; there is a door to the world above. He clarifies that “One of the outstanding characteristics of traditional societies is the opposition that they assume between their inhabited territory and the unknown and indeterminate space that surrounds it. The former is the world, the cosmos; everything outside it is no longer a cosmos but a sort of ‘other world.”22 The sacred space is consecrated through the permanent settling in its terrain thus requiring it to go through the process of sanctification. In his discussion of temples Eliade23 points out that by virtue of the Temple and the Holy of Holies, the world is resanctified in every part. However impure the place may be, it is continually purified by the sanctity of the holy center. Eliade summarizes his views, But the irruption of the sacred does not only project a fixed point into the formless fluidity of profane space, a center into chaos; it also effects a break in plane, that is, it opens communication between the cosmic planes and makes possible ontological passage from one mode being to another…the world becomes apprehensible as world, as cosmos, in which it reveals itself as a sacred world…In short, this religious nostalgia expresses the desire to live in a pure and holy cosmos, as it was in the beginning, when it came fresh from the Creator’s hands.24

For the rabbis of the Mishnah who crafted a Temple-based ideal cosmos, the space called the Land of Israel and its Temple with its sacred center, the Holy of Holies were the conduits to the heavens.

The Land of Israel in Mishnah The focus of this essay, as understood by Mishnah’s redactors, is the “diaspora,” the profane land or space designated as the countries outside of Israel. In order to recognize what and where profane space is, we first

 Ibid., 24.  Ibid., 26. 22  Ibid., 29. 23  Ibid., 59. 24  Ibid., 63–65. 20 21

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must turn to the central focal point, the sacred that the profane serves, the Land of Israel.25 Mishnah in M. Kelim 1:6–926 emphasizes this point. 1:6 There are ten [degrees of] holiness(es); (1) The land of Israel is holier than all lands. And what is holiness? For they bring from it the omer, and the first fruits, and the Two Loaves, which they do not bring (thus) from all lands.27 1:7 (2) The cities surrounded by a wall are more holy than it [the land]. For they send from them the lepers, and they carry around in their midst a corpse so long as they like, [But once] it has gone forth, they do not bring it back. 1:8 (3) Within the wall [of Jerusalem] is more holy than they, for they eat there lesser sanctities and second tithe. (4) The Temple Mount is more holy than that. For Zavim, and Zavot, menstruating women, and those that have given birth do not enter there. (5) The rampart is more holy than it. For gentiles and he who is made unclean by a corpse do not enter there.

25  Charles Primus, “The Borders of Judaism,” in The Land of Israel: Jewish Perspectives, Lawrence A. Hoffman, ed. 97–108 (Notre Dame: University of Notre Dame Press, 1986), 99, describes the Mishnah rabbis’ inclusion of the country of Israel as a means to “manipulate for their own purposes Judaic images which have become ‘traditional’ long before the second century c.e. These literary images include Zion, Jerusalem and the Land.” I believe that the use of such language is manipulative, that suggesting negative connotations is too harsh. The redactors of Mishnah most probably had an agenda to protect (see Catherine Hazser, “The Graeco-Roman Context of Jewish Daily Life in Roman Palestine,” in The Oxford Handbook of Jewish Daily Life in Roman Palestine, 1–14 (Oxford: Oxford University Press, 2010), 14) and offer hope to their community. Collective memory is helpful for this purpose, but that does not imply manipulation. 26  English translations of Mishnah are adapted from Jacob Neusner, ed. The Mishnah: A New Translation (New Haven: Yale University Press, 1988). This Mishnah text offers an overall gateway to the understanding of sacred according to Mishnah’s redactors; therefore, I have decided to cite in it full. 27  To answer the question why the rabbis chose these agricultural examples to differentiate between the Land of Israel and other lands, one needs only look at Mishnah’s literary style. All the examples under “ten degrees of holiness” are directly related to the Temple and its era. This includes purity laws as well as Temple rituals. The three examples—omer, the first fruits, and the Two Loaves—are gifts brought to the Jerusalem Temple.

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(6) The court of women is more holy than it. For a tevul-yom does not enter there, but they are not liable on its account for a sin offering. (7) The court of Israel is holier than it. For one who [yet] lacks atonement [offerings made in the completion of his purification rite] does not enter there, and they are liable on its account for a sin offering. (8) The court of the priests is more holy than it. For Israelite(s) do not enter there except in the time of their [cultic] requirements: for laying on of hands, for slaughtering, and for waving. 1:9 (9) [The area] between the porch and the altar is more holy than it. For those [priests] who are blemished or whose hair is unloosed do not enter there. (10) The sanctuary is more holy than it. For [a priest] whose hands and feet are not washed does not enter there. (11) The Holy of Holies is more holy than they. For only the high priest on the Day of Atonement at the time of the service enters there. Sarason28 explains this Mishnah as having four primary themes: cultic purity, agricultural offerings that are connected to the Land of Israel, boundaries created between Jews and gentiles, and spatial differentiation which is represented by boundaries of the Land of Israel versus the land of the gentiles or outside the Land. If we take a step backward we can see that Mishnah redactors are introducing a terminology (in reference to the Land of Israel) not found in Torah—“holy” (or sacred). As discussed above, when the Bible speaks of the Land of Israel or Canaan, it is referring to the place promised to the Israelites,29 a place that must be conquered and settled. In Genesis 12:1–4 the Lord promises Abraham that his offspring will inherit the Land. In Genesis 26:2–4 and again in Genesis 32:10 this contract was renewed to Isaac, the son of Abraham. Genesis 35:9–15 reaffirms this agreement with Isaac’s son, Jacob. Moses at the burning bush (Exodus 3:8) refers to  Sarason, “Significance,” 114.  See Harry M.  Orlinsky, “The Biblical Concept of the Land of Israel: Cornerstone between God and Israel,” in The Land of Israel: Jewish Perspectives, Lawrence A. Hoffman, ed. 27–64 (Notre Dame: University of Notre Dame Press, 1986), 31–37, which argues that language used in the Torah when the Land was promised was contractual. 28 29

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rescuing the Israelites from Egypt and bringing them to a land flowing with milk and honey. Again, the promises are reaffirmed in Exodus 6:2–8. Throughout the journey to the Land of Canaan, the Promised Land, many of the rituals, laws, and structures such as the Tabernacle were all related to the Land and to when the Israelites will arrive, conquer, and settle there.30 Once in the Promised Land, the Bible informs the Israelites of the consequence of their behavior—keep the rules of the Lord and all will succeed. Transgress these laws and you will be exiled, for the Land cannot tolerate your actions.31 These concepts and approaches to the Promised Land are ongoing throughout the Pentateuch, but nowhere in Torah does it refer to the Land of Israel as holy (or sacred). Only in such sources as Isaiah 52:1 and Zechariah 2:16 is the term “holy” used. In Zechariah, it refers to admat kodesh (sacred earth) and in Isaiah in reference to Jerusalem, the holy city. As cited earlier in Tractate Kelim, Mishnah introduces the terminology, “The Land of Israel is holy.” The sacred cosmos begins with the Land of Israel and evolves until reaches its maximum, the Holy of Holies, the center that is the conduit to the heavens and disperses the holiness (or gods) throughout the Land of Israel until it reaches the lowest and most general level of the sacred cosmos, the land, and its produce. For the redactors of Mishnah this presented a dichotomy. If Mishnah is the ideal Temple cult (including its priesthood), the above scenario can be understood: from the Holy of Holies emanates God’s sacredness to all, coupled with the Land of Israel, both functionally and intrinsically. However, the rabbis lived in a post-Temple era where there was no Holy of Holies and no special center to radiate God’s sacredness, a reality that prompted the redactors of Mishnah, implicitly (if not explicitly) to send their message. Thus, as I discussed above, the new central point was designated; namely, the Land of Israel and its physical land. This is represented in the two Hebrew terms both meaning land, Eretz Yisrael and Aretz. Eretz in Mishnah32 is the theoretical or spiritual boundaries of Israel, borders that are flexible and are decided by the rabbis. Eretz Israel is the country of the Jerusalem Temple, the priests, their gifts, and the

 For a detailed discussion on this issue, see Orlinsky, ibid., 38–40.  See, for example, Deuteronomy 7:6–13. 32  Grammatically it is an issue of smikhut. The Torah uses the term eretz and aretz interchangeably. In Mishnah, there seems to be a different concept manifested in each term. 30 31

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purity laws.33 Aretz is holy land, the center of sacredness that replaced the Jerusalem Temple and its priests.34 The Mishnah in Kelim represents eretz, the Land of Israel during the period of the Temple. It discusses priestly gifts, purity laws, sacrifices, the Temple’s architecture, and the Holy of Holies. The Mishnah in Kiddushin 1:9 represents the rabbis’ post-Temple understanding of aretz.35 The Mishnah in Kiddushin states: Every commandment which is dependent upon the Land applies only in the Land, and which does not depend upon the Land applies both in the Land and outside the Land. (hutz la’aretz), except for orlah and mixed seeds [Lev. 19:23, 19:19]. Rabbi Eliezer says, Also: Except for [the prohibition against eating] new [produce before the omer is waved on the sixteenth of Nisan] [Lev. 23:14].36

Before discussing the focus of this essay, “diaspora,” an additional dynamic should be considered. For the rabbis of Mishnah, the possession of the Land is de-emphasized; what is important is performance and adherence to God’s commandments that are articulated in the Torah and as presented by the rabbis.37 As we will discuss later the performance these mitzvot are often tied directly to the Land in Israel (aretz).

Diaspora38 Mishnah offers different terminologies to identify the lands or countries outside the sacred space of Israel. In addition to recognizing these countries by their names such as Bavel (Babylonia) and Mitzraim (Egypt) the  There are exceptions to this rule that require separate attention.  Aharon Lichtenstein, Kedushut Aviv: Studies in the Sanctity of Time and Space (Jerusalem: Koren, 2017), 261–348 [Hebrew], differentiates by using the terminology Shem Eretz Yisrael (the Name of the Land of Israel) in contrast to Eretz Yisrael, and Jonathan Klawans, “Notions of Gentile Impurity in Ancient Judaism,” AJS Review, Volume 20, No. 21995, 285–312, uses ritual and moral impurities. 35  I will discuss this Mishnah later. 36  Approximately one-third of Mishnah is concerned with the Land of Israel. While there have been numerous scholarly studies on specific topics concerning the land of Israel in Mishnah, a comprehensive study still is required. 37  See Primus, “Borders of Judaism,” 103–105. 38  There are various dictionary definitions to the term diaspora. I chose “any group that has been dispersed outside its traditional homeland, especially involuntarily, as Africans during the trans-Atlantic slave trade.” And “any religious group living as a minority among people of the prevailing religion.” 33 34

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Mishnah uses three primary terminologies, eretz ha’amim (lands of the nations), hutz la’aretz (outside the land), and medinat hayam (the ocean countries). A. Eretz Ha’amim The term eretz ha’amim appears five times in Mishnah, once in Tractate Nazir, twice in Tractate Ohalot, and twice in Tractate Taharot. Tractate Nazir 7:3. But as to [uncleanness contracted by overshadowing] (1) interlaced foliage, (2) projecting stones, (3) a grave area [bet haperas]39 (4) Lands of the Nations [eretz ha’amim], (5) the sealing stone and (6) the buttressing stone [of a grave] …on account of these, the Nazir does not cut his hair or sprinkle himself on the third and seventh days….

A nazir is an individual who vows not to cut his hair and not come in contact with a dead body as well as other laws stipulated in the Torah (e.g., Numbers 6:2). This Mishnah is a continuation of the preceding Mishnah; after the prior Mishnah listed the corpse-related uncleanliness for which the nazir shaves, Mishnah 7:3 discusses the instances in which occurrences of uncleanliness the nazir is not required to shave. They include a scenario when the nazir, during his period of nezirut, left the Land of Israel to visit a foreign country [eretz ha’amim] and returned. The Mishnah informs us that the nazir who is traveling in the diaspora, who did come directly in contact with impurity, is only required to count seven days and on the seventh day to have sprinkled upon himself the ashes of the red heifer in order to be purified.40 The same law applies to bet haperas in the Land of Israel. In contrast, in the diaspora one becomes tamei by his mere presence, while in the Land of Israel the nazir must come in contact with the remains of the dead. 39  Bet haperas is a field in which a grave has been plowed over. The area around the grave, although it is doubtful if any remnants of the corpse are there, is considered to be able to convey tumah (impurity). 40  Eretz Ha’amim would seem to be paired (analogous) with bet haperas, both suggesting tumah that comes from contact with the dead. Bet haperas is specific to a specific small area in the Land of Israel in contrast to the overall and inclusive impurity of foreign lands which is delineated through the term eretz ha’amim. This coupling of terms is consistent in many other citations using the term eretz ha’amim.

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This concept is further substantiated in Mishnah’s Tractate Nazir 3:6, which presents an interesting case that discusses the law if one vowed to be a nazir outside the land of Israel and then came to Israel. The Mishnah relates a story of Queen Helena who vowed to become a nezirah for seven years. At the conclusion of this period she went up to the Land of Israel41 where she was required to become a nezirah for another seven years. This Mishnah implies that since the land located in a country outside Israel is impure [tamei] one cannot properly remain a nazir in the state of ritual purity.42 Tractate Ohalot 2:3. These contaminate through contact and carrying but do not contaminate in the tent. (1) A bone the size of a barleycorn, and (2) [earth from] eretz ha’amim, and (3) [earth from] a grave area [bet haperas], (4) a limb from the corpse and (5) a limb from a living man which do not have an appropriate amount of flesh, (6) the backbone and (7) the skull which are lacking…

The Mishnah discusses the imparting of ritual impurity from bones that come from a corpse. This law includes the dirt of eretz ha’amim as well as bet haperas. As above, both bet haperas and eretz ha’amim are presented together. Both are rabbinic laws and they are presented in Mishnah before Torah impurities, such as a limb from a corpse, are examined. The emphasis is placed on the earth of the Land of Israel where the body or bones can be found and cause ritual impurity. On the other hand, eretz ha’amim represents a totally encompassing impurity. Tractate Ohalot 18:6. He who walks through a grave area on stones which he cannot move, on a man, or on a strong cow, is clean. [He who walks, through a grave area] on stones which he can move, on a man, or on a weak cow, is unclean. He who walks in Ertez Ha’amim in the hills or in rocks is unclean. In the sea or along the beach, he is clean.

This Mishnah chooses only to discuss bet haperas and eretz ha’amim. The theme debated is what causes a person to become ritually impure and how to avoid it. The Mishnah understands all eretz ha’amim as radiating 41  The Mishnah when referring to Israel uses the term Aretz similar to the term used in mitzvot that are dependent upon the Land. I will discuss this below. 42  This Mishnah does not use the term eretz ha’amim.

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tumah, and therefore it is almost impossible to avoid its impurity. The rabbis feared that in contrast to the Land in Israel where the Jews are more careful with their dead, in the diaspora bodies, skeletons and body parts can be scattered everywhere and anywhere. The Mishnah suggests that the “air” in the foreign lands is impure except in non-habitable spaces. These inhabitable places are sections where one cannot bury the dead and as a result, remain ritually pure. Thus, Mishnah redactors are suggesting43 that the land in eretz ha’amim which conveys impurity is habitable space, and this land is intrinsically profane.44 Tractate Taharot 4:5. On account of six matters of doubt do they burn heave offering [terumah]: 1. Concerning a doubt in regard to a bet haperas. 2. And concerning a doubt in regard to dirt from eretz ha’amim…

When terumah is undoubtedly ritually impure, burning is required. When its impurity is dubious, it cannot be eaten or burnt since on the one hand it may be pure and destruction is forbidden, but on the other hand there may still be the possibility of impurity. The Mishnah offers six cases of uncertainty of impurities that require terumah to be burnt. Included in the six are earth from bet haperas and earth brought to the Land of Israel from eretz ha’amim. Both these laws related to bet haperas and eretz ha’amim represent the Mishnah’s emphasis on ritual cleanness in the Land of Israel (in contrast to eretz ha’amim) and the importance of their adherence to these laws in its Temple-focused society. Tractate Taharot 5:1. The creeping thing and the frog in public domain- and so; an olive’s bulk of corpse matter and an olive’s bulk of carrion, and a bone from a corpse, and a bone from a carrion, and a clod from clean [tehora] land and a clod from bet haperas, a clod from a clean [tehora] land and from eretz ha’amim.

This Mishnah commences a chapter dealing with ritual purities and impurities in the public and private domains. Our “coupling” of bet  This would be in agreement with the sociological theories discussed above.  This is in contrast to BT Shabbat 15a and BY Shabbat 1:4 that writes in the name of taanaim that all the air of eretz ha’amim is tame. This concept while it cannot be applied to eretz ha’amim needs to be explored with other diaspora terminologies. 43 44

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haperas and eretz ha’amim is presented in this Mishnah as one of the cases discussed. They are both preceded by the words “a clod [of earth] from pure land [eretz tehora].” The clean land is the Land in Israel which is used as a contrast to the overall tumah in foreign lands and the impurities of bet haperas.

Summary Sacred land that spreads its holiness from a central point (in the case of the Land of Israel) stems from the Holy of Holies, but reduces its level of sacredness as it furthers itself from the center until society or its leadership decides where the borders are located and when the land converts to profane. The Land in Israel may have small pockets of impurity but the land in foreign lands almost in its entirety is ritually impure.45 The Mishnah uses the term eretz ha’amim as a synonym for foreign countries, but only when it concerns ritual impurities. The rabbis argued that in the diaspora, where people are careless with their dead, parts of a dead body could be scattered almost anywhere, thus encompassing and making the entire eretz ha’amim impure. This could not happen on the sacred Land in Israel, and thus only bet haperas, a small plot of land, can be designated as impure. The term eretz ha’amim, the land of the nations or Gentiles, is used to contrast Eretz Yisrael, the holy Land of the Israelites or the Jews. The redactors of Mishnah are concerned with both the fulfillment of the ritual purity laws and the sacredness of the land in Israel. It is these rites and rules (in the words of Durkheim46) that protect the sacred. B. Hutz La’aretz The Mishnah in Tractate Kiddushin 1:9 cited earlier sets the stage for the use of the term aretz and its converse hutz la’aretz. “Every commandment which is dependent upon the Land applies only in the Land, and which does not depend upon the Land applies both in the Land and outside the Land.” In other words, the term would suggest produce or activities related to agronomy. This distinctive status is a consequence of “the Land of Israel, unlike all other countries, as being enchanted, for it enjoys 45  Eliade, The Sacred and the Profane, 24–25, in his discussion of profane space explains that in even the profane there can exist pockets of sacred. 46  Durkheim, The Elementary Forms of Religious Life.

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a unique relationship with God and to the people of Israel.”47 Mishnah does present cases not directly related to the farm, its products, and produce, but these require separate exploration. Moreover, the issue differs from eretz ha’amim that focuses on the laws of ritual purity. Aretz is concerned with the farm and farmer in the land of Israel and his obligations to God, Temple, and the Priests. The emphasis is placed on the land (the Land in Israel) and its link to the Temple and the Priests rather than on inherent holiness of the country (the Land of Israel).48 1. Division of Seeds (or Agriculture) Mishnah redactors implicitly present the dilemma between Aretz and Eretz Yisrael in Tractate Hallah 2:1.49 The Mishnah writes, Produce from abroad (hutz la’aretz) which entered the Land [in Israel] is liable for dough-offering. [Concerning produce which] went out from here to there: Rabbi Eliezer declares it liable [for dough-offering], but Rabbi Akiba declares it exempt.

In Numbers 15:17–21, the Torah mandates that when a Jew prepares dough, a gift called “dough offering” (hallah), is given to the priest. The Tanna Kama--- (first rabbi’s opinion) argues that when the dough is made from imported produce (to Israel) one is liable. This, I suggest, would be conceptually in agreement with the view of Rabbi Akiba who states that produce from Israel to the diaspora is exempt from the priestly gift. This view suggests that the sacredness of the Land is not inherent in

47  Louis E. Newman, The Sanctity of the Seventh Year: A Study of Mishnah Tractate Shebiit (Chico, CA: Scholars Press, 1983), 15. 48  The second part of the Mishnah singles out specific laws “except for orlah and mixed seeds [Lev. 19:23, 19:19]. Rabbi Eliezer says, Also: Except for [the prohibition against eating] new [produce before the omer is waved on the sixteenth of Nisan] [Lev. 23:14].” I suggest Mishnah chose these cases because they do not infringe on the connection or economics of the Temple and the Priests. The rabbis attribute other validations for these cases. 49  See Primus, Borders of Judaism, 103–107, and Shmuel Safari and Zev Safrai, eds. Mishnaht Eretz Israel: Tractate Hala (Jerusalem: Lifshitz College, 2016), 50–51 [Hebrew], for a discussion of this Mishnah. See Alan J. Avery-Peck, Mishnah’s Division of Agriculture: A History and Theology of Seder Zeraim (Chico, CA: Scholars Press, 1985), for a discussion of both the historical and purpose of the Division of Seeds (Agriculture).

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the produce. Primus50 explains that it does not have its own life, so to speak. “Instead it functions as one element in a complex system, a grid of holiness, if you will.” It is the country of Israel that creates the holiness, not the physical entity of the land. Only within the borders of Israel does the law of the dough offering apply. As soon as it crosses these sacred borders into the domain of the profane, the produce’s status of holy ceases or departs and thus there is no requirement to offer priestly gifts. Primus continues to clarify, “Holiness functions in the area according to a set of abstract rules, which in turn also regulate human conduct…Sacred space thus is sacred, not because it is infused with a particular quality, but rather because it is the area in which that quality operates.” Thus, the status of the produce is assigned differently in both directions. If imported to the Land of Israel, the sacred status is assigned to it. If exported from the Land of Israel, holiness is detached and lost. Rabbi Eliezer offers a different approach. The Land in Israel is intrinsically sacred. Thus, in an abstract form, it infuses the produce it creates and nourishes with this holiness. This status, once achieved, cannot be voided. Therefore, even when the produce is exported outside the sacred domain of Israel, the element of holiness is retained as is the required dough offering. We are concerned with the Land in Israel (Aretz) and not the Land of Israel (Eretz Yisrael).51 To clarify which of these two views was accepted by the redactors of Mishnah will require an exploration of Mishnah. Of the 38 instances where the term hutz la’aretz appears in Mishnah, we find that 15 times (including Tractate Hallah quoted above), the expression is cited in the Division of Seeds (Agriculture, Seder Zeraim). All these 15 would suggest they follow the view that the Land is sacred and it is infused with a special attribute. I will discuss these Mishnahyot below. Tractate Demai 2:1.52  Primus, Borders of Judaism, 105.  Rabbi Eliezer’s view is also expressed in Tractate Hallah 4:10; after identifying by name location in the diaspora such as Beitar and Alexandria, he writes that if their dough offering was from these locations, it was not accepted by the priesthood. 52  For a historical discussion of this Mishnah, see Shmuel Safrai and Zev Safrai, eds. Mishnaht Eretz Israel: Tractate Demai (Jerusalem: Lifshitz College, 2013), 54–58. Safrai also discusses what is understood to be the agricultural realities during the period of the second Temple and Mishnah. Richard S. Sarason, A History of the Mishnahic Law of Agriculture: A Study of Tractate Demai (Leiden: E.  J. Brill, 1979), offers a study and analysis of Tractate Demai. 50 51

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These items are tithed as demai produce in every place [both in and outside the Land of Israel] – (1) pressed figs and (2) dates and (3) carobs and (4) rice and (5) cumin. Rice which is grown shebehutz la’aretz – all who make use of it are exempt [from tithing].

Uneducated people (amei ha’aretz) were considered to be careless with the observance of the laws of tithing. They separated from their produce and fruits terumah gedolah,53 the priestly gift, since they feared the death penalty (by the hand of God) for eating the produce before offering these gifts, but were lax when it came to tithing, a less stringent obligation. The produce of the am ha’aretz is called demai, produce that is doubtful as to whether the tithes due to the Levite had been separated. Our Mishnah is concerned with issues of export-import of agriculture products. If the product can be identified as “made in Israel” (recognizable and will not be confused with foreign products), the produce is considered demai and one is obligated to tithe both ba’aretz and hutz la’aretz. If the produce is recognizable as grown in the diaspora (in the case of our Mishnah, rice), one is exempt. The obligatory status of produce can only result from its growth on sacred Land even when it is exported to hutz la’aretz. Tractate Sheviit 5:7.54 … And [the potter] may sell [an unlimited number of containers] to a gentile in the Land [in Israel] and to an Israelite outside of the Land [in Israel].

Every seven years the Bible (Lev. 25:1–7) restricts the working of the Land and gathering of its produce in Israel; it is a period of shemitah for the land or what Mishnah terms Sheviit. Shemitah falls under the category of laws observed only in the Land of Israel. One of the shemitah prohibitions introduced by the rabbinical interpretations of scripture is trade in the produce of the Sabbatical year. The previous Mishnah 5:6 informs us that utensils or implements that can be used to transgress the laws of the Sabbatical year may not be sold to a person suspected of violating shemitah. Our Mishnah continues this discussion, but focuses on oil and wine containers that can be used to store forbidden produce. The Mishnah 53  See Lev. 22.4–16, Numbers 18:8–13, 21–32, and Deut. 18:4 where the Torah discusses the laws of Terumot. 54  For a detailed discussion of this Mishnah, see Shmuel Safrai and Zev Safrai, eds. Mishnaht Eretz Israel: Tractate Shevi’it (Jerusalem: Mishnaht Eretz Israel Project, 2008), 170–173 [Hebrew].

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concludes that it is permitted to sell as many as desired to a Jew in the diaspora, since the laws of Sheviit only apply in Israel and the sacredness of the Land is only found there. Tractate Sheviit 6:5–6. They may not export oil [in the status of heave-offering which has become unclean and is fit] for burning, or produce of the Sabbatical year from la’aretz to hutz la’aretz. They may not import produce designated as a heave-offering from hutz la’aretz to the la’aretz. Said Rabbi Simeon “I have heard [it stated] explicitly … but they may not import [it] from hutz la’aretz.”55

Newman56 explains this Mishnah, “the principle underlying the rule is clear. Sanctified food must be used by Israelites living in the Land. People may not treat these edibles like ordinary produce, by exporting them to other countries where they will be used as common food. … Produce of the Sabbatical year likewise is sanctified.” It is the Land that created the sacred status of the food and thus must be treated appropriately. Tractate Terumot 1:5. They do not separate heave offerings from…produce of the Land [in Israel] for the produce from outside the Land [in Israel]. And not from produce from outside the Land [in Israel] for produce of the Land [in Israel].57

There were those who accepted offering priestly gifts in the diaspora, even though there was no obligation to do so. If the produce of the Land in Israel is intrinsically sacred, it is of no consequence where the fruits may be. These priestly gifts cannot be mixed or combined with the profane for any purpose.58 Tractate Terumot 9:4. 55  Shmuel Safrai and Zev Safrai, eds. Mishnaht Eretz Israel: Tractate Shevi’it (Jerusalem: Mishnaht Eretz Israel Project, 2008) [Hebrew], 209–212, offers additional reasons for why the produce can or cannot be brought in or out of Israel. 56  Newman, Sanctity of the Seventh Year, 135. 57  Tosefta argues that diaspora in this case refers to Syria. See Shmuel Safrai and Zev Safrai, eds. Mishnaht Eretz Israel: Tractate Trumot (Jerusalem: Lifshitz College, 2012) [Hebrew]. I believe Tosefta to have a different and separate agenda and message than Mishnah; therefore, if our Mishnah speaks of inside and out of the Land of Israel, this is its intention. 58  Tractate Terumot 7:3 discusses the issue of terumah in hutz la’aretz. This discussion is outside the query of this essay.

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That which grows from [seed in the status of] heave offering has the status of heave offering. And what grows from [the seed of produce] that grew from [seed in the status of] heave offering is unconsecrated. But [as regards] (1) produce which is liable to tithes, (2) first tithe, (3) aftergrowths of the Seventh Year [of the Sabbatical cycle], (4) heave offering [separated from produce grown] outside of the Land of Israel, (5) mixtures of heave offerings and unconsecrated produce and (6) first fruits- that which grows from them is common food [does not have the same status as the seed from which it grew].

Terumah grown outside the Land in Israel does not encompass sacredness. Its status is an outcome of stringencies sought after by diaspora Jews and not because it encompasses any level of holiness. Therefore, in our Mishnah what grows from the seed of hutz la’aretz cannot have any holiness within it, it does not have the status of true heave offering and for that reason does not produce a sanctified crop.59 Tractate Ma’aserot 3:10. … [A tree] standing in the Land [in Israel] with [its bough] [or one standing] outside the Land [in Israel] with [its bough] extending into the Land [in Israel]- [the status of] all [fruit on the tree] is governed by [the laws which apply to the place in which] the roots [are located].

Tithing is given from one’s produce to the Levite.60 It is no different than other products that fall under the category of mitzvot hateluyot ba’aretz, and must only be performed in the Land of Israel. The Mishnah is emphasizing that the fruit of the tree shares the character of the soil from which it draws its nourishment.61 If the soil or land is sacred, then the produce become holy, for if the soil is profane as in hutz la’aretz the fruit can never reach the status of holy.62 Tractate Orlah 3:9. 59  See Alan J.  Avery-Peck, The Priestly Gift in Mishnah: A Study of Tractate Terumot (Chico, CA: Scholars Press, 1981), 257, for a discussion and analysis of this Mishnah. See also Shmuel Safrai and Zev Safrai, eds. Mishnaht Eretz Israel: Tractates Ma’asrot and Ma’aser Sheni (Jerusalem: Lifshitz College, 2013). 60  See, for example, Numbers 18:21–22 and Deut. 12:5–6, 14:22–29, 26:12–15 where Scripture presents the laws of tithing. 61  See Martin S. Jaffee, Mishnah’s Theology of Tithing: A Study of Tractate Maaserot (Chico, CA: Scholars Press, 1981), 117, and footnote 46. 62  Tosefta 2:22 presents a similar understanding.

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[Fruit about which there is] a doubt [whether or not it is in the status] of orlah  – [if it is] in the Land of Israel [the fruit in question] is forbidden [deemed here to be orlah]. But in Syria [the fruit] is permitted [not in the status of orlah]. And behutz la’aretz, one may go down [to the orchard] and purchase [such fruit], provided that he does not see him [the seller] pick [the fruit]. [As to] a vineyard which was planted with vegetables [which are of diverse kinds], and outside of [this vineyard] vegetables [of like kinds] are sold- [if it is] in the Land of Israel [the produce] is forbidden [under the law of diverse kinds]. But in Syria [it is permitted]. And behutz la’aretz, one may go down and purchase [this produce], provided that he [the Israelite] does not pick [it] with his hand. Hadash is forbidden by Torah law everywhere, orlah is by halakhah and kilayim is by rabbinic law.

Scripture (Lev. 19:23) writes that in the first three years all fruits of a tree are forbidden as food. These fruits are called Orlah. Mishnah in tractate Kiddushin 1:9 (quoted earlier) required this law to be observed even in the diaspora. In hutz la’aretz, in the case of doubtful orlah,63 our Mishnah suggests leniencies. The redactors of Mishnah separated out these three products from receiving the sacred status of those that fall under the category of mitvot hateluyot ba’aretz and thus made their laws obligatory even behutz la’aretz. If they remained grouped with the other mitvot hateluyot ba’aretz, its laws would not apply in the diaspora. 2. Additional Mishnahic Divisions (Sedarim) Concerned with the Term Aretz or Hutz la’aretz Before we begin to examine the Mishnahyot found in these Divisions, I will clarify various literary and conceptual patterns used by Mishnah’s redactors. (a) If a terminology associated with mitzvot hateluyot ba’aretz is used, such as “tithe” of animals, Mishnah editors would apply the designation aretz or hutz la’aretz. (b) The editors of Mishnah use a formulary structure throughout Mishnah. Lightstone64 calls this formulary pattern homophonic-­  Tosefta 1:8 argues that this is the orchard of a gentile.  Jack N. Lightstone, Mishnah and the Social Formation of the Early Rabbinic Guild: A Socio-Rhetorical Approach (Waterloo: Wilfrid Laurier University Press, 2002), 33. For a complete discussion of this literary structure, see 33–78. 63 64

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homosemantic markers. In his discussion of the rhetoric of Mishnah,65 he suggests that to a great extent a large measure of comprehensiveness and wholeness is derived from its rhetoric. He then breaks this rhetoric into three categories:

1. Morphological repetition which itself provides a kind of alliteration and assonance 2. The repetition of similar or identical words or phrases, or paired opposites… 3. The linking of items with the above-mentioned qualities by means of several, repeated, stock, conjunctive formulae…



To explain how this is relevant to our Mishnahyot, it is a “fill in the blank” system. Mishnah writes: A, B, C, D, then blank. It also could be formulated as: blank, A, B, C, D.  The redactors will choose one topic that will set the stage for the later texts. Then they will write A, B, C, and D. This will become clear in our discussion of Tractates Bekhorot and Hullin. (c) From a sociological perspective the redactors of Mishnah included animals within the agricultural category that is identified by aretz and hutz la’aretz. As Safrai66 points out, in late antiquity all properties of agriculturalists included animals especially for working the fields as well as other farm needs. Animals were an integral part of the household such as the societal picture construed by Mishnah. (d) In instances when they lacked a better term, Mishnah redactors will use hutz la’aretz as a generic form to describe diaspora. Almost all citations of hutz la’aretz outside of Seder Zeraim appear in the Divisions of Holy Things (Kodshin) and Purities (Taharot). I will first explore these citations concerned with the laws related to agricultural products. 3. Laws of Agricultural Products Tractate Menahot 8:1. All [meal] offerings of the community and of the individual derived (1) from [wheat grown] in the Land [in Israel] and from [wheat grown] abroad…  Ibid., 63.  Zev Safrai, The Economy of Roman Palestine (London: Routledge, 1994), 93–94.

65 66

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except for the omer [Lev. 23:10] and two loaves of bread [Lev. 23:16–17]. Which derive only from new [wheat, grown in the present year] and from [wheat grown in the] Land…67

The Mishnah redactors are differentiating between produce associated with the mitzvot hateluyot ba’aretz and those used for Temple sacrifices from wheat. In order for the omer and the two loaves of bread (according to Scriptural guidelines) to become effective one must use produce from the Land in Israel. Our Mishnah emphasizes the importance of the Land in Israel in conjunction with agricultural products. This quote from our Mishnah is repeated in Tractate Parah 2:1. Tractate Ohalot 17:5. … Dirt of a grave area and dirt from abroad which came in vegetables “join together to reach the measure of the seal of packing bags,” the words of Rabbi Eliezer. And the sages say, [It is not joined together but conveys uncleanness] only if in one place is sufficient to serve as a seal of packing bags. …

Our Mishnah is primarily concerned with impurity and purity issues. Items brought to Israel from the diaspora are routinely impure.68 Since vegetation is referred to in the Mishnah, the redactors used the terminology for discussing agriculture: hutz la’aretz. Tractate Yadayim 4:3. This Mishnah offers a lengthy discussion on the status of three diaspora countries—Egypt, Ammon, and Moab69—during the Sabbatical year. We are taught that in the diaspora it is not required to uphold the Shemitah except for the second tithe and the tithe for the poor70 that even in the seventh year must be separated. 67  For a discussion of this Mishnah, see Jacob Neusner, A History of Mishnahic Law of Holy Things: Menahot (Leiden: Brill, 1978), 112–114. 68  This topic of impurity in the diaspora was discussed earlier. 69  This does not refer to the lands that were conquered by Sihon and subsequently by Israel, since this territory is part of the Land of Israel, but rather to the rest of their land which was never conquered. See the Kehati commentary to this Mishnah (Pinchas Kehati, The Mishnah [Jerusalem: Department for Torah Education and Culture in the Diaspora, 1994]). 70  ma’aser sheni or the Second Tithe is during the first, second fourth and fifth years of the shemitah cycle. It should be brought to Jerusalem and eaten in purity. ma’aser ani or the poor man’s tithe is separated during the third and sixth years of the shemitah cycle. It is distributed to the poor.

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…Egypt is outside the Land (hutza la’aretz) and Ammnon and Moab are outside the Land. Therefore [just as in] Egypt a poor man’s tithe [must be given] in the seventh year, so [in] Ammon and Moab, poor man’s [must be given in the Sabbatical year]. Rabbi Eleazar ben Azariah answered, “Babylonia is outside the Land, and Ammon and Moab are outside the Land. Therefore [just as in] Babylonia, second tithe [must be given] in the Sabbatical year, so [in] Ammon and Moab second tithe [must be given] in the Sabbatical year.” Said R. Tarfon, “Egypt, which is near [the Land], have they made liable for poor man’s tithe, so that the poor of Israel may depend upon it in the Sabbatical year. So too Ammon and Moab which are near [the Land] have they made liable for poor man’s tithe, so that the poor of Israel may depend upon them in the Sabbatical year.”

There are two concerns for us to consider in this Mishnah. The redactors elected to use the terminology aretz and hutz la’aretz. As we have seen above, since the topic is agricultural produce, the products that Scripture would consider mitzvot hateluyot ba’aretz, it would thus entail the use of these terminologies. Beyond the language of Mishnah, the primary concern is the needs of the poor and their support from mitzvot tied to agriculture.71 4. Nonagricultural Produce—The Farm Mishnah redactors chose to widen the terminology aretz and hutz La’aretz into other items found on the farm or in the agriculturalist’s home. This will become evident especially when it entails priestly gifts. Tractate Behorot 9:1. [The law concerning] tithe of cattle applies in the Land (aretz) and outside of the Land (hutz la’aretz) …

A similar law is also found in Tractate Temurah 3:5 (cited below). The same formulary is found in the following pericope in Tractate Hullin 5:1, 6:1, 7:1, 10:1, and 11:1.72 For example,

71  See Fishbane, “Dignity or Debasement: The Destitute in the World of Mishnah” (forthcoming), where I discuss the poor in Mishnah. 72  See Jacob Neusner, A History of Mishnahic Law of Holy Things: Arakhin, Temurah (Leiden, Netherlands: Brill, 1979), 87–89, who discusses this type of rhetoric.

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10.1 [The requirement to give to the priests] the shoulder and the two cheeks, and the maw [Dt.18:3] applies in the Land (aretz) and outside the Land (hutz la’aretz)… 11.1 [The requirement to give to the priests] the first of the fleece (Dt.18:4)] applies in the Land (aretz) and outside the Land (hutz la’aretz) … Tractate Temurah 3:5. The substitute of a firstling or of tithe, their offspring, and the offspring of their offspring, to infinity, lo, they are deemed equivalent to a firstling or to the tithe… and they are brought from abroad except for the firstling and the tithe… Said R. Simeon, “What is the reason? For the firstling and the tithe have a remedy in their original location. But all other Holy Things, even though a blemish affects them, lo, they remain in sanctity.”73

5. Beyond the Farm The following Mishnahyot are cases when Mishnah redactors use hutz la’aretz as a generic term. Tractate Gittin 4:6. He who sells his slaves to a gentile or to someone who lives abroad (hutz la’aretz) he [the slave] has gone forth a free man. … for the good order of the world (tikkun olam).

A slave who is owned by a gentile will lose his option to keep mitzvot.74 As we will see in the Mishnahyot below, when the concern is that commandments cannot be practiced or that one’s Jewishness will be threatened, the generic term of hutz la’aretz is used. Tractate Abodah Zarah 1:8. … They do not rent them [gentiles] houses in the Land of Israel, and it goes without saying, fields… And abroad (hutz la’aretz) the sell them houses and rent them fields.” R. Yose says, “In the Land of Israel they rent them houses but not fields; … and abroad they sell them both the one and the other.

 Ibid., 119–120, discussing this Mishnah.  Gentile slaves, while under the ownership of a Jew, are obligated to keep the same laws as a woman. 73 74

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When the Land in Israel is owned or rented by a gentile, there is no possibility to fulfill mitzvot hateluyot ba’aretz. In addition to causing the Jew to forfeit these mitzvot, the Mishnah redactors are following the overall theme of the tractate, the separation of the gentile from the Jew and creating boundaries between them.75 Mishnah 9 relates this concept when it writes that the fear was the possibility that a gentile may bring into the house an idol, and thus influence the Jew. The focus of the redactors, as found throughout Mishnah, is in the Land of Israel as a whole and not necessarily the land in Israel. Hutz la’aretz is used as a generic term in contrast to the Land in Israel. Tractate Mikvaot 8:1. The Land of Israel is pure, and its immersion pools are clean. The immersion pools of the peoples which are located outside of the Land (hutz la’aretz) are fit for those who have had a seminal issue. … Those which are in the Land of Israel which are outside the town gate are fit even for menstruating women. …

As we discussed above, even within the profane there can exist pockets of sacred.76 Tractate Makkot 1:10. … [Trial before] a Sanhedrin applies both in the Land (aretz) and abroad (hutz la’aretz).

The Mishnah is referring to a court of 23 judges who were ordained in Israel. These judges are permitted to rule in cases of capital punishment, even in the diaspora, as long as the high court of 71 sat and functioned in the Jerusalem Temple.

Summary As discussed, what remained for the rabbinic Jew living in Israel post the destruction of the Jerusalem Temple and the end of the priestly culture as they understood and knew it to be was God’s Land in Israel (aretz) and the mitzvot dependent on this Land. Not having much to grasp upon after 75  See Simcha Fishbane, Deviancy in Early Rabbinic Literature (Leiden-Boston: Brill, 2007), 141–163, where I discuss the gentile in Mishnah. 76  See Eliade, The Sacred and the Profane, 24–25.

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the destruction of the Jerusalem Temple, it was not only Eretz Yisrael as an encompassing whole that could offer the hope and purpose needed and sought by the rabbinic Jew but rather the Land in Israel and the possibility to fulfill God’s commandments that presented a new option and opportunity for purpose.77 Even though the Temple was no longer standing, the Land remained holy and its fruit was still under the claim and lordship of God. Although focusing on the weltenschaung of the Temple, the redactors of Mishnah are implicitly conveying a message concerning the holiness of the Land and its important role for the life of the second-­century rabbinic Jew. To emphasize aretz the redactors designated its opposite as outside the Land (hutz la’aretz.) The land in the center is sacred (Israel) and everywhere else profane and chaotic. The editors of Mishnah were not hesitant to widen the usage of these designations to other areas, such as animals that had an association with agricultural products such as animals. C. Medinat Hayam Pinchas Kehati, in his opening commentary to Mishnah tractate Gittin, presents the traditional rabbinic interpretation of medinat hayam as “a distant land.” According to another interpretation, it is a country beyond the western boundary of Eretz Israel. The Tanna specifies the western (sea) boundary, because there is no habitation close to Israel in that direction. But the law applies equally to lands in other directions which are as distant from Israel as those on the western border. Goodblatt,78 through an examination of Mishnah’s sources, argues that medinat hayam are coastal cities settled by gentiles adjacent to Mishnah’s borders of the Land of Israel. Goodblatt does state explicitly79 that medinat hayam is clearly hutz la’aretz. For the clarity of this essay I prefer to adopt the elucidation of Kehati80 that medinat hayam denotes a distant land or overseas. The term medinat hayam appears in Mishnah 32 times. Twenty-one are found in the Division of Women. The theme of this Division is the safeguarding and preservation of the Jewish family, its linage, and purity. 77  The rabbis offered this implicit message even though little of the land in Israel was actually in Jewish hands. Massive urbanization occurred in the second to the fourth centuries. See Lightstone, Social Formation, 196–197. 78  David Goodblatt, “Medinat Hayam-The Coastal District.” Tarbiz, Tishrei-Kislev, Vol. 64:1 (2004), 13–37 [Hebrew]. 79  Ibid., 14. 80  Kehati, The Mishnah.

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These safety measures are grounded on the halakhot of marriage, divorce and yibum (levirate marriage) or halitzah.81 The term medinat hayam comes to provide a distinction between hutz la’aretz, referring to metzvot hateluyot ba’aretz, and eretz ha’amim that is concerned with ritual purity. In tractate Gittin the term medinat hayam appears as part of the formulary “one who brings a get (divorce writ) from medinat hayam.” This formulary repeats itself throughout tractate Gittin (except for Mishnah 3:3). They are found in tractate Gittin 1:1, 1:3, 2:1, 3:3, and 3:6. The theme related to this formulary appears in cases when a get is brought by two (a required number) witnesses to a spouse in the Land of Israel. The redactors of Mishnah are emphasizing throughout tractate Gittin the centrality of life in the Land of Israel. The concern of Mishnah is only focused on what transpires in Israel; the divorce documents are brought from the diaspora to Israel not the reverse. Furthermore, medinat hayam is portrayed in the negative; the Jews living in these countries are not knowledgeable in the halakhically precise writing of the get. Therefore, in contrast to living in Israel where the rabbis were educated, the Jews in the diaspora who were unschooled in preparing proper divorce documents cannot be trusted and when they deliver the get from medinat hayam to Israel, the witnesses must confirm the signatures by declaring, “In my presence it was written, and in my presence, it was signed.” The Mishnah in tractate Gittin 1:3 communicates the contrasting relationship between life in Israel and medinat hayam. He who delivers a writ of divorce in the Land of Israel does not have to state, “In my presence it was written, and in my presence, it was signed.” … He who delivers a divorce writ from medinat hayam and cannot say, “In my presence it was written, and in my presence, it was signed,” if there are witnesses [inscribed] on it- it is to be confirmed by its signatures. The opposite terminology communicated the implicit message of the centrality and importance of the Land of Israel.

This implicit message is also found in tractate Gittin 3:5–6 that states, He who brings a writ of divorce in the Land of Israel and got space – lo, this one sends it on by means of someone else. …He who brings a writ of divorce from medinat hayam and got sick appoints a court and sends it and says in their presence, “In my presence it was written, and in my presence, it was signed.” 81  This is the ritual which releases the widowed wife from the requirement to marry the dead husband’s brother when no children were born.

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Tractate Gittin 3:3 uses an alternate terminology. An Israelite girl married to a priest and her husband went (v’halakh) l’medinat hayam eats heave offering in the assumption that her [husband] is alive. He who sends (Ha’sholeakh) his sin offering me’medinat hayam they offer it up in the assumption that he is alive.

This Mishnah, even though positioned in tractate Gittin, is not directly concerned with family lineage and purity. Placed in tractate Gittin, the terminology of medinat hayam is used to identify the diaspora as it relates to the stability of the social religious behavior of rabbinic Israel. The topic does not fall under the category of bringing a divorce writ and thus uses alternate language, the words v’halakh (went) and Ha’sholeakh (sent). These terms are more frequently found in other tractates in the Division of Women. Tractate Yevamot’s attention is primarily focused on levirate marriage, but in Mishnah 2:9 the topic of bringing a get from medinat hayam is discussed, therefore, juxtaposing the language from tractate Gittin. The mishnayot in tractate Yevamot: 4:6, 10:1, 10:3–4, 15:8, and 16:1 all use the terminologies to come (bah)or went (halakh) followed by medinat hayam. Just as in tractate Gittin to convey its message the Mishnah’s scenario required the use of the words hamevi (to bring), tractate Yevamot also necessitated halakh and bah. Whatever the picture painted by Mishnah whether it be “to come” or “went,” the central point is always redirected toward the life in the Land of Israel, the foremost concern of Mishnah’s redactors.82 Tractate Ketubot and Kiddushin follow the literary pattern of tractate Yevamot and thus deliver the same message. Preceding the words medinat hayam Mishnah editors write “an individual” who departed (halakh). In tractate Ketubot 9:8 the husband deserted his wife in Israel and departed for medinat hayam and she requests from the court in the Land of Israel, her divorce compensation as stated in the ketubah. Chapter 13 discusses the laws promulgated by two judges whose expertise was gezerot (meaning either decrees or robberies). 13:1 deliberates the case of a man who went (halakh) to medinat hayam and his wife, while remaining in the Land of 82  The Mishnah in tractate Yevamot 15:9–10 describes a situation where “come” or “went” would not be appropriate. As in the other cases in tractate Yevamot, Mishnah is describing an instance where the issue is to be resolved in the Land of Israel, thus recognizing the centrality of Eretz Yisrael.

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Israel, claims maintenance. 13:2 is concerned with the case “If a man went (shehalakh) to medinat hayam and deserted his wife in Israel, but someone else of his own volition rose and supported this woman.” 13:7 repeats the same formulary: “If a man went to medinat hayam.” The issue described in Mishnah 13:7 is an instance when a man resides for a long period of time outside of the Land of Israel and consequently lost access to his field in Israel. In tractate Kiddushin the term medinat hayam appears twice. In 4:10 the picture described is of that “One who went (sheyatzah) with his wife to medinat hayam,” but later returned with his wife and children to Israel. In 4:11 the case is in front of the court in Israel where this man claims he married this woman bemedinat hayam and these are her children. He must offer proof that she is of proper lineage. The centrality of the life in the Land of Israel is emphasized, as in tractates Gittin and Yevamot. This was the rabbis’ concern, the functionality of the rabbinic Jew in their society in the Land of Israel. The scenarios discussed by Mishnah in the diaspora are delineated when they proved to be a threat to the social and legal needs of a proper religious life in the Land of Israel. The additional citations of medinat hayam found in the Divisions of Seeds, Appointed Times, Damages, and Purities all follow the same literary form as used in Yevamot, the words medinat hayam are preceded by halakh or bah. They are found in the following tractates: Kilayim 9:7, Shekalim 7:6, Moed Qatan 3:1, Eduyot 1:12, Horayot 1:2 and Ohalot 7:6.83 The topic of each one of these Mishnahyot relate directly to the topic of the tractate. In tractate Kilayim it is forbidden textile mixtures in clothing, in tractate Shekalim, animals designated for ritual sacrifice brought to the Land of Israel from the diaspora. In tractate Moed Qatan, the theme is shaving on intermediate days of Succoth and Passover. Tractate Eduyot (Testimonies) is primarily lists of testimonies of trustworthy rabbis whose testimony may be relied upon. This Mishnah is concerned with the testimonies of the Houses of Hillel and Shamai. The law discussed is a woman who came (shebaah) from medinat hayam to the Land of Israel.84 In tractate Horayot the theme is errant decisions made by the Jewish court and

 I discussed this Mishnah above.  See Kehati’s introduction to tractate Eduyot in The Mishnah for a discussion on the purpose of the tractate. 83 84

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their effect on the individual. Our Mishnah discusses a person who received a mistaken decision and then departed for medinat hayam.85

Summary What is clear is that the term medinat hayam, just as in the Division of women where its focus and concern is what transpired in the Land of Israel, the same theme continues to carry this message throughout the rest of Mishnah. Whether to or from the epicenter, the concern of Mishnah redactors is the rabbis’ social structure and life in the Land of Israel, how it functioned and thus the determination and hope it offered to the rabbinic Jew.

Concluding Remarks: The Message The ideal Temple world crafted by the redactors of Mishnah was all-­ encompassing. It not only included the many religious laws and rituals that only could be performed with a functioning Temple and priesthood, but also included laws and rituals that could be acted upon any time or any place. These laws included topics such as festivals, marriage, and divorce. In addition to the explicit message, in a time of destruction and depression discourses, found in Mishnah’s text, its editors incorporated an implicit message,86 a message that would offer the rabbinic Jew hope and purpose. They offered a solution for continuity, but only within a sacred space, a space that could restore order to a society that appeared to be in utter confusion. This continuity was immediate and concrete; it offered (in the words of Eliade) “a sacralized cosmos” or a “cosmic sacrality.”87 Eliade explains, “The threshold and the door88 show the solution of continuity in space immediately and concretely; hence their great religious importance, for they are symbols and at the same time vehicles of passage from one space to another.” Mishnah, writes Mandelbaum,89 presents man’s power 85  See Kehati’s introduction to tractate Horayot in The Mishnah for a discussion on the purpose of the tractate. 86  To clarify, there are numerous implicit messages offered through the rhetoric of Mishnah (see Lightstone, Social Formation). I am concerned only with the literary forms discussed in this essay. 87  See Eliade, The Sacred and the Profane, 12–25. 88  In our case, the Land of Israel in contrast to the diaspora. 89  Irving Mandelbaum, A History of the Mishnahic Law of Agriculture: Kilayim (Chico, CA: Scholars Press, 1982), 4.

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to impose order on the world, a cosmos which will appear unchanged by historical events. This implicit message was communicated through the three rhetorical terms discussed earlier, eretz ha’amim, aretz/hutz la’aretz, and medinat hayam. These terms convey the sacred in both (using Sarason’s terminology) spatial and social. The sacred space, the Land of and in Israel, has annulled the profane space and revealed a fixed point. Since man (in our case the rabbinic Jew), as Eliade90 explains, “cannot live except in an atmosphere impregnated with the sacred, we must expect to find a large number of techniques for consecrating space. As we saw, the sacred is pre-eminently the real, at once power, efficacity, the source of life and fecundity.”91 In contrast (using Augé’s terminology), we have the non-­ space that surrounds the sacred. The sacred is the world, the cosmos that fixes the limits and establishes the order of the world and the diaspora is no longer a cosmos but foreign, impure, dangerous, and chaotic. Eretz ha’amim implicitly emphasizes the negativity of the diaspora. In contrast to the Land of and in Israel where only small pockets can become impure, the entire diaspora where it was considered habitable or settled (and therefore receive a status of recognizable space) is impure, and thus chaotic, and a space where the rabbinic Jew should not and would not desire to live. The reverse therefore suggests the entire Land of Israel is sacred and desirable and a superior space in which to reside. Aretz versus hutz la’aretz focuses on the actual land in Israel. As discussed, the rabbis valorize the Land primarily in a world where the focus is the Jerusalem Temple and everything related to it. The world of Mishnah’s locative system included the ordinary Jew outside Jerusalem, and in certain cases, even into the profane cosmos. While the Temple stood and functioned, it was the umbilical cord between heaven and earth. Its holiness began and ended in the Land of Israel. With the destruction of the Temple the rabbis reconstructed this world, a possibility for hope. Sarason92 correctly explains, “In particular, the Mishnah embodies the Rabbis’ attempt to control and order what they deem to be the unchanging, immutable paradigms revealed by God to Israel in the laws of the  Eliade, The Sacred and the Profane, 28.  The Land of Israel and the Jerusalem center were most probably considered to be the center of the world. While it is not mentioned in Mishnah, it is found in other Tannaitic and Amoraic sources. This point is discussed in detail by Eliade, ibid., 36–47. 92  Sarason, “Significance,” 111. 90 91

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Torah… but within the same context, implicitly suggested and an alternate working possibility.” This working possibility goes beyond the imaginary or ideal Temple world. The Land, in this post-destruction period, is deemed holy, with the unique opportunity to fulfill God’s special laws, and only there becomes the new umbilical cord to the heavens. Those remaining in the holy Land remain bound by the ancient system of obligations which their ancestors accepted in covenant with God.93 Hutz la’aretz therefore suggests a space where there is no comprehensive and encompassing relationship with the sacred or God. The term medinat hayam presents us with the social aspect of the rabbinic society in the Land of Israel. I have shown that the term medinat hayam appears primarily in the Division of Women, a division that is predominantly concerned with family and generational continuity. As Goldscheider94 points out, “Family themes are ubiquitous in the society Mishnah constructs, particularly in regard to generational continuity, the formation of new families and supportive relationships among kin and extended families.” In other words, the family and its continuity—and their associated values—are the building blocks of a society. While the term medinat hayam refers to the diaspora, the focus is always redirected to what was occurring in the Land of Israel, and what was required there (although the paradigms in question involve behavior outside Israel) is to make the family and society’s structure function. We have indicated how each of the above terms sends its own implicit message, but in order to grasp their comprehensive implicit message they must be seen as one whole. The spatial and social axes cannot be separated. The Land of and in Israel is the remaining hope and purpose in order to restore order and allow the society to function for the all-­ embracing rabbinic Jew, while the diaspora is chaotic and profane.95 Mishnah distinguishes sharply between the profane, impure status of the land of the non-Jew and the intrinsically sacred and pure status of the Land of Israel where the rabbinic Jew resides. The ideal conditions are achieved even without the Jerusalem Temple only where and when both the “spatial and social taxa coincide.”96  Jaffee, Theology of Tithing, 5.  Calvin Goldscheider, “Family Structure, Kinship, and Life Course Transitions: Social Science Explorations of the Mishnah.” Forthcoming in the Journal Studies in Judaism, Humanities and the Social Sciences. 95  See Mandelbaum, Mishnahic Law of Agriculture, 4. 96  See Sarason, “Significance of the Land,” 115. 93 94

CHAPTER 4

Marginal Person and/or Marginal Situation: The Convert in Mishnah Simcha Fishbane

Introduction The topic of Jewish converts and conversion has been of interest to both rabbis and scholars, whose works have been based on both Jewish and non-Jewish texts where they seek to understand the historical and social as well as the textual place of the convert within Judaism and its history. Those who focus upon early rabbinic texts will introduce proof texts from all rabbinic literature of the early rabbinic period. For example, when they will identify the source of Tannaitic literature such as Mishnah, Tosefta, and early Midrash, these sources are presented interchangeably; it is considered one body of literature. Following the scholarship of Neusner, Lightstone, and Porton,1 I suggest using a focused approach. I will examine  See Gary G.  Porton, The Stranger Within Your Gates: Converts and Conversion in Rabbinic Literature (Chicago and London: The University of Chicago Press, 1994), 16–17, for a discussion of the development of early rabbinic texts. See, also, Jacob Neusner, Judaism: The Evidence of the Mishnah (Chicago and London: The University of Chicago Press, 1981), and Jack N. Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 1

S. Fishbane (*) Graduate School of Jewish Studies, Touro College & University System, New York, NY, USA e-mail: [email protected] © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_4

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only the text of Mishnah as a stand-alone document. Mishnah, considered to be the first authoritative rabbinic document or code, was redacted in Palestine in approximately the second century of the Common Era. Jacob Neusner demonstrates that the agenda of one document such as Mishnah cannot assume to be the same as a later text. Neusner also argued and attempted to demonstrate that the later redactors altered data from earlier texts by either significantly expanding or reworking such information as stories.2 Mishnah laid the foundation and agenda for subsequent rabbinic documents that included Tosefta3 and Midrash. Thus, this essay will focus only on Mishnah’s text. This same methodology on the topic of conversion and converts in Mishnah appears in one chapter of Porton’s book.

Theoretical Framework Porton (p. 14) correctly points out that “the rabbinic corpus permits us to study only the sociological aspects of the convert’s role in Israelite society as envisioned and described by the rabbis.” For this purpose, I turn to the theoretical discussion of the sociologists. The convert (ger, plural gerim) can at first glance be equated with Georg Simmel’s4 concept of the “stranger.”5 Simmel (p.  143) describes the stranger as an individual who has overcome his need to come and go. He is now “fixed within a certain spatial circle, or within a group whose boundaries are analogous to spatial boundaries.” Simmel continues to explain that this stranger status is affected by the fact that initially he did not belong to this group and, by joining, he transports qualities and values that are not and cannot be indigenous to this community. Simmel Studies in Judaism, Humanities, and the Social Sciences, Fall 2017, 21–44, Volume 1, 1. These three works will be referred to herein simply by the respective author’s last name. 2  Porton (p. 13 footnote 65) presents the different works where Neusner establishes his argument. 3  Porton (p. 32) points out Neusner’s explanation that Tosefa relates to segments within Mishnah in three ways: (1) Tosefta functions as a commentary to Mishnah, which it quotes verbatim; (2) at times Tosefta appears autonomous of Mishnah; and (3) Tosefta is totally independent of Mishnah. 4  Georg Simmel, On Individuality and Social Forms, Selected Writings Donald N. Levine, ed. (Chicago and London: The University of Chicago Press, 1971). 5  Not all the characteristics Simmel attributes to the stranger are compatible with the ger. I have identified what I believe to be those that are fitting to convert. I will show, when I discuss the Mishnah texts, how this theory is applicable to the Mishnah’s convert.

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(pp. 143–150) describes the stranger to be both close and remote. These two characteristics and interactions are what create a form of unity in the group. With the stranger it is possible to have in common more general qualities than those of the organically connected person whose relationship is based on the similarity of traits.6 Simmel explains (p. 147), “The commonality provides a basis for unifying the members, to be sure; but it does not specifically direct these particular persons to one another.” The stranger can become close to the group member only when there is a joint feeling of nationality or social position, occupation or of general human nature. He is remote when these similarities extend beyond both the stranger and the member and the connection is a result of the connection of a great many people. He continues (pp. 148–149), As such, the stranger is near and far at the same time, as in any relationship based on merely universal human similarities. Between these two factors of nearness and distance, however, a peculiar tension arises, since the consciousness of having only the absolutely general in common has exactly the effect of putting a special emphasis on which is not common. For a stranger to the country, the city, the race, and so on, what is stressed is again nothing individual, but alien origin, a quality which he has, or could have, in common with many other strangers…Despite his being inorganically appended to it, the stranger is still an organic member of the group.

Although there develops a relationship of nearness to the stranger, this connection includes specific conditions required of the stranger, which includes reminders of his origin and that he is not organically part of the group. Robert Park,7 a student of Simmel,8 continues to develop Simmel’s theory and introduces the model of the marginal man or outsider. Park understood marginality to be one’s living and sharing intimately in the margin of two cultures and two societies, a “cultural hybrid.” The two cultures that are being discussed here are the previous and present  See Simmel On Individuality, p. 146.  Robert E.  Park, “Human Migration and the Marginal Man.” American Journal of Sociology, May, Vol. 33, no. 6 1928, 881–93. 8  Also, Simmel’s student Edwin Stonequist developed Park’s theory in The Marginal Man (New York: Russell and Russell, 1937). Both views are closely allied to the extent they can be considered as the Park-Stonequist theory. See also a discussion of Park’s theory by Chad Alan Goldberg, “Robert Park’s Marginal Man: The Career of a Concept in American Sociology.” Laboratorium, Vol. 4, no. 2 2012, 199–217. 6 7

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communities into which this marginal person goes in and out, which this marginal individual was caught between. Using Kerckhoff’s9 terminology, “the marginal man is one who has internalized the norms of a particular group (thus, it is his reference group) but he is not completely recognized by others as being a legitimate member of that group (thus, it does not become his membership group).” Dickie-Clark10 took the concept of marginality that focused on the individual or the psychological to the sociological. He introduced the model of the “marginal situation.” Using this concept, we can argue that it is not the individual who was necessarily marginal but rather situations formed by the group and its leaders that produced selective marginalization. Mishnah, the vantage point of this essay, is concerned with the protection of the purity and solidarity of the community. Its redactors created a very strong and closed boundary system as well as a legal system to guarantee the traditions and safety of their ideal society from outside influences and contamination. It is this legal system that the converts have chosen to become a part of and that introduced the marginal situation that they knowingly accept. The ger, as an individual, as in the case of gentiles in Mishnah, is not what concerns the redactors of Mishnah but rather their interest focuses on the group.11 In other words, it is not the marginal person that is the issue but the marginal situation as presented by the redactors of Mishnah. Furthermore, in contrast to the marginal man discussed above, the convert is completely recognized by others as being a legitimate member of the group, but (as with other groups of Jews) with specific restrictions. I will continue to discuss this below. In order to correctly understand the view of Mishnah redactors I first turn to the Mishnah text.

9   Alan C.  Kerckhoff and Thomas C.  McCormic, “Marginal Status and Marginal Personality.” Social Forces, Vol. 34, No. 1, October 1955, 48–55, p. 50. 10  H. F. Dickie-Clark, “The Marginal Situation: A Contribution to Marginality Theory.” Social Forces, March 1966, 363–70, Volume 44, Number 3; and The Marginal Situation (London and New York: Routledge, 1998). 11  See Simcha Fishbane, Deviancy in Early Rabbinic Judaism (Leiden and Boston: Brill, 2007), 141–163, where I discuss this in detail.

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Mishnah Though Scripture is infrequently cited in Mishnah, it served for the rabbis as the basis of the Mishnah. It set the stage for the Mishnaic rulings and became its point of departure. The Torah refers countless times to the ger. Sometimes it is speaking of the resident alien (ger toshav) but primarily of the convert. The ger in the Torah, while being an identified category of Israelites, is categorized alongside the widow, orphan, and the poor. Scripture considers the convert to be as much an Israelite as other nativeborn Israelites12 but also awarded special compassion toward the ger.13 Since Torah identified the category of the ger, I believe the Mishnah redactors followed suit. This will be clarified below in the discussion of Mishnah. The term ger and its derivates appear 73 times in Mishnah.14 The Convert’s Status and Literacy in Mishnah Porton (p. 18) classifies the convert as a sub-class, suggesting that he is a Jew but with a lower status than a native-born Jew. I do not believe that the converts in Judaism can be considered to be a class. Vitt,15 in the Blackwell Encyclopedia of Sociology, defines class as “whether higher or lower in relative ranking – involves familiarity with certain manners and customs, similar lifestyles access to (or exclusion from) sources of privilege, knowledge, income, wealth, and feelings of community with other members of the same class. Personal interests may not depend upon the position and attainments of the social class as a whole, since relations between and among social classes are complicated by race, gender, age and ethnicity, and changing workplace and other issues as well.” The convert in Mishnah does not fulfill the above criteria. Porton bases his conclusion on Tractate Horayot 3:8:

12  See, for example, Exodus 12:19, 49, Numbers 9:14, 15:15. For a discussion on this issue, see Talmudic Encyclopedia, Volume 6 pp. 253–289. 13  See, for example, Deuteronomy 10:19, Leviticus 19:34. For a discussion on this topic, see Talmudic Encyclopedia Volume 1 pp. 210–211. 14  I have not included the term ger toshav since it does not translate convert. The term ger in Scripture can often be translated ger toshav. See Talmudic Encyclopedia Volume 6 pp. 289–304 for a discussion of the resident alien. 15  Lois A. Vitt, “Class.” In The Blackwell Encyclopedia of Sociology, edited by George Ritzer, 533–37. Vol. II (Malden: Blackwell Publishing, 2007), p. 536.

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A priest takes precedence over a Levite, over an Israelite, an Israelite over a mamzer, a mamzer over a Netin,16 a Netin over a proselyte, a proselyte over a freed slave. Under what circumstances? When all of them are equivalent. But if the mamzer was a disciple of a sage and a high priest was an am haaretz, the mamzer who is a disciple of a sage takes precedence over a high priest who is an am haaretz.

I suggest this Mishnah is not referring to status. Mishnah’s rabbis do not inform their readers in what situations the cases of precedence apply. The traditional commentaries17 suggest the preferences after the first the Kohen, Levi, and Israelite are based upon lineage. I propose the final statement in the Mishnah reflects the Mishnah’s agenda, which is summarized in the words “the mamzer who is a disciple of a sage takes precedence over a high priest who is an am haaretz.” It is the rabbis and their knowledge of Jewish rabbinic law that takes priority in the hierarchy of Jews and Judaism; thus, I suggest it is an issue of Jewish literacy. Those who lived their lives as Jews have the greater advantage of a Jewish education than those who entered the Jewish world at a later age. Schiffman18 (p. 194) and Porton (p. 199) are correct in assuming that the proselyte was uneducated in the laws of rabbinic Judaism beyond the basic laws. The list offered by Mishnah would suggest levels of education beginning with the Priest, during Temple period to be a teacher, rather than lineage. I will discuss the mamzer and Netin below. The convert’s lack of rabbinic knowledge is also suggested in other mishnayot. In Tractate Niddah 7:3: All the bloodstains which come from Rekem are clean. R. Judah declares unclean, because they are converts and err.

Some Mishnah commentaries explain that this Mishnah is concerned with converts who reverted to idolatry. Others contend that since the convert does not conceal bloodstains, they may be those of menstruous  A netin is a descendant of the Gibeonites, who became proselytes in the time of Joshua.  See Pinchas Kehati’s “Commentary” in Mishnah. (Jerusalem: Department for Torah Education and Culture in the Diaspora, 1994). [First Volume published in English in 1994 through 1996] for a summary of these views. 18  Lawrence H. Schiffman, Conversion to Judaism in Tannaitic Halakhah. Edited by Adam Mintz and Marc D. Stern (New York: Urim Publications, 2015), pp. 189–215. 16 17

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women.19 These commentators argue that the Mishnah is focusing only on the inhabitants of the city of Rekem. I suggest this as an example where Rabbi Judah is expressing his concern over the convert’s lack of knowledge and therefore his inability to correctly understand all complicated laws concerning bloodstains. An additional example of lack of literacy is in Tractate Horayot 1:4: [If] the court gave a decision, and one of the members of the court realized that they had erred and said to them, you are in error, or if the head of the court was not there, or if one of them was a proselyte, a mamzer, a Netin, or an elder who did not have children – lo, these are exempt [from a public offering under the provisions of Lev. 4:14], since “Congregation” is said here [Lev. 4:13] and “Congregation” is said later [Num. 15:24]. Just as “congregation” later on applies only in the case in which all of them are suitable for making a decision, so “congregation” stated here refers to a case in which all of them are suitable for making a decision.

Although the Mishnah offers a Scriptural passage to support its opinion, the convert cannot be a member of a court of 71. I suggest the motivating factor is literacy. As we saw in the Mishnah Tractate Horayot 3:8, the mamzer and Netin were placed with the convert on a lower level of literacy. They are also placed in this Mishnah alongside the ger. Tractate Pesahim 8:8 further substantiates our argument, … A proselyte who converted on the eve of Passover [the fourteenth of Nisan] – the House of Shamai says, he immerses and eats his Passover offering in the evening. And the House of Hillel say, he who takes his leave of the foreskin is as if he took leave of the grave [and must be sprinkled on the third and seventh day after circumcision as if he had suffered corpse uncleanness].

The same citation is also found in Tractate Eduyot 5:2. The Houses of Hillel and Shamai disagree in this case, when a proselyte converts on the eve of Passover, what the ritual requirement entails that would permit this new Jew to eat from the Passover offering. According to the accepted rabbinic interpretation20 the House of Hillel feared that in the following year the convert would come in contact with a corpse and  See Kehati’s commentary on this Mishnah.  See Maimonides commentary and Kehati’s commentary on this Mishnah.

19 20

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think that just as in the previous year, he was able to immerse himself and eat the Passover sacrifice so he could do the same this year without realizing that now as a Jew he is required to wait seven days. The ger is considered to be unlearned and therefore unaware of the laws of eating sacrifices. This is one place in Mishnah where the conversion ritual process of circumcision is implicitly referred to. This Mishna, based on the passage in Exodus 12:48–49 discussing the laws of Passover, states, “And when a stranger (ger) shall sojourn with you, and will keep the Passover to the Lord, let all his males be circumcised, and then let him come near and keep it; and he shall be as a native of the land; for no uncircumcised person shall eat of it. One Torah shall be one law for the native and for the stranger (ger) that sojourns among you.” The process of conversion is also suggested in Tractate Keritot 2:1 where Rabbi Eliezer b. Jacob says that a ger after circumcision and submersion is still required to bring a sacrifice.21 From Gentile to Jew: A Transitional Situation Numerous mishnayot are concerned with the immediate effect of conversion on halakhic ritual practice. Tractate Peah 4:622: [As regards] a gentile who had harvested his field, and then converted [the produce he had harvested is] exempt from the [restrictions of] gleaning, the forgotten sheaf, and peah, since these are designated during the harvest, [i.e. before the gentile, converted so that his crop never became subject] Rabbi Judah obligates [such a man] to [the law of the] forgotten sheaf, since [the law of the] forgotten sheaf applies only once he binds [the sheaves, i.e. after the gentile had converted and the produce has become subject].

The obligation of a Jewish landowner to give the poor leket, shikehah, and peah applies at the time the field’s crop is reaped. Since working in his field this individual converted only after the reaping was completed, he is not obligated to give the poor these gifts from his crops. Rabbi Yehudah argues that shikehah takes effect after the reaping was completed when the 21  It is not clear if this Mishnah refers to the part of the ritual process of circumcision. I will discuss this below. 22  Translations of Mishnah have been adapted from Jacob Neusner, trans. The Mishnah: A New Translation (New Haven and London: Yale University Press, 1988). I will discuss this Mishnah below.

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individual had converted and thus is a Jew with all the requirements and obligations of a Jew. This scenario as in the following cases falls into a category I will term a technical legal state that does not reflect on the status of the convert. Rather the issue is the transitional situation from non-Jew to Jew. The rabbis throughout Mishnah base their rulings on the principle that if the Bible writes that a law is intended for the Jew (an Israelite) that it will not apply to a non-Jew who is thus not commanded to fulfill this law. For example, in the case of Peah as well as leket and shikhekhah, Leviticus 19:9 states, “and when you reap”—“you” excludes the non-Jew.23 Furthermore, this exegesis of Torah, where the term bnei Yisrael (children of Israel) is written, excludes all that are not born as Jews or part of the “community” (kahal) and thus requires the ger to be explicitly identified. This principle is applied throughout Mishnah. I will discuss this below when presenting the different cases in Mishnah.24 A similar scenario is presented in Tractate Hallah 3:625 concerning the ritual of separating the dough to be given as a priestly gift. An additional and similar situation is found in Hullin 10:4 that discusses the offering of priestly dues from a slaughtered cow. If it was slaughtered before he converted he is exempt from the dues.26 Tractate Gittin 2:6: [If] a minor received [the writ of divorce from the husband] and then passed the point of maturity, a deaf mute and he regained the power of speech, a blind man and he regained the power of sight, and idiot and he regained his senses, a gentile27 and he converted, [it remains] invalid.… This is the general principle: In any case in which the agent at the outset and at the end was in full command of his senses, it is valid.

This scenario focuses on the Division of Women. Since Mishnah’s principle declares the beginning of the ritual act requires the individual to be 23  A passage in Deut. 24:19 writes concerning shikehah “your harvest” excluding the harvest of a non-Jew. 24  See Talmudic Encyclopedia Volume 6 pp. 253–289 that discusses this issue in detail. 25  See Numbers 15:17–21 that states, “speak to the children of Israel.” 26  In Tractate Hullin 1:1 the Mishnah states that if a non-Jew slaughters a cow, it is carrion and renders unclean by carrying since it is stated in Deut. 12:21 “and you shall slaughter and eat,” what you slaughtered and not what a non-Jew slaughtered. 27  This legal principle is outlined in Tractate Gittin 2:5, stating that a non-Jew is not permitted to bring a get.

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a Jew, in this case, at the ritual outset, the man was still a gentile. Mishnah explicitly rules in Tractate Gittin 2:5 that a gentile, since he is not obligated in the laws of divorce, is not qualified to be an agent and deliver a get to the woman. Tractate Kiddushin 3:5: … He who says to a woman, Lo you are betrothed to me after I convert to Judaism, of after you convert, after I am freed or after you are freed, after your husband died or after your sister dies, after your levir will have performed the rite of removing the shoe with you. She is not betrothed.

Although this can be viewed as a transitional situation, an additional concept (principle) is introduced. The redactors present a scenario where Mishnah discusses the possibility of marriage before conversion and concludes since he is unable to betroth her now he cannot betroth her in the future. Tractate Yevamot 2:8: It is a religious duty for the oldest [surviving brother] to enter into Levirate marriage [with the deceased, childless brother’s widow]. But if the youngest went ahead [and married her], he has acquired [the sister-in-law]. He who is suspected [of having intercourse] with a slave woman, who is subsequently set free, or with a gentile woman who subsequently converts, lo, this one should not marry [her]. But if he married her, they do not remove her from his possession.

The circumstance, as we discussed, is similar to the above case and is concerned with transition from gentile to Jew. Our situation begins when she was still a gentile and is allegedly sexually involved with a Jewish man. Although such relations are frowned upon, as a non-Jew she does not have the same restrictions as a Jewish woman, but even so, if she converts, the Mishnah prefers he (the Jew) should not marry her (the convert). Since these were only allegations and not proven facts, as she is now a Jewess, she cannot be forced into divorce. These allegations as we find throughout rabbinic law are not to be totally ignored; thus, the Mishnah rabbis prefer they don’t marry.28 Tractate Zavim 2:3: 28  Maimonides explains the reason for this law since people may say that she converted only because of this person’s licentious behavior and that he married her only in order to engage in such behavior. See Kehati’s commentary on this Mishnah.

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He who sees semen does not become susceptible to uncleanness by flux for twenty-four hours. Rabbi Yose says, for that day alone. A gentile who sees semen and converted [thereafter] – forthwith is he susceptible to uncleanness by reason of flux.

Turning to the Division of Purities we find a transitional situation which delineates when the obligation to observe the purity laws commences. The gentile is exempt from all laws of zav, but after conversion the “new Jew” is obligated in all the impurity laws including the laws of zav. Whether one sees semen or flux while being a non-Jew he is exempt from laws of purity. I will discuss the topic of the zav and the ger below. An additional case of impurities is discussed in Negaim 7:1 where the Mishnah differentiated between before and after the conversion. The topic of negaim or spots on one’s flesh, home, and so on that would cause impurities is based on the passages in Leviticus 13–14. Our Mishnah’s situation cited is based on the passage in Leviticus 13:2, “When a man shall have in the skin of his flesh a swelling, a scab or a bright spot….” The Mishnah understands the words “shall have” to imply that only after the commandment was given did these laws have an effect. A similar principle is applied to a convert. While a gentile the law had no consequence but as soon as he converted these laws applied to the new Jew. Tractate Bekhorot 8:1: … He who had no children and who married a woman who already had given birth [or] if she was a bondswoman and then made free, a gentile and converted, after she came to the Israelite, she gave birth, he is a firstborn in respect to inheritance but not a firstborn in respect to the priest. Rabbi Yose the Galilean says, he is firstborn for inheritance and for the priest, since it is said, “Whatsoever opens the womb among the children of Israel” (Exodus 13:12) – [this is applicable] once they [the offspring] will open the womb of Israelite[s]. He who has children, and who married a woman who had not given birth; she converted when pregnant; [or if] she was freed when pregnant … it is a firstborn in respect to the priest but not a firstborn in respect to inheritance.

In the Division of Holy Things, Tractate Bekhorot discusses the laws of the first born. If a male child is a first born to a Jewish Israelite woman and a Jewish Israelite father,29 the child is eligible for laws of double  In contrast to a son of a Priest or Levite who are exempt priestly redemption.

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inheritance (as a first born) as well as laws related to redemption from the priest. If the child was conceived by a gentile woman and if it was born after the mother converted, the child (as long as she had no other children) is part of the priestly redemption, but does not receive a double portion. Receiving a double portion as a first born is dependent on the father. If the father had other children the child would not be eligible for the double inheritance. In addition, the child had to be conceived by a Jewish woman (or converted woman). The case presented in this Mishnah further clarifies the transitional situation. In the case of redemption from the priest, the convert’s previous status, as a gentile is what determines the law. For inheritance it is the father’s actions that are the determining factor. The discussion in Mishnah that discusses the convert and bekhor stems from the passage in Exodus 13:2 stating, “Sanctify to me all the firstborn, whatever opens the womb among the children of Israel, both of man and of beast.” Since Scripture explicitly writes the “children of Israel,” it was necessary for Mishnah to follow its principle and identify the case of the convert. Concern and Compassion Mishnah is primarily a book of law and rules; therefore, it has little room for special needs or compassion. Yet, following the lead of Scripture, it shows compassion in specific cases. I have shown this in my discussion of the poor30 and we find this stance being repeated again in the case of the proselyte. As I discussed above the convert is grouped with the poor. The Torah reminds us to love the stranger or ger. The Mishnah follows suit. From the following Mishnah it can be understood that just as a claim of fraud applies to buying and selling, so a claim of fraud can be applied to spoken words. Tractate Bava Metzia 4:10: If he was a child of proselytes, one may not say to him, remember what your folks used to do. For it is said “And a proselyte you shall not wrong nor oppress.” (Exodus 22:20)

Or, Tractate Sheviit 10:9:

 See Fishbane, forthcoming.

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… One who borrows [money] from a convert whose children converted with him, need not repay [the debt] to his children. But if the [debtor] repaid [the children, for the debt owed to their father]  – the sages are pleased with him.

In the following Mishnah a convert has the opportunity to inherit from his father. Although all ties to non-Jewish relatives are severed and the convert halakhically should not have any relationship with his father (including financial), the rabbis permitted him to inherit from his father. The Mishnah set parameters and guidelines for receiving the inheritance but did permit it. The Mishnah in Tractate Demai31 6:10 states: A proselyte and a gentile who inherited [the property of] their father, [who was] a gentile-he [the proselyte brother] may say to him [the gentile brother], you take the idols and I [will take] the produce. And if [he said this] after it [the property] came into his possession, this arrangement is forbidden.

The rabbis were willing to show an understanding toward the convert but only as long as he did not violate Torah prohibitions such as laws pertaining to idol worship. Tractate Ketubot 9:9: And a minor boy whose father married him off – her [his wife’s] marriage contract is confirmed [as valid after he reaches maturity]. For on the strength of that document he confirmed [the marriage]. A proselyte who converted, and his wife alongside him [did the same] – [her original] marriage contract is valid. For on the strength of that document he [the husband] confirmed [the marriage].32

The Mishnah is concerned with the amount of money a husband would be required to pay his wife in the case of divorce or death. When the ketubah was written, she expected 200 dinars as an Israelite (virgin) woman  It is also recorded as 6:9.  It can be suggested that the law is similar to the minor, that when he would come of age she should continue to be his wife on the basis of the ketubah he had written when he was a minor. Similarly in the case of the convert the ketubah was written on condition when they converted she would continue to be his wife with the same ketubah. See Kehati on this Mishnah. 31 32

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is awarded. The husband now only wants to pay her 100 since after they were converted she was not a virgin. The Mishnah concludes her original marriage contract is valid. Although one can argue that since the original ketubah was written before the conversion its validity can be questioned. The Mishnah rabbis expressed concern for the female convert and validate her ketubah and stated monies. Inheritance The following Mishnah summarizes the basic law of inheritance from a convert. Tractate Bava Kama 4:7: An ox belonging to a woman, an ox belonging to orphans, an ox belonging to a guardian, an ox of the wilderness, an ox belonging to the sanctuary, an ox belonging to a proselyte who died lacking heirs, lo these [oxen] are liable to the death penalty. Rabbi Judah says, an ox of the wilderness, an ox belonging to the sanctuary, and the ox of a proselyte who died are exempt from liability to the death penalty, for they are not subject to a particular owner.

The Mishnah discusses a situation when an ox killed a man, therefore requiring the ox to be stoned. This is based on the passage in Exodus 21:28: “When an ox gores a man or a woman to death the ox shall be stoned….” Two halakhic principles can be concluded from this Mishnah: 1. While for a Jew from birth who has no immediate heirs is considered to have some heirs in his extended family, the convert does not, since he has severed all ties with his extended family. 2. Thus the property of the convert is considered hefker (ownerless), therefore permitting any other Jew to lay claim to it. This halakhic principle is not related to the possible lower status of the convert but rather to a halakhic situation, a legal status or what I have termed a marginal situation that governed Mishnah rabbis’ principles of halakhah. The additional mishnayot that discuss property of the proselyte are based on these two principles. They include the mishnayot from:

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(a) Tractate Shekalim 7:6 that discusses the case of a convert that died and left sacrifices to be sacrificed but no libations. If he has no heirs, the community pays for the libations. (b) Tractate Bava Kama 5:4 that discusses the case when a man intended to strike another but struck a pregnant woman and she miscarried, a payment is made (to the woman’s husband) for the embryo. In case of a deceased convert who was married to this injured woman who miscarried or a convert married to a deceased convert the striker is exempt from payment for the loss of the embryo since in the case of the convert who dies without heirs whoever is first to take it attains his property and the attacker was first to seize what he holds. (c) Tractate Bava Kama 9:11 discusses the instance of one who steals from a convert who has no heirs, and swears falsely to him that he did not steal from him and the convert died. He pays the principal and the fine of one-fifth to the priest. (d) Tractate Bava Batra 3:3 that discusses the issue of hazakah (acquiring an object or property). One who takes possession of the property of a convert who died without heirs, thus the property becomes ownerless and, therefore, the first person who takes it acquires it. (e) Tractate Bava Batra 4:9 continues the theme of ownership and writes that if one takes possession of the property or field of a convert who had died without heirs, the first person to take possession of this property owns it, for it is considered ownerless. Although not concerned with inheritance, the Mishnah in Tractate Yevamot 11:2 deals with a situation that the convert has severed all ties with his family and does not have the status of a fraternal relationship by the father.33 The Mishnah states, The convert whose sons converted with her-they [the sons] neither perform the rite of halisah nor enter into levirate marriage, even if the conception of the first was not in a state of sanctity and the birth was in a state of sanctity and the second was conceived and born in a state of sanctity.

33  See Talmudic Encyclopedia Volume 6 pp.  253–289 where this situation is related to Scripture stating that the laws are for Israelites.

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Preserving the Holy Seed The Mishnah places great importance on preserving the holy seed of Israel. The Jerusalem Temple and the priesthood take center stage in Mishnah’s ideal society. The rabbis were very rigorous when it came to who can marry into the congregation of Israel and especially into the priesthood. Tractate Qiddushin 4:1: Ten castes came up from Babylonia: priests, Levites, Israelites, impaired priests, converts, and freed slaves, mamzers, Netins, silenced ones [shetuqi] and foundlings. Priests, Levites, and Israelite are permitted to marry among one another. Levites, Israelites, impaired priests, converts and freed slaves are permitted to marry among one another. Converts, freed slaves, mamzers, Netins, silenced ones, and foundlings are permitted to marry one another.

The primary concern of Mishnah is those of blemished lineage would not intermarry with those of unblemished lineage. The emphasis is upon the priestly stock. Once the priestly lineage was protected, the remaining groups are more flexible. The following Mishnah continues to discuss the priestly lineage. The redactors of Mishnah are concerned with future generations and the influence on the priestly lineage. Mishnah offers a possibility to correct this blemish. Tractate Qiddushin 4:6: The daughter of a male of impaired priestly stock is invalid for marriage into the priesthood for all time. An Israelite who married a woman of impaired priestly stock – his daughter is valid for marriage into the priesthood. A man of impaired priestly stock who married an Israelite girl  – his daughter is invalid for marriage into the priesthood. R. Yehudah says, the daughter of a male proselyte is equivalent to the daughter of a male of impaired priestly stock.

The redactors of Mishnah continue to discuss the topic of the previous Mishnah including proselytes and in what circumstances they can marry a priest, thus opening a door for complete integration into the society. Tractate Qiddushin 4:7:

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Rabbi Eliezer b. Jacob says, an Israelite who marries a female proselyte – his daughter is suitable for marriage into the priesthood. And a proselyte who married an Israelite girl  – his daughter is valid for marriage into the priesthood. But a male proselyte who married a female proselyte  – his daughter is invalid for marriage into the priesthood. All the same are proselytes and freed slaves, even down to ten generations – [the daughters cannot marry into the priesthood] unless the mother is an Israelite. R. Yose says, alas, a proselyte who marries a female proselyte – his daughter is valid for marriage into the priesthood.

The rabbis also stressed this concern regarding marriage between the convert, convert’s children, and priests. In Tractate Bikkurim 1:5, the Mishnah writes that this type of marriage is prohibited even through ten generations unless the mother is a native-born Israelite. Tractate Yevamot 8:2: … Those who testicles are crushed or whose penis is cut off are permitted to have sexual relations with a female convert and a freed slave girl. They are prohibited only from coming into the congregation, since it is written, “He whose testicles are crushed and whose penis is cut off shall not enter the congregation of the Lord.” (Dt. 23:2)

The Mishnah thus suggests that converts are not included in the congregation of the Lord; thus, they would be permitted to marry Jews with these deformities.34 The concept “not to enter the congregation of the Lord” is also related to other Jews with deficiencies such as the bastard (mamzer) (Deut. 23:3). The term congregation (kahal) is used by Scripture and by the rabbis to specifically refer to marriage, who is permitted to marry whom. In the case of the convert, since he is from a blemished descent, he can, in addition to being permitted to marry an Israelite and Levite, marry those of blemished lineage.35

 See Kehati commentary, p. 111.  Rabbi Naftali Zvi Berlin in his Torah commentary Emek Davar argues that our Mishnah is referring to a convert whose testicles are crushed or whose penis is cut off. 34 35

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Past Culture or Stigma The redactors of Mishnah seem to follow the approach of Tosefta and Tannaitic Midrash that the ger is as a newborn person or native-born Israelite.36 Even with their new status, converts cannot rid themselves of certain physical attributes and some historical factual realities. For example, Mishnah develops the halakhic principle that a female less than three years old is in all circumstances considered a virgin. Older than three years, even if she converted, is considered a non-virgin since all gentile women are promiscuous (even a three-year-old). This physical reality cannot change even though converted and, therefore, has ramifications on who the female convert can marry and their financial payments in case of divorce or death. For example, in Tractate Ketubot 1:3, the Mishnah discusses the principle of the marriage contract (ketubah) when the husband has the obligation to pay the wife a specific amount of money in the case of divorce or death, which is 200 dinars for virgins and 100 dinars for non-virgins. Mishnah writes, A convert, a woman taken captive, and a slave girl who were redeemed or who were freed at an age of less than three years and one day – their marriage contract is two hundred [dinars]. And they are subject to claim against their virginity.

Tractate Ketubot 3:1 discusses a situation when a maiden (naarah) is violated by a man. The Torah in Deut. 22:28–29 states that if the girl is a virgin a man should pay the father a fine of 50 shekels (200 dinars) and marry the girl. The Mishnah applies the halakhic principle of three years to the above case. If one cohabits with a convert girl, with a girl taken captive, and a slave girl who were redeemed, who converted or who were freed [respectively] when they were at an age of less than three years and one day [and who remain in the status of virgins].

In this situation the same laws as a Jewish (virgin) maiden would apply.

 See Porton who devotes a chapter to discuss each of these texts.

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Mishnah 3:2 amplifies the preceding Mishnah and presents the opposite situation when the maiden is not a virgin. In such a case there is no fine. The Mishnah writes, And these do not receive a fine [from the man who seduces them]: He who cohabits with a convert, a girl taken captive, and a slave girl who were redeemed, who converted or who were freed when they were at an age of more than three years and one day [and who do not remain in the status of virgins].

An additional Mishnah that is based on the convert’s past history (physical reality) and the law of three years is found in Tractate Yevamot 6:5: … And the sages say the category of a whore applies only to the woman who has converted or to the woman who has been freed from slavery [because of their prior status] and to the woman who has undergone licentious sexual relations.

In the case of the proselyte, the term whore refers to the licentious behavior of the non-Jew and thus the inability to marry a priest. Not only can the convert not disregard her physical reality but also the proselyte is confronted with particular historical facts that he or she cannot shed. The Mishnah in Tractate Bikkurim 1:4 writes, These [people] bring [first fruits] but do not recite: a proselyte brings but does not recite because he cannot say, “I have come into the Land which the Lord swore to our fathers to give us.” (Deut. 20:3). But if his mother was an Israelite, he brings and recites. And when he [the proselyte] prays in private, he says “God of the fathers of Israel.” And when he prays in the synagogue, he says, “God of your fathers.” [But] if his mother was an Israelite, he says, “God of our fathers.”

A similar concept is found in Tractate Ma’aser Sheni 5:14 which states that since the convert cannot proclaim “the land which you have given us” (Deut. 26:15) they cannot recite the confession that accompanied the Ma’aser Sheni (second tithe) ritual.37

 The ritual is described in the previous mishnayot 5:10–14.

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Principles of Halakhah and Biblical Marginality Mishnah is based upon the interpretation of Scripture, although not frequently quoted, as well as principles of Jewish law deduced from biblical passages. I have pointed out above that when Scripture specifically writes that the commandment refers to the Israelites the rabbis understand this to exclude converts (persons not born Israelites). The Mishnah is then required to explicitly inform its students when these laws would include the convert (or not). I discussed above such cases as in Tractate Ma’aser Sheni 5:14; additional such situations are found in: Tractate Eduyot 5:6 Aqabia b. Mahalalel gave testimony in four matters … He would say, They do not administer bitter water [to test the woman accused of adultery] as in the case of the proselyte woman or in the case of a freed slave girl. And sages say, They administer the test.

The Mishnah redactors present a dispute between the rabbis and Aqabia b. Mahalalel. The scenario is based upon scripture’s instructions in Numbers 5:11–21 that writes if a husband of a woman was jealous of his wife and she secluded herself with another man, she is given the bitter waters to drink. The result of this ritual will decide if she is guilty or innocent. Aqabia b. Mahalalel explains the passage in Numbers 5:12: “Speak unto the Children of Israel” that incorporates only native-born Jews, to exclude converts. The Sages argue that the convert is administered the bitter waters to drink for the Torah states (Numbers 5:12) “and say unto them” – implying all, including Jewish converts. Tractate Ketubot 4:3: The convert whose daughter converted with her, and she [the daughter] committed an act of fornication [when she was a betrothed girl] – lo, this one is put to death through strangling. She is not subject to the rule, “At the door of her father’s house” (Deut. 22:21), “nor to a hundred selas” (Deut. 22:19) (in the case of one who slandered her). [If] her conception was not in a state of sanctity but her parturition was in the state of sanctity, lo, this one is put to death by stoning. She is not subject to the rule, “At the door of her father’s house, nor not to a hundred selas”. [If] her conception and parturition were in a state of sanctity, lo, she is equivalent to an Israelite girl for every purpose. [If] she has a father but no “door of her father’s house”

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[her father has no house], [or if] she has “a door of her father’s house” but no father, lo, this one is put to death with stoning. “At the door of her father’s house” is stated only as a duty [in addition to stoning].

The Torah in Deut. 22:19–21 writes the laws of a slanderer. If the accusation is true and the virgin maiden committed adultery (after betrothal), the girl is stoned after being led out of the door of her father’s house. In the case of a female convert the punishment is strangulation (a lesser punishment than stoning) and not to be led out of her father’s door (since she is considered to have no father). This difference in law between the native born and the convert is derived from the passage (22:21) “because she committed a shameful act in Israel,” excluding the convert.38 Tractate Zavim 2:1: All are susceptible to uncleanness through flux, even converts, even slaves, whether freed or not freed.

Scripture, in Leviticus 15:2, while discussing the issue of zav, states, “Speak to the children of Israel” which excludes the non-native-born Israelites. Nevertheless, the rabbis decreed proselytes (who are not native-­ born Israelites) are rendered impure by flux. The rabbis derive this from the ostensibly superfluous “and say to them” which includes converts.39 Tractate Shekalim 1:3: On the fifteenth of that same month [Adar] they set up money changers’ tables in the provinces. On the twenty-fifth [of Adar] they set them up in the Temple. Once they were set up in the Temple, they began to exact pledges [from those who had not paid the tax in specie]. From whom do they exact a pledge? – Levites, Israelites, proselytes, and freed slaves.

The Torah, in Exodus 30:12–16, commands the Israelites to give a half a shekel. The funds were to be used in the tabernacle and later in the Jerusalem Temple. 30:13 states “of the children of Israel.” In accordance with the halakhic principle that the children of Israel refer to native-born Israelites, Mishnah needed to explicitly include the proselyte in the

 See Kehati’s commentary to this Mishnah that explains all the different possible scenarios.  See Kehati’s commentary on this Mishnah.

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obligation to give the half shekel and all the other requirements related to the ritual process.40 An additional Mishnah in Tractate Shekalim 1:6 discusses this tax and the ger’s obligations. It is based on the same premise discussed above.

Concluding Remarks41 Mishnah redactors who created an ideal Temple society placed great prominence on boundaries. These boundaries were erected not only to exclude outsiders but also to control and protect insiders by structuring specific social interaction and in turn acceptable marriages. These boundaries are placed to reinforce community cohesion and solidify its place in society. While in some communities exclusion implies social inequalities within a total community, for Mishnah editors this is not their concern. Exclusions do not include all dimensions of social life; some exclusions are partial and some are more thorough; some are temporary and some are more permanent; some deny access to resources and others do not. Mishnah constructed (based on Scripture) different degrees of exclusion and there are multiple ways in which those excluded can be re-integrated into the community. While barred from specific religious and social activities, these partially excluded persons remain fully functional members of the community. The Mishnah views these contextual exclusions or marginal situations which excluded these members only from particular and specified activities integral to the ongoing activities of the community. They retain full membership in their society even if they are not involved in all obligations and privileges of communal membership. These selective rituals and religious activities often were restricted only for part of their life course. We have seen in the case of the proselyte the Mishnah focuses on selective social and religious restrictions. While the Mishnah presents reasons for the Jew to create boundaries and to distance himself from the non-Jew, in the case of converts there is no actual need for the native-born Jew to distance himself. There is no worry of interaction and negative influence on the Jew either religiously or culturally. To reiterate, overall the Mishnah  See Kehati’s introduction to Tractate Shekalim for a detailed description of the ritual.  I would like to offer special thanks to Professor Calvin Goldscheider for sharing not only his written works (especially 2018) with me but also the extensive conversations discussing the sociology of Mishnah. 40 41

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does not deal extensively or even exclusively with converts, but rather with a range of Jews in marginal situations. These situations exclude the convert from specific religious and social activities, but for the most part they live and function as every other Jew. Some of these social or religious behaviors permanently exclude the ger, and for other rituals the converts are only excluded temporarily. Exclusion does not mean isolation or economic segregation. Although birth or biology may influence this marginal exclusion, this barrier can be crossed through marriage. I have argued that in Mishnah the convert was considered a Jew as a native-born Jew but found him or herself in marginal situations. Dickie-­ Clark42 discusses the marginal situation in the framework of hierarchy. He explains, “The hierarchical situations actually found in a society are almost always made up of a number of rankings in respect of various matters regulated by the hierarchy.” He continues, “The marginal character of situations could, instead, be seen as the result of any departure from complete consistency or congruence among the rankings of an individual or stratum in the various matters regulated by the hierarchy.… marginal situations can be defined as those hierarchal situations in which there is any inconsistency in the rankings in any of the matters falling within the scope of the hierarchy.” Turning to Mishnah we have found the proselyte to be culturally accepted. The rabbis (the hierarchy) advanced their overall agenda for Mishnah employing the redactor’s guiding halakhic principles. Therefore, we find that when transferring from the status of non-Jew to Jew the Jewish laws only apply when the transfer process is completed. Specific biological and historical realities cannot be ignored and thus have a direct impact on specific religious and social possibilities. Rabbinic knowledge plays an important role in the rabbis’ world and thus also has a direct effect on the convert’s participation in specific religious situations. Marginal situations for the Jewish insider in the rabbinic world are not unique. This type of marginality can be found to be temporary or permanent. The ger is just another case of marginal situation in the world of Mishnah.

 “The Marginal Situation: A Contribution to Marginality Theory” (1966), pp. 366–367.

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CHAPTER 5

Religious Authority in the Mishnah: Social Science Perspectives on the Emerging Role of Scholars Calvin Goldscheider

Social scientists have long treated the political system, broadly defined, as one of the main anchors of societal structure and social dynamics. The major political systems include both external and internal dimensions of control and authority in the public sphere and are parallel and connected to the stratification and family/kinship systems and linked to cultural values. In particular, systematic social constructions of societies include an analysis of authority/power within the community to identify the basics of social control, social organization, equilibrium, and continuity. External systems of politics shape actual and normative politics. As guidelines to our exploration of religious authority in the Mishnah, we shall focus on the politics presented in the Mishnah, outline some key social science questions posed in part by Max Weber and Emile Durkheim, and apply them to the explication of Mishnaic texts.

C. Goldscheider (*) Maxcy Hall, Brown University, Providence, RI, USA e-mail: [email protected] © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_5

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Searching the Mishnah for Evidence The Mishnah is an ideal text for studying social dynamics and responses to changing political and religious conditions. As the premier document of Rabbinic Judaism, it provides a window into an imagined community against the backdrop of the society that was developing in the second and third centuries. Subsequent and related documents expanded and clarified the Mishnaic conceptualization of rabbinic authority. The Mishnaic construction of society can be thought of as built on generations of oral transmission that was in turn a response to external political contexts. The emerging political and religious circumstances had required the development of new conceptions of religious and political authority. Specifically, the Mishnah confronted the consequences of the absence of an internal political center that had characterized previous social and religious life. These were the results of changes in external political control, the destruction of the sanctuary/temple which had been the core and center of religious authority, out-migration and population dispersal, and the resultant changing expressions of religious ritual. The Mishnah directly dealt with what the rabbis thought should be the source of religious authority in a changed social/political context. Underlying the Mishnaic conception of religious authority is a fundamental question: How did the orally transmitted Mishnah, when organized in written form around the end of the second century and beginning of the third century, respond to the absence of a central religious sanctuary and confront the social challenges of an altered political and administrative control system? The changing basis of sovereignty and the destruction of the central religious and ritual center clearly had challenged the structure of temple/priest authority and de-­ emphasized the role of prophets and charismatic leadership. These changes necessitated the evolution of different and legitimate sources of religious and political power.1 Hence, it is not surprising that one dimension of communal life that the Mishnah constructs is the specification of an elite religious/political core, 1  For some qualifications of this view and the limitations of my exclusive focus on the Mishnah, see my previous publications: Calvin Goldscheider “Inclusion and Exclusion in the Mishnah: Non-Jews, Converts and the Nazir” Studies in Judaism, Humanities, and the Social Sciences, Volume 1,1, (Fall, 2017) 3–19; “Family Structure and Transitions between Family Statuses” Studies in Judaism, Humanities, and the Social Sciences, Volume 2.2, (Spring, 2019) 17–38, and “Religious Holidays, Values, Rituals: Mishnaic Perspectives,” Studies in Judaism, Humanities, and the Social Sciences, Volume 2.2, (Spring, 2019), 39–59.

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an administrative and judicial system that takes its place alongside hierarchal systems of status based on inherited position and of social class based on economic resources. In the pre-Mishnaic biblical past and in turn when the Temple was organized, the elite as constructed in the Mishnah were primarily part of the priesthood: priests were the formal religious authority in charge of religious rituals, spiritual purification rites, and physical healing, and were religious functionaries who received taxes from landowners and gifts/support from the general population. Priests were in large part a patriarchal caste, segregated residentially, occupying a particular occupational niche, and protected generationally by strict marriage and inheritance rules.2 Derived from biblical specifications and family traditions, priests performed religious rituals and carried out religious traditions and practices. Their legitimacy was derived from the written Torah text and kinship traditions and the acquiescence of the broader population. Combined with the charismatic prophet, the priests had been the core source of religious authority when the Temple was standing. Wealthy landowners represented another dimension of the social and religious class structure. All this began to change in the post-Temple period when the oral traditions were being transmitted and the written Mishnah was being formulated. The radical sociopolitical external changes in the post-Temple period required at least the beginning of an internal communal re-structuring to address a series of leadership crises demanding solutions in the community that the Mishnah envisioned, particularly since there had been an intense relationship between religious and secular norms and regulations. The religious system was pervasive and it had a major impact on a series of secular norms (e.g., family and social class) and behavior. Specifically, pressing issues emerged in the transition from majority to minority status and revolved directly around complex questions of who should be the governing and administrative elite when the Temple was no longer the center of religious activities and the community was under the formal control of an external polity. What should be the source of the emerging new religious authority and how will the emerging elite be legitimated? Who 2  Although priests were often described as a totally enclosed caste with limited possibilities of marriage outside the caste system, there were clear exceptions. See, for example, the Mishnah tractate Kedushin 3,12. Priests should be considered a patriarchal caste, albeit with some porous boundaries. See Calvin Goldscheider “Family Structure, Kinship, and Life Course Transitions: Social Science Explorations of the Mishnah,” the following chapter in this volume, 147–180.

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should have authority in the local communities to make decisions about religious rituals and changing social norms within its diverse non-Temple venues and geographic locations? Who should be the source of ritual and religious continuity and interpretation when the elite were no longer an inherited caste of priests? How would the emergent religious/scholarly authorities regulate the generational transmission of their authority and transmit leadership to the next generation when prophecy ended? Who would represent the interests of the community to the governing secular political institutions? What should be the new roles and status of the priests who had lost their core function and place within the community’s hierarchy? These issues had been around for several generations and needed to be incorporated when the traditions were formulated in written form. The written Mishnah may be treated as the culmination of a longer evolving oral process.

Core Questions There are complex and multi-layered questions when conceptualizing emergent authority and political systems of a minority group in a weakened and changing social/political context. Answers began to evolve in a variety of the discussions presented in the 63 volumes of the Mishnah. The overly simplified and direct answer provided by the political orientation of the Mishnah was that the role of religious authority and power shifted to the rabbis/scholars themselves, the authors of the emergent now written text, which had been formerly conveyed orally. As the Mishnah constructed the broader issues, rabbinic authorities would come to be the preservers and interpreters of Judaism as well as the sources to adapt the rules and regulations to the developing religious traditions. Rabbis would be charged with responding to the challenges of an emerging sociopolitical system and the changing culture of the Jewish community. Hence, rabbis/scholars emerge as the key source of religious authority in the imagined community of the Mishnah, agents of God, answering to God and the people, and most importantly transmitting to the next generation the traditions they received, interpreted, and constructed. They were to establish norms and regulations consistent with their new sociopolitical circumstances, justified where appropriate by reference to biblical and family traditions and supplemented by their own interpretations. Primarily, the emphasis would be their reliance on the diverse re-constructed oral

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traditions of their teachers and mentors and their own justifications of rituals and re-interpretations of traditions. In the process, the roles of the priest would necessarily become muted at best and marginal to the regular functioning of the community.3 Indeed, the control of knowledge and the authentication of tradition become the key bases of legitimacy of the rabbis for the community and among their peers. In this sense, the immediate legitimate authority of the rabbis as constructed in the Mishnah would derive from continuous study and knowledge, debated and shared in institutions, and reinforced by peers and justified by transmitted norms, values, and practices. Legitimacy would not be assigned to divine revelation or prophecy nor derived directly from a literal reading of biblical texts or from simple direct generational inheritance. Many ambiguities remained in the texts and multiple and conflicting traditions had been transmitted in diverse contexts by different rabbinic authorities. Additionally, challenges developed as social contexts had changed and new problems emerged that demanded creative solutions. Religious authority constructed by the rabbis in the Mishnah evolved to fill the vacuum created by the destruction of the Temple and the end of centrality of the priests. In short, the rabbis became the bridge (and reflected the tensions) among a tripartite set of factors: (1) the simple meaning of the written Torah text, (2) remembered and reconstructed Temple practices, and (3) the oral traditions associated with their interpretations and their transmission to previous generations. A good illustration of this confluence of considerations is the opening Mishnah of tractate Berakhot where the timing of the evening recitation of the Shema prayer is linked by some rabbis to the timing of Temple practices of priests when they would enter the Temple to eat Terumah (the priest’s portion of the offering of a sacrifice), not to the natural identification of the “evening” hour (based on the literal meaning of the biblical text) (Berakhot 1, 1). Interpretation, biblical text, and remembered/reconstructed Temple practice.

3  The contrast between the emerging role of the rabbis and the declining role of priests is presented in the Mishnah as a simple dichotomy in the Weberian sense of “ideal types.” Perhaps that is because the rabbis were the authors of the Mishnah and wanted to clearly reinforce their ascendancy in the authority structure they constructed. Surely this reflected the reality they experienced. I focus in this paper on the evidence presented on the authority structure only as constructed in the Mishnah.

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Social Science Guidelines The elucidation of changing religious authority expressed in the Mishnah is complex and critical in understanding the development of Judaism. Many scholars have studied these issues from textual and historical perspectives. Among them, Jacob Neusner and Michael Walzer have directly considered questions of politics as presented in the Mishnah but from different perspectives on politics.4 Many others have indirectly dealt with the transitions in religious authority as conceptualized in the Mishnah.5 Three main multi-faceted themes guide our social science analysis of religious authority in the Mishnah: (1) The way the Mishnah identifies the rabbis and scholars as the new political elite and recognized religious authorities relative to other groups, and, in particular, the shift away from the role of the priests; (2) the legitimacy outlined and specified by the Mishnah for the transformation of rabbinic and scholarly roles; and (3) the understanding of diversity and disagreement among the rabbis in the context of the Mishnah. We illustrate the development of these themes by exploring some of the detailed evidence specified in the Mishnah. We draw on the classic work of Max Weber6 for overall theoretical guidelines and to classify which of the various types of authorities apply to rabbinic authority constructed in the Mishnah. We note as well the emphasis Weber placed on ideal types and on issues of legitimacy. We follow the conception of Emile Durkheim on the functions of religion to underline the role of religion,

4  See Jacob Neusner, Rabbinic Political Theory: Religion and Politics in the Mishnah (University of Chicago Press, 1991) (emphasizing “religious, historical and philosophical perspectives”); Michael Walzer et al., The Jewish Political Tradition, Volume One. Authority (New Haven: Yale University Press, 2000) (emphasizing social-historical arguments); and the sources cited therein. Compare Naftali Cohn, “Rabbis as Jurists: on the Representation of Past and Present Legal Institutions in the Mishnah,” Journal of Jewish Studies Volume LX, No. 2, 2009, 245–263. 5   See, for example, David W.  Halivni: Midrash, Mishnah, and Gemara: The Jewish Predilection for Justified Law (Cambridge: Harvard University Press, 1986); Shaye Cohen, From the Maccabees to the Mishnah (Westminster: John Knox Press, Third Edition, 2014); see also Christine Hayes “Rabbinic Contestations of Authority” Cardozo Law Review, vol. 28:1 (2006), 123–141; Shaye J.D. Cohen, “The Rabbi in Second-Century Jewish Society,” The Cambridge History of Judaism, Volume Three, The Early Roman Period, edited by William Horbury, W.D. Davies, and John Sturdy (Cambridge: Cambridge University Press, 1999) chapter 29. 6  Max Weber “Politics as a Vocation” In H. Gerth and C. W. Mills (eds.) From Max Weber Essays in Sociology (New York: Oxford University Press) 1958, 77–128.

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religious institutions, and religious authority as fundamental to the exploration of social cohesion and social organization.7 Overall, we need to consider separately two issues: (1) authority treated broadly including internal and external political authority and (2) religious authority, in particular diverse authority internal to the community. In societies where religion broadly conceived is the powerful organizing principle, religious authority is the dominant form of authority. Hence Durkheim is instructive in pointing to the details of religious authority as a macro organizing principle in maintaining order, organization, and continuity. Weber, on the other hand, is important in differentiating types of authority and generating categories or ideal types of religious authorities, distinguishing prophets from priests and both from the type of rabbinic authority outlined in the Mishnah. Note for both Weber and Durkheim there is the overarching issue of legitimacy and the need for mechanisms of adherence to religious authority if it is to be effective. Weber makes several critical observations that are relevant for the examination of religious authority in the Mishnah. He identifies several types of political authority: traditional, charismatic, and professional. These apply directly to the clarification of the type of religious authority in the Mishnah and contrasts with the pre-Mishnaic religious authority. Weber notes that these categories are “ideal types” and likely there is a mixture of the three types for any given context. Religious authority as constructed in the Mishnah is probably less identified as charismatic and combines traditional and professional. The charismatic is more descriptive of the authority of the Prophets as presented in the Bible and the priestly authority is closer to Weber’s traditional type. Whatever the type of religious authority imagined in the Mishnah, it reflects a mixture of all three types, with an emphasis on the “professional.” “Traditional” religious authority is the authority of the “eternal past” based on habit. Weber defines custom as largely patriarchal and patrimonial in scope. Charismatic authority is the authority of revelation, heroism, or other leadership qualities of an individual. This type of religious authority Weber associates with the “charisma” of Prophets. Legal rational or professional authority is legality based on valid statutes which are enforced by technically trained civil servants, as part of institutions. Legal authority

7  Durkheim, Emile. [1915] 1965. The Elementary Forms of the Religious Life (translated by J. W. Swain) (New York: The Free Press).

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assumes a rational competence and conditioned obedience of both the civil servants and the people to the legal apparatus. One of Weber’s key insights is that each type of religious authority requires legitimacy. Weber described these three ideal types of authority as needing to be considered legitimate—that is, they are accepted as creating binding obligations on the part of others. After all, unless a person is obligated to obey certain rules and injunctions in a manner which goes beyond mere external submission, the very concept of authority is nullified. Thus, legitimacy is required so that the public accepts the new political/religious authority. It is important to underline that Weber’s conceptions of authority are “ideal types” and it would be very unusual to find any of them existing in “pure” or described in absolute form in human society. At most, one might find authority which is predominantly one type or another but with at least one of the others mixed in. The complexities of human social relationships guarantee that authority systems will be complex and changing as well, and that is certainly a key feature of religious authorities identified in the Mishnah. Durkheim’s framework is particularly important in emphasizing the role of religious authority shaping how communities function as a cohesive unit. Thus, despite conflict of ideas and competition between religious institutions, there are overriding themes of social solidarity and collective consciousness. In traditional societies, chaos (or at least social disorganization) would result without legitimate religious authority. Religious authority and associated institutions provide the basis for both continuity with past culture and generational transmission of core values. Particularly, in times of broad and massive social and political changes such as those characteristics of the immediate pre-Mishnaic period, religious authority and new institutions serve as anchors connecting the past, solving immediate problems, and providing a vision of the future.

The Identification of Rabbis/Scholars in the Status Hierarchy Let us examine first how the Mishnah constructs religious authority in the context of general stratification or the status hierarchy. The rabbis/authors of the Mishnah treat rabbinic authority as the apex of hierarchy above all other statuses. The Mishnah spells out in rich detail the new form of authority, its diversity, and its primacy over economic and hereditary

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positions. There is an explicit hierarchical ranking in the Mishnah at the end of the tractate Horayot (3, 8) that relates to the Kohen (Priest) caste and other elements of the stratification system. The context is the determination of who among those in captivity should be redeemed and in what order of priority, that is, by what basis of status. The Mishnah states: A Kohen takes precedence over a Levite (to be redeemed); a Levite takes precedence over an Israelite; an Israelite takes precedence over a Mamzer (a child born of an adulterous or inappropriate union); a Mamzer takes precedence over a Netin (a descendant of the Gibeonites since a mamzer is from Israel stock and a Netin from foreign stock); a Netin takes precedence over a Ger (a convert … since a Netin grew up in closer proximity to the Israel nation); and a Ger takes precedence over a freed Canaanite slave.

These categories clearly reflect a conceptualization of a ranked hierarchy of differentiation based on complex criteria of caste, foreign stock, or type of non-Jew. In a critical specification and qualification, the Mishnah adds: If the mamzer was a scholar (Talmid Hakham) and the Kohen Gadol (the High Priest) was an ignoramus (Am Haaretz), then the mamzer scholar takes precedence over a Kohen Gadol ignoramus (Horayot 3, 8).

Clearly, the ideal in the Mishnah places the scholar in the highest social status irrespective of personal ethnic origin or family background, and the priest is downgraded if he is an ignoramus. As a result, the Mishnah notes the status differentiation of scholars in the relative status hierarchy and the precedence of the scholar to be redeemed. If the mamzer (the lowest ranked status and someone marginal to the community) was a scholar (Talmid Hacham) and the Kohen Gadol (High Priest, the highest status in the pre-Mishnaic period) was an ignoramus (Am Haaretz), then the mamzer scholar takes precedence over a Kohen Gadol ignoramus. Thus, in many ways, the Mishnah’s academic argument upends the status hierarchy and begins to replace the established hierarchy of priests at the highest level by learning and knowledge (Horayot 3, 8). Furthermore, in the first chapter of tractate Yoma, dealing with the role of the High Priest in preparation for his responsibility in the Temple on the day of Yom Kippur, the Mishnah states that if the High Priest was a Hacham (scholar) he would expound on various appropriate biblical texts.

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If not, scholars/rabbis would expound for him from various texts. Again, the priests did not always have the literary expertise and thus the rabbis would then instruct him appropriately even though the main events of the Temple on Yom Kippur were the sole responsibility of the priest. This entire discussion in the Mishnah should be viewed as the basis for an imagined theoretical differentiation of scholar from priest. Again, this text is written in a post-Temple period and provides insight into the Mishnaic conception of the relative transition from one type of religious authority to another (from priest to scholar) and is not necessarily a description of reality. While the Mishnah surely reflects real events, it is not designed to describe them. There is a further hint of the relative higher status of the rabbis that can be obtained by examining the greater seriousness of violating rabbinic interpretations relative to violating the literal words in the Torah. For example, while there is an explicit Torah injunction/commandment to wear Tefillin (phylacteries), the details of the content of the Tefillin boxes are unspecified in the Torah. The Mishnah specifies the punishment for not adhering to the Tefillin commandment and altering its contents. The teachings of the Rabbis (Sofrim-scribes) are more strict than the rules in the Torah. If the Rabbinic teaching is that there is no requirement to wear phylacteries (in contradistinction to the explicit commandment of Tefillin in the written Torah), the elder teacher is exempt from the severest penalty (since everyone is expected to know the explicit ruling of the Torah). But if he taught that there are five compartments in the phylacteries worn on the head (adding an additional compartment than the four compartments specified by the Rabbis) the rabbi/teacher is liable (for the severest penalty) since it is a violation of rabbinic authority. (Sanhedrin, 11, 3)

Thus, the rabbis have explicit and powerful authority over religious legislation involving religious ritual, quite equal or at least parallel and juxtaposed to the written Torah. The violation of that rabbinic authority demands the highest penalty as prescribed by the Mishnah. What then remains of the role of priests in the image of the Mishnah? The hierarchy of Priests, Levites, and Israelites remains only or mainly in the public reading of the Torah as specified by the rabbis in the Mishnah (Gittin 5, 8): “These rules were specified by the Rabbis in the name of Peace: Priests read (from the Torah) first, afterward Levites, and afterward Israelites.” This is a limited and constrained status hierarchy

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relative to the past authority and power of the Priests, in the service of some symbolic ranking in the interests of tradition. The wide range of authority of the priests is replaced by a symbolic deference to past status. In contrast, in those cases when the bases of the Mishnaic discussion were questions associated directly with the Temple and animal Sacrifices (e.g., when the focus was on donations to the Temple in the value of particular classes of people), it is the priests who are in charge of assessing the value amount and they and others are listed. The rabbis/scholars are not mentioned at all.8 The past roles of the priests in the Temple period were clearly dominant and authoritative as constructed by the Mishnah; the new post-Temple roles of the rabbis/scholars are at the top of the status pyramid. After the destruction of the Temple, the authority of the rabbis/scholars was further reinforced and extended by the Mishnah.9 The Bet Din (the religious court located in Jerusalem and elsewhere) was the basis for the development of a legal institutional structure. But not everyone lived where there was a formal Bet Din or where an authority structure was legitimated or recognized. So, the Mishnah further provides the basis for legal decisions of even nonexpert individuals (laypersons) and individual rabbis/scholars (i.e., to arrive at judgments and reach legal decisions without a minimum court of three persons). The legitimacy of the rabbis is expressed in transmitting and augmenting the traditions, adjudicating monetary disputes, clarifying and developing local customs, and teaching the rituals in the emergent communities where Jews lived.10 This decentralization of authority provided the rabbis considerable local power in altering and adapting biblical rules, changing or modifying religious rituals, and creating new traditions.11 8  For example, see the mishnayot in tractate Arakhin among other tractates in the Mishnaic division of Kodshim and Taharot. 9  See N. Cohn on the role of rabbis reporting emendations to particular laws—Takkanot— throughout the Mishnah. Cohn, ibid., 256–257. 10  See, for example, the first Mishnah of the tractate Sanhedrin. 11  Almost the entire Mishnaic tractate of Sanhedrin specifies a constructed court system from a simple lower court of three persons to a Supreme Court (Sanhedrin) of 71 persons. It also specifies the legitimacy of a one-person decision-maker in the absence of the small three-person court. None of these is systematically presented in the Torah text. Again I do not make the assumption that these specifications in the Mishnah were carried out, but were clearly part of the mindset of the Mishnah authors/editors. Throughout the Mishnah, there are individual rabbis who have the unquestioned authority to make decisions in a variety of contexts.

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According to the Mishnah, the role of the singular Hacham (scholar) is often as powerful and equivalent to a formal court. This is illustrated in the discussion of family principles. In discussions of the Levirate obligations, or the reporting of one witness about a missing husband, or nullifying the vows of a Nazir, the Hacham serves in lieu of a court (cf. tractate Yevamot, 10, 2; Yevamot, 2, 10; Nazir 5, 3). Even the role of religious or rabbinic authority is modified by the emergent role of the court of laypersons and singular scholars.

Legitimating Rabbinic Authority The transition to rabbinic authority in the Mishnah, invoking the theoretical conceptions of Durkheim and Weber, had to assure legitimacy and popular obedience to authority and thereby reduce the potential chaos and disorganization created by shifts in external power and authority. It is one thing to assert Rabbinic authority and another to build consensus and legitimacy for what appears to be a major transformation. Following Weber, we posit that the transition to the religious authority of the rabbis did not occur all at once but involved a process developing over time but never to return to the “good old days” when priests were in control. How did the Mishnah conceptualize the transition to rabbinic authority, and provide overall legitimacy of political power for the radical departure from the biblical and Temple contexts? One of the clearest statements of the source for the authority of the rabbis was in the first Mishnah of the tractate known as Avot.12 The set of mishnayot in the five chapters of Avot (with a sixth added later) is located in the division Nezikin (damages), designed as guidance for rabbis, scholars, and legislators to organize the legal/moral (halakhic) apparatus of the courts and provide the rabbis with a legitimate and moral structure. Nothing is clearer about the Mishnaic theory of “political” authority and legitimacy than the first chapter and first several mishnayot of the tractate Avot: Moses received the Torah from Sinai (i.e., God) and transmitted it to Joshua, Joshua to the Elders, and they to the Prophets, and the Prophets to the Men of the Great Assembly … and Simeon the Just was the last of the men of the 12  Avot may be translated as our “elite rabbis” rather than literally as “fathers.” This tractate is likely a later addition to the system of Mishnah and may be viewed as a theoretical framework or context for Mishnah as a whole.

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Great Assembly … and Antignos … and (others) received (the Torah) from him...

The latter included his students and then Hillel and Shamai and their students all carrying on the tradition from generation to generation (listed until the end of the first chapter of tractate Avot). The point of all that explicit rhetoric of giving and receiving was to emphasize the great chain of legitimacy and generational transmission when these rabbis made pronouncements, taking the decisions all the way back to Sinai. Rulings were not simply the opinions of rabbis X and Y but according to the presentation of the Mishnah were the authentic revelation from Sinai transmitted from rabbis/scholars/teachers to students over time. Note that the priests, Kohanim, are not included in the list of transmissions. Nor is God or divine revelation mentioned explicitly. In short, the authority of the rabbis derives from the great chain of scholarly transmission back to Moses and to Sinai and is independent of the inherited position of the priests and from continuous and direct divine revelation. The tradition of the priests was based on family genealogy; the authority of the Prophets derived from revelation and charisma. In contrast, the rabbinic tradition according to the Mishnah derives from transmission from teachers to their students. The legitimacy of that religious authority extends back to Moses and Sinai.

Multiple Paths to Legitimacy It was also clear that not all discussions in the Mishnah were the result of direct oral transmission. When there was an absence of any identifiable oral transmission, the rabbis developed a series of logical inferences. For example, in several mishnayot (starting with Mishnah Kritut 3, 7 and continuing through 3, 10) it is reported that Rabbi Akiva asks questions to Rabban Gamliel and Rabbi Joshua. They responded that “we did not hear” the answer directly (i.e., we do not have a direct oral tradition from our teachers), but we know of a parallel case. By an a fortiori argument (Kal v’Homer) or by analogies comparing biblical texts, they are able to deduce an answer by logic. In several cases, the analogies hold. Hence, in the absence of an explicit direct oral tradition taught from one generation to the next, logic based on analogies is developed and legitimate as a basis for the establishment of a new tradition, subsequently to be transmitted orally. Hence, as constructed by the Mishnah, when the traditions are in

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conflict or in dispute or when the rabbis do not remember them or simply have no direct tradition, Kal v’Homer or internal logic is an acceptable and legitimate basis of religious authority and for decision-making. In another reported case in the Mishnah, there is a disagreement between Bet Hillel and Bet Shamai that focuses on reports of a husband who died. It is reported that a woman and her husband were on a trip; she returns and reports that her husband has died. When she reports this to the court in order to claim her Ketubah or have the right to remarry, the Mishnah states, if there had been peaceful relations between the husband and wife and peace “in the world,” she may remarry or enter into a levirate marriage. However, if she had been in conflict with her husband or war was prevalent or the world was not at peace, she is not believed. Bet Hillel agreed with Bet Shamai that a woman is believed under all circumstances when she reports that her husband has died. Under the above circumstances, the question is raised whether she receives her Ketubah money (pledged to her upon marriage). Bet Shamai says yes and Bet Hillel says no. After some discussion in the Mishnah, Bet Hillel changes his view of the ruling and reports that she does receive her Ketubah money. These two mishnayot (Yevamot 15, 2 and 15, 3) illustrate how flexible was Hillel’s position that was originally different from Bet Shamai and after some reasoned discussion Hillel changed his mind to agree with the position of Bet Shamai. We can deduce from this exchange in the Mishnah that reasoning, discussion, and persuasive arguments are significant sources of resolving disputes (see various mishnayot, Yevamot 15, 1–15. 3). At times, the oral tradition confronts some normative practices and needs to be modified. Occasionally, therefore, the Mishnah notes that rules or practices are “Mepnei Darchei Shalom” or “Tikkun HaOlam” (in the “interests of peace” or to “repair the world”). This is the case with regard to practices associated with the disabled, the poor, non-Jews, and those of priestly families.13 Obviously, these modifications involve some innovative practices and norms and become part of the emerging and changing traditions. Direct transmission from Sinai or from previous generations in different contexts is less applicable according to these considerations. Notions of appropriate social relationships dictate new conceptualizations and legitimacy of religious authority. Logic and discussions are legitimate alternatives to direct oral transmission or when there

 Gittin 5, 5–5; Gittin 9, 4.

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are disagreements about the oral tradition. Personal and public contexts are sufficient legitimacy for religious authority. In turn, some types of generational legitimacy of rabbinic authority posed a series of conceptual dilemmas. Most importantly, how did the Mishnah conceptualize disagreements and diverse rulings among the rabbis? Were these disputes and arguments presented in the Mishnah simply different recollections and reconstructions of traditions from previous teachers? How should we understand issues of religious authority when there are two or more conflicting and contradictory views? How can each be treated as legitimate and authoritative?

The Emergence of Disputes and Disagreements Among the Rabbinic Elite While it is not surprising that there are disputes and disagreements between rabbinic authorities in the Mishnah, it is challenging that the disputes themselves were included as an integral part of the Mishnaic text. A beginning understanding of this dilemma can be found in the Mishnah itself. The Mishnah tractate Eduyot focuses directly, and expounds on, disputes and disagreements among individual rabbis noted in the Mishnah. The large number of these disagreements covers several items on almost every page in all eight chapters of this tractate. And the disputes are explicit, often in areas of ritual observances, and have important theoretical consequences and practical implications. Indeed, the text poses the question in the first chapter (Eduyot 1, 4–5): Why do we have these disputes, and why sometimes are the final rulings unlike both of the parties in the disputes? The rabbis heard the rulings from their teachers and the tradition goes back to Sinai and yet the final ruling is not like any of the disputants! Some disagreements represent majority and minority views. At times, when two rabbis disagree the Mishnah notes that the opinions of both are incorrect and a third opinion is invoked. For example, in the first several mishnayot of Eduyot, there are disputes between Shamai and Hillel followed by the statement the “rabbis said the rule is not like either one.” And the rabbis refer to the ruling before another pair of scholars Shemaiah and Abtalion, and everyone accepted the ruling of those scholars rather than those of Hillel and Shamai. The Mishnah continues: And why do we record the (different) positions of Hillel and Shamai? To teach the coming generations that one should not insist of one’s position

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just as the earlier Rabbis (Hillel and Shamai) did not insist on their position (Eduyot 1, 4)…and in general why record the decision of the minority? It is to discard the minority opinion. If someone reports that he received such and such ruling from his teachers, you can say to him, he was in a minority and his ruling was rejected by the majority (Eduyot 1, 6).14

And in a subsequent Mishnah (Eduyot 1, 5–6), there is a further discussion of why the Mishnah records disputes when there are majority and minority positions since we always should follow the majority. The answer given is to make sure that if someone says I heard the ruling from sage X, the Bet Din, the legitimate court, can reject that position because of the majority opinion. Hence, the Bet Din is the final arbiter of the rules when there is an unsettled dispute. Furthermore, when the ruling involves a minority opinion, the Mishnah poses and answers the obvious question (Eduyot 1, 4–5): And why do we record the words of an individual among the many, when the law is [according to] the words of the majority? Because if the court sees [fit] it may rely on the words of the individual. But a court is not able to nullify the words of a fellow court unless they are greater in wisdom and number [than the fellow court]. If they are greater in wisdom but not number, or in number but not in wisdom, they are not able to nullify its words until they become greater in wisdom and number.

This would be an astonishing Mishnah if the only basis of legitimacy is the oral tradition from Sinai! Disputes would be expected to emerge in the transition between oral traditions and the written Mishnah, in the context of the authority vested in diverse sets of rabbis, along with the development of alternative interpretations and different traditions. So, the Beit Din has the legitimate authority to accept minority opinions under some circumstances. A series of mishnayot deal with rules that were heard or learned from groups of established rabbis and they are documented as “witnessed” in these mishnayot. A decision is made on the basis of the reports of what was heard (Eduyot 1, 3). Nevertheless, as we noted earlier, there are also 14  The language of the Mishnah is not clear. See the conflicting interpretations in Kahati’s translation and notes ad locus. And other mishnayot report as well that Hillel relented and changed his mind to rule differently and like Shamai (Eduyot 1, 12; 1, 13; 1, 14; also Gittin, 4, 5).

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mishnayot that indicate how Bet Hillel changed his position and taught like Bet Shamai when he was convinced of the argument (1, 12). Hearing and transmission over time are not the only or final basis for adjudication. How do we put all of these bases of the legitimacy of religious authority in some systematic order? It is helpful to conceptualize three types of disagreements to understand how the Mishnah organizes such disputes about religious authority. Clearly, the variety of forms of legitimacy and authority would lend themselves to disputes and disagreements, to arguments about the specific and differential transmission of knowledge and the diverse norms that developed in different contexts and circumstances, in different places, and among different rabbinic authorities. Religious authority evolved as part of the developing diffuse and diverse contexts in the construction of the post-Temple period. These sources of disagreements and conflicts among the rabbis contrasted with the previous role of the priests who do not seem to have been involved in disputes over specific rituals and were more likely to have been in conflict over which of the priestly families were in charge.15 Disagreements in the Bible over the proper ritual behavior and regulations tend to be settled by pronouncements of charismatic leaders (Prophets) in conjunction with divine intervention. When confronted with new issues (e.g., inheritance of daughters in the absence of sons, wood chopping that might violate the Shabbat, missing Passover celebrations under circumstances of impurity), Moses, the prophet, turns to God for a legal determination. The high priest might turn to the Urim V’Tumim on his breastplate for “divine” or magical guidance. The prophetic or priestly system of authority was deemed less appropriate and ineffective in the new socio/political context as envisioned by the Mishnah. The point about the priests not in conflict over religious issues is sustained throughout the Mishnah. The key is that Mishnah does not record any serious conflicts among the priests. The Mishnah reflects but does describe the reality of the Mishnaic era. Remember the religious authority the rabbis arrogated to themselves was written in the Mishnah by these rabbis and that in fact there was an obvious and sustained recognition of the continuing disputes among the rabbis. There are no serious discussions in the Mishnah about priests disagreeing with one another over how to perform various rituals, how to celebrate religious holidays, which 15  As reflected, for example, in the dispute with the Korah branch of the priestly family in Exodus chapter 16ff.

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marriages are legitimate, or even how to carry out their specific tasks within the Temple. In the Mishnaic conception of religious authorities, diversity and disagreements are presumed in large part to be legitimate. Through a variety of mechanisms, the rabbis are presented in the Mishnah as disagreeing over core issues of ritual and religious rules, over family norms and behavior, over religious responsibilities, and over economic morals and ethical behavior. These disagreements and opinions are presented on almost every page of the Mishnah, for every topic and among a wide range of rabbis. Almost nothing about religious authority is undisputed or presented as definitive in the imagined society that the Mishnah constructs. In this sense, religious authority is emerging, flexible, developing, and changing. Inferred from the disputes recorded among religious authorities in the Mishnah is the legitimate basis of diversity without clear mechanisms of enforcement within the community.

Generational Transmission of Authority The combination of religious authority without clear power of enforcement poses the broader question of the role of generational transmission. As in all stratification systems, the elite (rabbis/scholars in the case of the Mishnah) develop mechanisms and institutions to reproduce themselves. This had been clearly the case for status based on economic criteria and the hereditary position of priests. Similarly, the children (sons) of the rabbis would have somewhat greater access to the sources of rabbinic continuity and there was no complete consensus about the openness of educational opportunities for others. Nevertheless, there was an opportunity to go beyond the inheritance of knowledge and expand the system to be based more on merit. And in the Mishnah, institutions are noted—not only differences between individuals (e.g., Hillel and Shamai) but the Schools (academies) of Hillel and Schools (academies) of Shamai.16 Indeed, the question emerges in the Mishnah whether access to education should be open to all and the moral imperative to have many students versus those who would limit education to a select few. One of the three recommendations by the men of the Great Assembly was to have many 16  See, among many examples, the disputes between the Schools of Shamai and Hillel over the proper position to recite the Shema prayer as noted in tractate Berakhot, 1, 3, and in Berakhot chapter 8 where there is a longer listing of differences between these schools.

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students (Mishnah Avot 1, 1). There is also greater opportunity for those who are defined as capable to acquire knowledge and attain status based on learning. Again, the moral charge in the Mishnah (by Rabbi Yochanan ben Zakkai) is that studying Torah is not inherited or matters of self-­ congratulations for all persons are created to study Torah (Avot 2, 9). Thus, Mishnah specifies and reinforces the authority of the rabbis/ scholars and outlines the power of the rabbis to alter, modify, or interpret (or ignore) selected accepted biblical rules. The rabbis seem to have considerable authority to establish legal precedents, adjudicate disputes, and apply/reinforce the law and have some power outside the community as the elite representatives to the broader secular governmental powers.17 The rabbis are reported to meet with secular authorities to represent the Israeli people as a whole. Priests rarely do, at least as recorded in the Mishnah. The rabbis have less power inside the community over a variety of issues including economics. In large part, the rabbinic authority structure constructed by the Mishnah clearly stands as a substitute for the authority of the priests when the Temple was a functioning institution. At the same time, continuous and extensive disagreements between and among rabbis emerge in the explication of ritual, religious practices, and in the conveyance of religious traditions and social norms. Nevertheless, the chain of transmission gave legitimacy to the rabbis when they had peer support. When there are disagreements or different traditions, the final legal religious determination is the acceptance of the new norms by peers and the community. Although the authority of the rabbis is impressive, even when the heavenly voice (the Bat Kol) is invoked to the contrary, it needs to be complemented by the support of the rabbis’ peers. There is an instructive digression in the Mishnah at the end of the second chapter in the tractate Eruvin (Mishnah 2, 6): Rabbi Ilai “heard (several rulings) from Rabbi Eleazar these rulings related to Eruv (the virtual fence used to allow carrying between private and public domains on the Sabbath) and also to eating some vegetable to fulfill the obligation of Maror (bitter herbs) at the Passover Seder. Rabbi Ilai asked Rabbi Eleazar’s students for confirmation that Rabbi Eleazar indeed said these things. He did not get confirmation from any of his students to sustain his recollection of these traditions. By inference, the halakhic ruling for these 17  At times, the rabbis had the power to reject common practice and alter their own practice deviating from the traditions they received and taught their students (explicitly in Berakhot, 2, 5–7).

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items is not according to Rabbi Ilai’s reported tradition. This suggests not only the power of the rabbis to develop laws and customs but the need to confirm rulings by obtaining some normative consensus among a broader group of scholars (peers or students). Without that consensus, the laws reported to have been heard from a teacher/rabbi cannot be confirmed and are not viewed as authoritative. There is an interesting case reviewed in tractate Kritut 1, 7: because the high price of birds prepared by poor people for a payment to the Temple would discourage poor people from bringing any Korban contribution (since they could not afford all of the required offerings at high prices). Rabbi Simeon ben Gamliel argues a point explicitly against the Torah rule so as to reduce the required number of offerings and therefore adjust the market price for sacrifices offered by poor people. The Mishnah at least theoretically seems to alter/modify the established Torah rules when poverty or some extreme circumstance is at stake. The concerns over issues of poverty and costs and the authority of the rabbis to alter an explicit Torah rule are remarkable. That these issues were recorded in the Mishnah as a basis for a normative statement of the community they imagined is no less remarkable.

Consequences of Scholarly Disputes Following the Durkheimian conceptualization we ask: do the disputes reflect the lack of community solidarity or cohesion? The rabbis themselves in the Mishnah are sensitive to the role of disputes and conflict and claim that often the discussions are academic and do not threaten the wholeness or integrity of the community. First, the disagreements seemed to be abstract and did not reduce the respectful interaction among the disputants. Hillel and Shamai did not hesitate to interact socially and sanction the marriage of their children even when their disagreement reflected an issue about which marriages were permissible. Hillel and Shamai disagreed about which relatives would be exempted from the levirate or halitzah and therefore who the children of such unions may marry (e.g., a Kohen) and whether the children of such unions would be considered mamzerim and not eligible for marriage or status within the community. Despite this dispute over who may marry whom, the families associated with the Shamai tradition did not hesitate to marry those associated with Hillel’s family. Similarly, those in the academy of Hillel would be eligible to marry persons from Bet Shamai’s academy (tractate Yevamot 1, 4).

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Also, disputes over purity or tumah laws did not result in rules limiting the exchange of utensils between these groups, when one group defined the utensils as inappropriate for use while another group defined them as acceptable. These Mishnaic statements are of profound importance reflecting flexibility in behavior despite some fundamental theoretical disagreements and diversity of positions regarding critical issues such as permissible sexual relations, fulfilling biblical injunctions about the levirate, and issues of purity. Equally revealing as we noted earlier is the Mishnah where a series of rulings presenting the views of both Hillel and Shamai concluded that other rabbis rejected both of their opinions. The Mishnah poses the question: Why does the Mishnah record the disputes between Hillel and Shamai when neither view was accepted by the “Hachamim” (who agreed with neither Hillel nor Shamai)? Instead, the rabbis accepted the testimony of non-rabbis (weavers) who reported a decision in the name of Shamaya and Avtalyon. The answer given is to teach the subsequent generations that people should not always persist in their opinion. Just as the rabbis in the past changed their minds when they felt that their opponent’s arguments were correct, so subsequent generations should be willing to change their opinions (Eduyot, 1, 12). What then is the ruling in the Mishnah when individuals come to different conclusions? Here the ruling of the head of the court system or the chief rabbi is enforced. In the end of the first chapter of Rosh Hashanah, there is a discussion of Rabbi Gamliel and his court that made a decision about the timing of the new moon and accepting witnesses. Here a mistake or miscalculation is likely to have been made by Rabbi Gamliel. And the mistake is serious for the community since the timing of the start of the month in question would establish the day of Yom Kippur and that involves the timing and marking of the Holiest day of the year. To publicly demonstrate that the court ruling must be followed, Rabbi Gamliel invites Rabbi Joshua to travel to him on date X that according to Rabbi Joshua is Yom Kippur but according to Rabbi Gamliel is not. What are the consequences? The important point is that the court has the power even when an error is made. Rabbi Joshua travels to Rabbi Gamliel although disagreeing over an important issue as the timing of Yom Kippur and violating it by carrying a staff and with money (Rosh Hashanah 2, 9–10). This is a revealing Mishnah that points to the authority and power of the court with regard to establishing the new month, the sighting of the new moon,

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since it deals with what happens if it turns out that the court erred. The Mishnah in tractate Rosh Hashanah (Mishnah 2, 9) states: Rabban Gamliel sent [Rabbi Joshua] word, saving, ‘I decree upon you to come to me with your staff and your money on the day that comes out to be Yom Kippur, according to your calculation.’ Rabbi Akiva went to [Rabbi Joshua], and found him grieving; he said to him, “I have with what to teach, that all that Rabban Gamliel has done is [bindingly] done, as it is stated (Leviticus 23:4), ‘These are the feasts of the Lord, holy convocations which you shall proclaim;’ whether at their [proper] time, or whether not at their [proper] time, I have no holy convocations except for the ones ­proclaimed by the court.” When [Rabbi Joshua] came to Rabbi Dosa ben Harkinas, [the latter] said to him, “If we are to question the decisions of the court of Rabban Gamle’el, we must [also question the decisions] of all the courts which have stood, from the days of Moses until [today]; as it is stated, (Exodus 24:2), ‘Moses, Aaron, Nadab, Abihu, and seventy of the Elders of Israel went up.’ Why were the names of the Elders not specified? Rather [it was] to teach, that every three men that form a court [to be responsible] over Israel, behold [that court] is to be [considered] like the court of Moses.” [After this], Rabbi Joshua took his staff and his money in his hand, and went to Yavneh to Rabban Gamliel on the day that came out to be Yom Kippur, according to his calculation. [At that point] Rabban Gamliel stood up, and kissed him on his head, [and] he said to him, “Come in peace, my teacher and my disciple! My teacher — in wisdom; and my disciple — in that you accepted my words.”

Another illustration: The Mishnah records the continuous dispute between the houses of Hillel and Shamai on an important issue of carrying from private to public spaces on Yom Tov (Holidays) (Beitzah 1, 5). The House of Shamai has the opinion that on Yom Tov one is prohibited to carry out a child, or the lulav, or the torah scroll from a private to a public place. Bet Hillel permits all three. When we consider the implications of this dispute (if implemented) that carrying from private to public places is forbidden by some major scholars and permitted by others, we can further imagine how these segments of the community would relate to one another. Surely at some point the rules or the norms became like one of the positions (that of Hillel). But if there were practical followers of the Shamai tradition would not they indicate that the Hillel followers were publicly violating the sanctity of the holiday? In their piety and commitment to their teacher Shamai would they not view the Hillel group as sinners (or non-observant)? But remember the argument noted above that even the disagreement between these schools of thought did not prevent

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the daughters of one group from marrying the sons of the other group! Also, the Mishnah records several cases where after some disputes between the houses of Hillel and Shamai, one or the other changes his mind (tractate Eduyot, chapter 1). How do you change your mind if the source of your view is a direct transmission from your teachers of an earlier generation and from them back to Sinai?

The Power of Local Custom and Memory of Temple Practices Consistent with the above rhetorical question is the continuing diversity and legitimacy of customs as, for example, recorded in the tractate Megillah: The issue is the style of reading the Megillah on Purim. Those places where it was the custom to make a blessing before reading the Megillah would make a blessing and those places where the custom was not to make a blessing did not (Megillah 4, 1). The conclusion is: local custom is critical: Everyone, according to the local custom (Hakol KeMinhag haMedinah). And in a series of mishnayot in the tractate of Pesahim (chapter 4) among other places in the Mishnah, the Mishnah reiterates the power of local custom as a guide to behavior. In addition, disagreements would emerge about ritual practices associated with the Temple and tied in to priestly roles and responsibilities. Given the historical distance between the canonization of the Mishnah, several generations after the destruction of the Temple and dispersion of the population to various places within and outside the land of Israel, diverse memories/recollections about past Temple practice would emerge. Thus, for example, disputes over particular activities in the Temple, sequences of animal sacrifices, even the role of the High Priest on Yom Kippur are featured in various tractates of the Mishnah. These of course are all theoretical or academic discussions as the rabbis inserted themselves in the decision-making of the priests of the past. For the same reasons, religious ritual practices in the post-Temple period would be subjects of different traditions and often reflected the diversity of practices in  local areas. These would include some holiday practices and the customs associated with their observances. Ritual items as well would evolve and reflect these different practices. This too would hardly be surprising as local custom and different ritual traditions were developing. Finally, when the power of the rabbis emerges, social norms get established. These social norms were not specified in detail in the Torah but

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were likely influenced by the people living in new areas; different communities would be adapting Judaic norms and developing new ones. These of course would be a function of both different received traditions and the development of new rabbinic traditions. These are almost never connected in the Mishnah to biblical texts and not clearly attributed to differential traditions. Given local custom and the limited communication between communities, multiple customs and rulings would emerge from rabbis/ scholars and their local courts. In all these types of disagreements, the rabbis sought ways to justify and rationalize their positions, based in part on different received traditions and nuanced interpretations of ambiguous biblical texts, or being persuaded by discussions and arguments. In the first Mishnah of Tractate Parah, dealing with the Red Heifer used in the purification rites of the Temple, there are three disputes over an exact language term. Rabbi Yehoshua reports, “so I heard” (i.e., I don’t understand the reason for the different term/concepts used) and Ben Azai explains the terms. Again, the oral transmission had often been unclear and others found ways to explain the term. Legitimacy was based on hearing from past teachers or traditions, if not always understanding the concepts transmitted. The power of the rabbis was first to supplant the inherited authority of the priests and then to interpret biblical rules. This was not a process that marked the priests as recorded in the Mishnah. Priests were agents of tradition and carried out the rules. Rabbis had the authority to clarify an apparent ambiguity in the Torah text or decided new rules and regulations. One of many examples in the Mishnah is the question of observing the Lulav ritual. The Torah (Leviticus 23, 40) seems to instruct Israelites to take the four species (the Arbah Minim) on seven days of the Sukkot Fall holiday (“And be joyous before God for Seven days”). The Torah text also reports that the Lulav and the other ritual items are specifically taken on the first day of the holiday (Bayom Ha’rishon). Is it the first day only or all seven days that Israelites are instructed to use the Lulav? Also, what is to be done with the Lulav when the first day of Sukkot falls on the Sabbath since carrying from private to public spaces is prohibited on the Sabbath? The Mishnah attempts to resolve this apparent inconsistency (Tractate Sukkah, 3, 12, 13, 14 also in Tractate Rosh Hashanah 4, 3). Thus, a function of solving the ambiguities is to preserve communal solidarity in the face of diversity. After the destruction of the Temple Rabbi Yohanan ben Zakkai instituted a takkanah (a new special ruling) that the Lulav be taken in the provinces for seven days, in remembrance of the

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Temple. During the Temple era, the Lulav was indeed taken even on Shabbat when the first day of the Festival falls on Shabbat; all the people were to bring their Lulavim to the synagogue (before the Sabbath) since carrying in a public domain is prohibited on the Sabbath. In the morning, they awoke early and each one recognized his own Lulav and takes it since the Sages have ruled that one does not fulfill his obligation on the first day of the Festival with the Lulav of his friend (based on the verse: [Leviticus 23:40]: “You must take for yourselves on the first day”). One may, however, give it to his friend as a present on the condition that he returns the present to him after use. However, on the other days of the Festival one does fulfill his obligation with the Lulav of his friend. Rabbi Yose says: If the first day of the Festival falls on the Sabbath and one [who had not yet fulfilled the mitzvah of lulav at home] forgot and carried his Lulav into a public domain, he is exempted [from bringing a sacrifice as a penalty for a transgression] since he brought it with permission [while performing a mitzvah]. Clearly according to the Mishnah, the Lulav ritual should be performed for seven days including on the Sabbath. The solution of the conflicting views rested with the rabbinic authorities. The different traditions are modified and, in the process, changes continue.

Concluding Thoughts The evidence of the Mishnah is clear: The rabbis and scholars had become the religious authorities in the community, replacing the charisma of the prophets and the kinship inheritance of the priests. Second, clear norms of legitimacy emerged among the rabbis to reinforce their new status. Most importantly, in the mindset of the Mishnah, authors’ different opinions among scholars did not result in chaos and disorganization. These are consistent with the guiding principle features of Weber and Durkheim’s outline of types of religious authority and the role of religious authority in reinforcing social cohesion and solidarity. Religious authority is a core basis to reinforce social organization and solidarity particularly in traditional societies where religion is a central theme of life. As communities undergo social and political changes, religious authority is transformed as well. In the Mishnah, we have examples of the transition to religious authority in the community that the Mishnah constructs in the post-Temple period. In large part, this reflects the new social, religious, economical, and political circumstances in the communities that the Mishnah authors had confronted. It also reflects the transition

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of the community to minority status and the changes in external forms of political control experienced by the community. According to the Mishnah, the transmission in authority over generations was oral from teacher to student. There were consequences to that orality. One implication was the emergence of different oral traditions and the disputes and disagreements about what was transmitted. Hence, there were important ways that the rabbis/teachers, the emergent religious authorities, made decisions and provided guidance that were developed by logic, inference, and local custom, along with peer and community consensus and support. Thus, there were multiple tracks toward the development of religious authority as presented in the Mishnah. Authority was selective and based on communal consensus which in turn reinforced social solidarity despite continuous disputes. The creative character of Mishnaic discussions did not end the development of changes but discussions were left undecided and ambiguous for resolution by later generations. The disagreements and changes were recorded in the written/ edited version of the oral transmission. However, one goal was to reinforce social cohesion in the face of potential conflict over different traditions. Weber’s argument about ideal types of religious authority beyond that based on charisma and kin connections, and Durkheim’s notion that despite conflict and disputes, religious authorities can reinforce solidarity and cohesion, provide important guidelines for understanding the role of religious authority in the Mishnah. In the vision of the Mishnah, education becomes the primary institutional vehicle for continuity. In the context of potential and actual political chaos and social disruptions, religious authority can function to shape continuity and change. The legitimacy of the rabbis/scholars in place of the priests became the critical transition of authority in most of the Mishnaic text (i.e., the absence of priests in the transmission of traditions). Yet the inclusion of the two out of six sections of the Mishnah (Kodashim and Taharot) emphasizes those responsibilities of the priests and in the temple but not the rabbis. Kodashim focuses mainly on Holy things associated with the Temple and Taharot deals with issues of public and private purities. Rabbinic and scholarly authorities are inserted in these sections but in the transmission of some minor themes not as authorities in those contexts. In particular, what can we suggest when comparing the highlights of the role of transmission, change, and authority of the rabbis in four of the six sections of the Mishnah and the absence of very much discussion of authority except for biblical references and the centrality of the roles of priests in two sections?

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The inclusion of the two sections, Kodshim and Taharot, of the six in the Mishnah corpus defies simple explanation. There are 11 tractates in Kodshim and 12  in Taharot. After the destruction of the Temple why would the editors of the Mishnah include these tractates? The traditional response is that these sections were included in anticipation of a return to the Temple as the central institution under control of the community and the re-establishment of a new central place of worship and sacrifice. As a result, the priestly functions and authority would be reinstituted. Perhaps these sections were included as remembered historical documents of no particular significance. These two sections seem to be included in the Mishnah corpus in anticipation of a return to the “good old days” when the Temple and its centrality would be reinstated. The Mishnah as a set of “utopian documents” and not as ritual guidelines should be considered as part of a constructed imagined society. I suggest that the inclusion of what appears to be extraneous and irrelevant two sections of the Mishnah are not only a vision of the future. By carefully examining in depth selective mishnayot of these two parts, we can discern what the goals and objectives of the redactor were to include them. We have only beginning answers for how we should understand the issues outlined in detail in these sections when the Priests had lost their regular function and the Temple destroyed and the broader community was no longer under Jewish control. In addition to the traditional answer that the Mishnah was preparing for the full return to rebuild the Temple and its institutions and to the preserve the various and detailed rules about the priests and Temple sacrifices, we suggest that the orientation is also toward the contemporary in Mishnaic times. In particular, the inclusion is to point decisively to the value of comparisons in the social science sense. It is as if to convey: this is how religious authority and ritual were carried out in the past but are no longer. Our lives are so different that new forms of social organization and authority are necessary. This emphasis is on changes or modifications in the rules as the conditions and contexts were changing. It is likely that the inclusion of these sections was to highlight the comparisons between the old and new forms of religious authority (among other issues) and the adaptations necessary to the new circumstances. The new post-Temple community was developing and a creative and dynamic Judaism was emergent that was applicable to non-Temple and non-Israel place conditions. Hence, there are mishnayot in these two divisions that focus on explicit rules that are applicable to the Land of Israel and to

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Diaspora communities (sequence beginning Hullin 5, 1), and the fascinating argument that reciting prayers and study about sacrifices are equivalent to bringing the sacrifices (Gemara of tractate Menahot).18 It is also noted that studying religious texts is also equivalent to bringing some required sacrifices. Educational institutions and perhaps prayer institutions are replacing the institutions of the priests and the temple. And religious authority shifts away from previous sources to new dynamic developments associated with rabbis and scholars. Taken together, rabbinic authority as highlighted in the Mishnah’s several divisions and not mentioned in other divisions of the Mishnah provide clues to where and in what contexts new forms of religious authority were legitimate and where it was not. Comparisons allowed for— indeed required—specification and clarification. Just as disputes and disagreements did not result in disorganization and disequilibrium but reinforced solidarity, so the constraints on religious authority reinforced the power of the rabbis in context. It seems that the whole set of Mishnah was an attempt at completeness and a systematic presentation in writing of “oral” Torah from Sinai. To use the social science expression, the view of the Mishnah is that rabbinic authority is a variable (changing over time and among rabbis in different contexts) not a constant.19

18  There are several references in the Gemara about the equivalence of prayer and study to the bringing of sacrifices. Kahati’s edition of the Mishnah notes a Mishnah (Menahot 5, 1) that seems to point to a Mishnaic variation although the citation is not found in the Mishnah. It is likely to be a misprint. The Talmudic reference is Menahot 110:a; Cf. Megillah 3:b and Sanhedrin 43:b. 19  This paper is part of a series concerned with social science perspectives on the Mishnah. See citations in footnote 1. Comments by Jack Lightstone, Simcha Fishbane, Frances Goldscheider, Norma Joseph, Sheldon Kimmel, and David Raab and discussions with Charles Feinberg, Shalom Flank, and Barbara Hobson enhanced the clarity of this presentation. They are not responsible for the various arguments presented. Two general qualifications: (1) Citations from Avot and Eduyot have been viewed by some on literary grounds to be in a different category from the Mishnah corpus either after or before its final redaction. I do not want to enter that set of arguments and I use these citations as general arguments about the mindset of the Mishnaic authors. (2) Historical and text-based scholars of the Mishnah will have particular claims about how the Mishnah was composed and the nature of orality. In defense, I would argue that these questions are less relevant to the social science questions I am posing and do not challenge the fundamental arguments I am making.

CHAPTER 6

Family Structure, Kinship, and Life Course Transitions: Social Science Explorations of the Mishnah Calvin Goldscheider

The Mishnah text, the foundational document of an emergent Rabbinic Judaism, is organized around the functioning of an imagined and constructed community.1 Social scientists who investigate the dynamics of An earlier version of this paper was presented at the annual meetings of the European Association of Biblical Studies, Cordoba, Spain, 2015. Important and helpful comments by Jack Lightstone, Simcha Fishbane, and Michael Satlow are gratefully acknowledged. Emeritus faculty research funds from Brown University contributed to the development and presentation of this paper. 1  The Mishnah was originally transmitted orally over several generations and became part of the established Judaic canon in the third century. Part of the text developed from a period before the Temple in Jerusalem was destroyed. Hence, the text available relates to an image of community that did not exist at the time the Mishnah was completed and likely never existed. I refer to this as an “imagined” or “socially constructed” community. On Orality, see, among others, M. Jaffee, Torah in the Mouth: Writing and Oral Tradition in Palestinian Judaism 200 BCE-400 CE (New York: Oxford University Press, 2001).

C. Goldscheider (*) Maxcy Hall, Brown University, Providence, RI, USA e-mail: [email protected] © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_6

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societies are in a unique position to raise and address questions focused on the structure and functioning of communities and identify the values that cement its organization. The major conceptual categories that a social scientist would invoke to study any society include four core themes: (1) Stratification and economic resources—how social groups within societies are ranked and valued—including which resources are available, which are relatively more important and their distribution; the different roles of the wealthy and the poor and inequalities between them; and the importance of economic networks; (2) group boundaries and otherness—exclusion and inclusion—who is in and who is out of the group; the basis for inclusion; and the transitions into and out of the group; and (3) family and generational relationships and the role of family structure, networks, and kinship relationships that are the essential building blocks of a community over the generations. Cementing stratification, group boundaries, and family themes is (4) the study of culture and values that operate within each of the aforementioned three overarching themes. Together, these four themes are complex in their details and are interrelated with each other. Exploring the evidence in the 63 volumes that comprise the corpus of the Mishnah, this paper outlines a social science conceptual framework to focus on how the Mishnah constructs family structure and family relationships.2 We examine elements of the structure and variation of family processes as conceptualized in the Mishnah and its construction of transitions from one part of the life course to another. We explore not only the status of adulthood but transitions to adulthood; not only younger and older ages but the processes of age associated with the life course; not only marriage and divorce but the transitions to these statuses; not only childbearing and family size but the transition to parenthood and childrearing. Thus, we will explore how the Mishnah formulates generational continuity, the formation of families, kinship relationships, and intergroup marriages (e.g., who is included in the extended family; 2  This paper is part of a larger project that analyzes all four core themes. On hierarchy and stratification in the Mishnah, see Calvin Goldscheider, “Inequality, Stratification, and Exclusion in the Mishnah: An Exploratory Social Science Analysis” in Jeffrey Stackert, Barbara Porter, and David Wright (eds.) Gazing on the Deep: Ancient Near Eastern and Other Studies in Honor of Tzvi Abusch (Bethesda: CDL Press, 2010), 565–584. Also, Calvin Goldscheider, “Inclusion and Exclusion in the Mishnah: Non-Jews, Converts and the Nazir,” Studies in Judaism, Humanities and the Social Sciences, Volume 1, 2017. See also the paper I presented on “Religious Holidays, Values and Rituals: Mishnaic Perspectives” at the annual meetings of the European Association of Biblical Studies, Berlin, 2017.

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who may marry whom), how families are sustained, how they change over the life course, and the values and ideals associated with family life. The social construction of these family processes in the Mishnah provides clues to the conceptualization of these core building blocks of a society and their associated values and is an essential basis for understanding the community that the Mishnah imagines. Given the richness and complexities of the texts, and the interrelationships among themes, we highlight in this paper only the major family themes constructed by the Mishnah and summarize some core family patterns that emerge.

Family Themes: Preliminaries The family is the cornerstone of society, connecting the individual to the broader community and to past traditions. It is the primary arena of informal and formal socialization, where social relationships are developed between parents and children (i.e., the generations), between husband and wives, and among extended family members. The family is the basis of the household economy and one of the primary sources of cultural values and the transmission of religious ritual practices. In the Mishnaic constructed world, the family was conceptualized as the core institution of generational and social class reproduction, the basis of continuity of patriarchal authority, and the foundation of shared resources and values among kin. We explore Mishnaic conceptions of family and kinship relationships in unpacking how it constructs the society and community. We ask: How does the Mishnah imagine the formation and structure of families? Who are included in extended family (kin) relationships and what are kinship obligations and generational responsibilities? How are the family relationships of husbands and wives, parents and children, grandparents and grandchildren, aunts and uncles, cousins, in-laws, and stepfamilies delineated? What are the stages of the family life course contextualized in the Mishnah and how do these intersect with social and religious obligations? How does the Mishnah outline the transitions to adulthood, to marriage (the formation of new families), to parenting, and to dissolution (divorce and widowhood)? How is authority distributed within the family and what is the social location of persons who are not living in families? In short, we specify what social scientists refer to as the dynamics of family roles over the life course, broadly conceived, including the balance of productive roles of men and women in both the private and public spheres and those

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who are independent of family control (i.e., not tied to a farm or economic enterprise). And we infer some of the contours of generational continuity and changes from how the Mishnah constructs family relationships. These are critical and complex questions for the social science understanding of the Mishnah. As expected, the Mishnah treats family issues within a very broad set of topics but does not explicitly or directly address many of these specific family questions. We therefore review the Mishnaic conception of family issues based on discussions covered in several Mishnaic tractates, focusing (although not exclusively) on those in one of the six orders of the Mishnah titled Nashim (women).3 The primary focus within Nashim is on the relationship of women to men and to the household touching on many core family topics. Nevertheless, issues associated with family are included in all six divisions of the Mishnah. Family themes are ubiquitous in the society that the Mishnah constructs, particularly in regard to generational continuity, the formation of new families, and supportive relationships among kin and extended families. In turn, it is reasonable to assert that family matters are fundamental to Judaism that emerges in the Mishnah.4 Prior to outlining the Mishnaic conceptualization of these family themes, we sketch some methodological, conceptual, and contextual preliminaries: 1. I use only the direct evidence in the Mishnah texts and ignore in large part the subsequent Talmudic/Rabbinic elaboration of what the Mishnah means. This premise is based on the assumption that subsequent elaborations on the Mishnah inform us about Talmudic constructions of family processes more than Mishnaic perspectives. 3  There are seven tractates in Nashim, comprising 71 chapters. Unlike the other orders of the Mishnah, all tractates of Nashim have both the Bavli and Yerushalmi Talmudim attached to them underlining the centrality of family issues in Rabbinic discourse. I refer to each of the tractates by name followed by the chapter number and by the Mishnah number. Thus, Gittin 4, 1 is the fourth chapter and first Mishnah of the tractate Gittin dealing with divorce. 4  See, among others, Judith Wegner, Chattel or Person? The Status of Women in the Mishnah (New York: Oxford University Press, 1988); Michael Satlow, Jewish Marriage in Antiquity (Princeton: Princeton University Press, 2001); M.  Satlow, Tasting the Dish: Rabbinic Rhetorics of Sexuality (Brown Judaic Studies, Atlanta: Scholars Press, 1995); M. Friedman, Jewish Marriage in Palestine (New York: Jewish Theological Seminary, 1980); Shaye J. D. Cohen, editor, The Jewish Family in Antiquity (Brown Judaic Studies, Atlanta: Scholars Press, 1993).

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I treat the Mishnaic texts as complete without attention to some textual variants or to the elaborations in the Tosefta. 2. I also do not make comparisons to other developing family systems during that period or to the “reality” of family life in Mishnaic times inferred from other documents. I do not describe what actual family patterns characterized the Mishnaic community (although that would be instructive) and focus instead on the ways the Mishnah constructs, conceptualizes, and portrays what might be thought of as idealized versions of family patterns and processes (in the Weberian sense of “ideal types”). The discussion of family issues in the Mishnah likely reflects (to an unknown extent) actual family patterns of the several generations of those who composed the Mishnah and also affected the family processes in their communities. It is clear that the conception of family processes in the Mishnah did not occur in a social vacuum. 3. When I refer to the Mishnaic conception or construction of family processes, I do not imply that the Mishnah is a uniform, homogeneous document or that there is a singular view of family processes. There are conspicuous disagreements within the Mishnah itself about many family themes. Indeed, the diversity of views recorded in the Mishnah argues against defining a single perspective as “the view of the Mishnah.” The recorded disagreements of both major and minor opinions in the Mishnah directly imply that there was a range of legitimate and diverse images of family processes (some based on noted regional or social class variations). The Mishnah itself poses the question of why diverse opinions were recorded and suggests that it was primarily to establish precedents to be cited by future generations (Eduyot 1, 4–6). 4. While the Mishnah is often informed and constrained by biblical descriptions of specific family processes (the levirate obligations and the Sotah—adulterous woman—are obvious examples), discussions of the structure and functioning of the family as recorded in the Torah are not a simple prelude to how the Mishnah presents family processes. Only in part does the Mishnah elaborate on family processes in the Hebrew Bible. One would barely know the nature of the family as presented in the Mishnah by studying the Torah and vice versa. It is beyond the scope of this paper and my expertise to review the external historical and textual influences on the Mishnah.

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5. Another preliminary clarification relates to the distinction between families and households. Families involve relationships defined by “blood, marriage or adoption” but whose members do not necessarily co-reside; household members co-reside but are not necessarily related by “blood, marriage or adoption.” Families and households have variable compositions over the life course. At times the Mishnah only presents a cross-sectional (i.e., static) form of family patterns rather than a dynamic set of changes over the life course. We ought not to be distracted by the search for “one Mishnaic view” of a family pattern nor err in missing the inherent life course changes in family processes. In general, we are sensitive to core gender issues in the examination of family themes. Gender plays a significant role at all stages of the family life course in marriage and remarriage (e.g., boys-girls; husbands-wives; widows-­ widowers; and for brother/sister, father/mother, stepparent/ children economic obligations). Obviously the presentation of the evidence in the Mishnah is from the perspective of the rabbis in the Mishnah who are all male. Overall, women are defined as “guardians” of the household and in turn play a critical role in the regular performance of household tasks and some religious rituals. One obvious example is the household responsibility for the ritual of lighting Sabbath lights on Friday night that is assigned to women; men are enjoined to remind their wives to light (tractate Shabbat, 2, 6 and 2, 7). Beyond that regular religious role, women are often defined as the companions of men, so that men can carry out core religious rituals. One clear and broad example is the role of the wife of the Kohen Gadol, the high priest. On Yom Kippur, when priests carry out a complex set of Temple rituals, the high priest needed to be married since the biblical injunction refers to the need for him to pray for his “household” (Beito); to do so, the Mishnah explicitly equates the biblical reference to “household” with being married (Yoma 1, 1). Specific familial/household responsibilities of women are defined and presented as her obligations to her husband (Ketubot 5, 5).5 The role of women in 5  On the issue of households, see Haim Lapin, “The Construction of Households in the Mishnah.” In J. Neusner and A. Avery Peck, eds., The Mishnah: Contemporary Perspectives, Vol. 2 (Leiden: Brill, forthcoming), 55–80. Lapin’s review centers on the head of the household and changes in the composition of households. His comprehensive review essay closely foreshadows many of the arguments that I make in this paper as I focus on the family unit. Note that the word for family (mishpacha) is rarely used in all of the Mishnah. The broader

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families must be understood within the overall context of male authority and control. Women’s domestic roles in the private sphere are emphasized; women not carrying out domestic tasks have “idle hands” and are frowned upon even when there are many servants carrying out the domestic responsibilities of the household (Ketubot 5, 5). Thus, Hillel suggests that ruining the cooking of meals (her responsibility) is sufficient grounds for divorce (Gittin, 9, 10); according to one view, a husband who makes a commitment (neder) not to benefit from his wife’s work is required to give his wife a divorce and provide her with the value of her marriage contract (Ketubah) (Ketubot, 5, 5). Several specific features of family formation and marriage are assumed in the Mishnah. First, marriage (defined as Kiddushin) with more than one wife was acceptable.6 Second, the process of marriage involved two stages: stage 1 was Erusin, a pre-marriage form of engagement and commitment usually designed to prevent sexual access to all including the future husband; this stage functioned as the time before the marriage to begin the process of material exchanges between families (usually 12 months for a virgin bride and 30 days for a widow—Ketubot 5, 2). The second stage is actual marriage or Nisuin, announced publicly and established contractually between families, transitioning the woman from her parental (i.e., father’s) to her husband’s household (Ketubot 4, 5). There appears to be no context of independent living for women—a widow either returns to her father’s house or remains in her deceased husband’s house with her or his children—each of these contexts has accompanying financial implications for the support of the widow (Ketubot 12, 4). Divorce was an acceptable way to dissolve a marriage, changing the statuses of the husband and the wife, and was formally necessary to dissolve even Erusin. However, in the patriarchal world of the Mishnah, marriage required the consent of women (but not the betrothal of young girls living in their father’s household); in contrast, divorce could occur without the wife’s consent, but required the husband’s consent (Yevamot 14, 1). Except for the financial commitments outlined in the Ketubah that were critical for resources assigned to the wife, the grounds for divorce term used is Beit Av or patriarchal household or kinship group. We review below the consequences of the failure of women to carry out their domestic “obligations” and their interactions in the public sphere—particularly the role the latter plays in the Sotah accusations. 6  We do not know how extensive polygamy was, but given demographic constraints in the marriage market and the costs of maintaining the children of several wives, polygamy likely involved a relatively small proportion of marriages and may have been limited to the wealthy.

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noted below seem to border on the trivial and are subjective (Gittin 9, 10). Divorce could be initiated by young women who had been married off in early childhood without their consent. There are some minority opinions that under unusual circumstances women could initiate divorce proceedings against their husbands or annul the marriage (Ketubot 7, 9–10). To protect the more vulnerable dependent economic position of women in the community and forestall their abuse and exploitation, marriage involved a written contract (Ketubah) that specified an amount of money that the wife would receive on the dissolution of the marriage through the death of the husband or divorce. The minimum amount specified in the Ketubah depended on the previous marital history of the woman (a virgin, widow, or divorcee) and status in the community (e.g., the daughter of a priest) (Kiddushin 1, 1). A daughter of a Kohen gets twice the amount as a virgin Israelite; widows and divorcees have half the amount of a virgin (Ketubot 1, 2). Marriage or the acquisition of a woman occurs through monetary exchanges, a written contract, or sexual intercourse. Except in unusual circumstances, God, the court, or anyone other than the father or future husband has no known direct role; the woman is acquired and must be married willingly. She acquires her independence (economic but usually not residential) with a divorce document or the death of her spouse (both passive on her part) (Kiddushin 1, 1). Although many of the mishnayot in the tractate Kiddushin use variants of the word “mekadesh” (holy) to indicate marriage (Kiddushin 2, 1), most of the Mishnah text deals with secular issues of administrative and economic exchanges. The Ketubah may be viewed as a deterrent to casual divorce and mainly functioned as a protection for the wife when she was financially vulnerable and no longer supported in her husband’s household. Even when there was no formal marriage contract (e.g., the Ketubah had been lost or never written), the court (Beit Din) substituted for the husband in preparing such a document to protect the interests of the wife and would adjudicate the amount to be paid (Ketubot 2, 1; 4, 7). Since marriage was viewed as a financial contract, its dissolution (through divorce or annulment) at times was viewed as a “mekah ta’ut”— a business arrangement that was made in error (Ketubot 1, 6; 7, 8). Divorce in turn also required a document or Get7 to free the woman to 7  The term “Get” is used in the Mishnah to designate a divorce document as well as a general business contract.

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remarry (men, of course, could marry another woman without a divorce document in the societal context allowing multiple wives). These family transitions were formulated with explicit variation by the age and previous marital history of women, and differed for men and women (Ketubot 1, 2). The major social class variation in these family transitions characterized the upper caste/class (members of the priestly family) who also had ­additional restrictions who they could marry and were required to provide the woman with a higher amount of compensation in their Ketubah (Ketubot 1, 5).

Family Formation: Marriage and Kiddushin The basic Mishnaic conception of family formation focuses on several interrelated themes: the timing of marriage, who may marry whom (intermarriage and the community integration of the offspring of intermarriages), and the role of choice in marital selection. We will also review questions revolving around the economic relationships to wives and extended kin, the value of childbearing, the economic relationships to children, and the consequences of marital dissolution. As we noted, the world of the Mishnah was patriarchal (in the sense of male authority and control), the family was central to social life, and there was a positive value placed on procreation for generational continuity. In this context, it is not surprising that men were likely to be in economic and social control of women (their wives and daughters), that families were formed early in the life course (sometimes not in consultation with the girl/woman), women moved from the control of their fathers to the control of their husbands (almost never living independently even after marital dissolution) and there was an emphasis on reproduction in the family. While these family processes were the outcome of the type of community that the Mishnah constructed (and characterized most other communities until the most recent historical period), several interesting and unexpected family patterns emerge. There are exceptional contexts where the autonomy of women rather than their subservience is stressed in the Mishnah. The assertive and independent behavior of women is often noted (e.g., married women involved in social interaction with men in the market place despite the prohibition) but rarely presented positively. Second, child marriages among girls are noted (organized by the father or in his absence by the mother and/or siblings) but then the type of marriage that ensues is different from

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marriages between consenting adults (e.g., on attaining the age of adulthood the child bride can initiate a divorce/annulment and no Ketubah is written). The response of girls and women in general is presented as passive. While children are highly valued (especially boys), we note below that the number of children required to fulfill the biblical injunction to “be fruitful and multiply” is not especially large. Biblical restrictions on marriages between the highest caste (priests) and selected others are reinforced. Nevertheless, the Mishnah notes directly that intermarriages between those of the priestly class and non-priests occur as are some types of marriages between Jews and born non-Jews—outsiders (Kiddushin 4, 1ff). In addition to the implications of these intermarriages for extended family relationships, there was the potential for generational changes in the ethnic/religious and social class composition of the community, openness in the caste system, and the inclusion of others in the community through marriage. All these options were built into the Mishnaic system of marital selection. The ideal of sexual activity is viewed as occurring within marriage (Kiddushin) and prohibited both during the pre-Erusin period and between the two components of marriage, Erusin and Nisuin. The Mishnah recognizes that there were communities (and not necessarily marginal ones) where some form of “living together” or cohabitation after Erusin and before formal marriage (perhaps as one of the paths to marriage) was normative and not condemned (Ketubot 1, 5). These sexual activities could be viewed as evidence of alternative paths to marriage. In general, the period after Erusin places the woman in her father’s house waiting for marriage (Nisuin) to transfer to her husband’s house. During this period, no sexual intercourse is permitted. A man who is betrothed (in the status of Erusin) who has taken up residence in his betrothed father’s house (e.g., a practice in the “Judah” region of the Land of Israel) cannot claim that his betrothed is not a virgin since he is cohabiting with her. This suggests that some form of premarital cohabitation must have been acceptable in some places (Ketubot 1, 5). Special attention was paid to the violation of the marriage contract through adultery, although primarily by way of the suspicions of the husband. The communal penalty for suspicions of adultery is high for women but less for men. Sexual intercourse is one form of establishing Kiddushin (bypassing the constraints of Erusin). Sexual intercourse is described among minors and between minors and adults, largely based on the assumption that sexual activity of minors (boys and girls) does not

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constitute “real” or normal sexual intercourse (Sotah 4, 4; Yevamot, chapter 13). One overriding feature of marriage described in the Mishnah is that marital choices are not fated and marriages are not “made in heaven.” Indeed, God hardly appears at all in the Mishnaic discussions of marriage, marital choices, and the family. An emphasis on marriage as sacred, defined as Kiddushin (holiness) and elaborated on in the tractate of that title, has often been misleading socially, although of core theological significance. The fundamental discussion in the Mishnah is family formation, marriage, and its dissolution for social, economic, and personal reasons. Marriage is contracted in ways similar to other formal contractual exchanges and business relations between people or families. Marriage seems to be organized by families, mostly with the consent of the couple. Perhaps the Mishnah assumes that specific marriages are “fated” and ordained by heaven but that view does not emerge from the text itself. More likely marriage and family formation were too important to be left to the unknowns of the heavens except in retrospect. The inference from the overall portrait of marriage/family formation emergent from the Mishnah is that marriage was a contract between families and recognized publicly. Even if arranged by families, marriage involved conscious intent and consensus of both men and women. Minors (and some others with physical disabilities) were assumed not to have the “maturity” required for intention and hence their marriages were treated differently (Yevamot, chapters 13 and 14).

Yebom, Generational Continuity, and Kinship Relationships An important family theme relates to extended family relationships and kinship obligations. Concern about kinship obligations and the importance of generational continuity in the family (in the sense of reproduction and children) may be observed in the processes associated with Yebom, the levirate. The levirate obligation is specified in the biblical text (Deuteronomy 25, 5–10) and its basic form is as follows: When a married man dies and his widow is childless, the brother of the deceased has an obligation to marry his widowed sister-in-law and continue his deceased brother’s family line, raising the first born child with the name of his deceased brother. If the brother does not want to carry out his levirate responsibility or cannot (e.g., the surviving brother’s spouse is related to

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his widowed sister-in-law), there is a public ritual to announce that he is not carrying out his levirate obligation (Halitzah). Prior to the death of the brother, sexual access to the sister-in-law is prohibited in the Torah. After the brother’s death, Yebom overrides the biblical injunction. The Mishnah is largely silent about the role or actions, if any, of the widowed woman. The following key aspects of the levirate appear in the Mishnah8: (1) Reproducing the family line is of paramount importance in Yebom. Both the brother and the widowed sister-in-law have to have the potential for reproduction (if not, there is no obligation of Yebom). (2) Reflecting kinship continuity associated with males, the obligation is only for the brother from the same father as the deceased but not for the half-brother, that is, sharing only the same mother. Similarly, there is no Yebom or Halitzah for converts since converts are defined as not sharing the same father (Yevamot 11, 3). (3) There is no Yebom if the widow has a son or a daughter and even a grandchild. This provision also reinforces the procreation function of Yebom in terms of inheritance and preserving the male line. (4) In the case of multiple wives, Yebom is required only with one wife; there is no Yebom or Halitzah for the other wives. Again, the goal is kinship continuity rather than the “replacement” of the deceased. Women who are presumed infertile exempt the brother of the deceased from Yebom and Halitzah (Yevamot 1, 1) reinforcing the core function of Yebom—preserving the male line and reproduction as part of the extended family/kinship group. There is a clear inference from the Mishnah that in contrast to marriage in general, the only way to consummate a marriage with the widow of the deceased brother is through sexual intercourse rather than by exchanging money or by contract (Yevamot, chapter 6). The Mishnah is clear that unlike in other marriages, intention plays no role in Yebom: So powerful is the injunction of the levirate and its reproductive function, whether the sex occurs intentionally or for other reasons, on his or on her initiative, whether he completes the intercourse or not, whether by “regular” normal intercourse or not, she becomes his wife and would require a Get to dissolve the relationship (Yevamot 6, 1). The Mishnah points directly to the conclusion that a man who cannot have children 8  The details are outlined in the 16 chapters and 123 mishnayot of the tractate of Yevamot. This is an extensive presentation and is indeed longer than any other tractate in the order of Nashim. In contrast, the tractate Kiddushin that focuses directly on marriage is the shortest in the Nashim division, containing only 4 chapters and 47 mishnayot.

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(either sterile from birth or due to an accident) is exempt from Yebom and the Halitzah ritual (Yevamot 8, 4). Clearly the key function of the levirate is kinship continuity through reproduction. Despite the extensive discussion of the obligation of Yebom, a Mishnah in the division of Holiness—Kodashim—notes without much discussion that the mitzvah (religious obligation) of Halitzah takes priority over the mitzvah of Yebom: “Originally, the mitzvah of Yebom had priority over the mitzvah of Halitzah since the intention involved a mitzvah; now, when the intention is not for the purpose of mitzvah, Halitzah has priority over the mitzvah of Yebom” (Bekhorot 1, 7). This statement suggests that the value of the levirate may have been changing and perhaps was in decline and/or the social context changed and context shaped the adherence to Yebom. For whatever reason, this Mishnah suggests that the details in the mishnayot on Yebom were mostly theoretical or academic. Extended family relationships and obligations beyond the specifics of the levirate focus on the categories of kinship relationships when women are exempt from Yebom and/or Halitzah. From this list we can deduce the definition of “close” extended relatives (from the man’s point of view): Daughter; daughter’s daughter and son’s daughter, (grand-daughters); stepdaughter, and the daughter of his wife’s son and the daughter of his wife’s daughter (stepgranddaughter); mother in law and his mother-in-law’s mother; his father-in-law’s mother; his maternal stepsister and his mother’s sister; his wife’s sister (his sister-in-law); and his maternal brother’s wife; his sister in law and daughter in law…. (Yevamot 1, 1)

These extended relations become more complicated with second and third wives or with divorces, remarriages, and deaths. Other closer relations are listed: “…his mother; his stepmother; his father’s sister and his stepsister from his father; his aunt (wife of his father’s brother); and his sister-in-law (the wife of his half brother)” (Yevamot 1, 3). As in many other cultures, there are no specific words for many of these extended family members, so the Mishnah spells out the relationship in detail (e.g., the daughter of his wife’s son—i.e., stepgranddaughter). From the above two lists it becomes clear that the issues of marriage and responsibility for Yebom or Halitzah are not based on simple biological relationships (especially for the co-wife) but are socially defined “kinship” relationships. These extended relatives and their “closeness” in familial relationships (and thus as a basis for prohibited marriages) include horizontal

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relationships (e.g., sisters and sisters-in-law) as well as vertical or generational relationships (e.g., mothers, aunts, and granddaughters) and several “step” relationships. There are paternal and maternal kinship relationships and those that are a function of spousal relationships (in-laws). They do not include first cousins or several stepcousin relationships. It is not clear from the Mishnaic text the basis for defining “close” relatives. Many are also relationships associated with rules of inheritance and that are unacceptable for witnessing or for judging (cf. Sanhedrin, chapters 3 and 7, 4; 9, 1; Bava Batra, chapters 8 and 9). Undoubtedly, these kinship rules were influenced by the (Jewish and non-Jewish) norms of the communities where Jews resided.

Reproduction The importance of reproduction in families and the value of procreation for the community are noted in several different Mishnaic contexts, with attention to biblical proof texts, beyond Yebom. The Mishnah poses the question, how many children should a married couple have to fulfill the biblical injunction of “be fruitful and multiply” (Genesis 1:28): A man does not fulfill his obligation to have children until he has sons. Bet Shamai says two boys; Bet Hillel says a boy and a girl… a man is obligated to carry out the biblical injunction (mitzvah) of ‘be fruitful and multiply’ but not the woman. Rabbi Yohanan ben Berokah says: both (men and women) are obligated since the verse says ‘and God blessed them and said to them ‘be fruitful and multiply’ (Yevamot 6. 6).

Note that the Mishnah does not enjoin married couples to have an unspecified “maximum” number of children or the number that God provides. The Mishnaic case for having children is less an issue of actual numbers of children than of reproductive norms (ideal family size). Further reinforcing the norms of childbearing, the Mishnah notes that an ordinary Kohen should not marry a woman who cannot bear children unless he already has a wife and children. Rabbi Yehudah says even if he has another wife and children he should not marry a woman who cannot have children (Yevamot 6, 5). Even more explicit for all persons, the Mishnah states: “The world was created only for reproducing humanity” not for chaos and emptiness (citing Isaiah 45–18: “God created [the earth] not a waste; God formed it to be inhabited”). Thus, a slave who is only half free cannot

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marry a slave girl since he is half free and cannot marry a free woman for he is half slave. A slave that is partially owned should be freed “Mepnei Tikkun Olam”—for the good order of the world—so that childbearing through marriage takes place (Gittin 4, 5; also in Eduyot 1, 13). Indirectly the Mishnah suggests that a man may divorce his wife because she cannot (or has not) bore children (Gittin 4, 8). The obligation to have children is thus put in the context of both an individual mitzvah and a collective responsibility. Clearly children are critical for the generational survival of the community, the continuity of families and traditions, and to fulfill the commandment of childbearing. Combined, the power of peer pressure to have children is likely to have been high.

Intermarriage and Marriage Regulations Concern over intermarriage is primarily but not exclusively between Jews of different social classes or statuses (e.g., Kohen and Israelite; Netin and Mamzer).9 Cases of marriage between Jews and non-Jews are noted in the Mishnah often in the context of preventing paganism from entering the community. Clearly there was not total acceptance of some of these marriages because of biblical and normative rejections but that did not necessarily mean that these intermarriages did not take place. There is little outright condemnation of such intermarriages. The major issue seems to be the status of the children and the rights of women to the resources of the husband. So instead of a discussion that involves strong negative sanctions, there is a concerted attempt in the Mishnah to include the intermarried couple and their offspring within the community (Kiddushin chapter 4). There are biblical prohibitions of marriage between Jews and specific ethnic others. The prohibition for women to marry males of some ethnic groups is unlimited (the peoples defined as Ammonite and Moabite) while there are no prohibitions for Jewish males to marry Ammonite and Moabite women. The prohibition to marry Egyptian and Ammonite men and women is limited to three generations (although there is a minor opinion that permits the marriage to their women without waiting for three 9  For some definitions and attention to stratification, see Calvin Goldscheider, “Inequality, Stratification, and Exclusion in the Mishnah: An Exploratory Social Science Analysis” in Jeffrey Stackert, Barbara Porter, and David Wright (eds.) Gazing on the Deep: Ancient Near Eastern and Other Studies in Honor of Tzvi Abusch (Bethesda, MD: CDL Press, 2010), 565–584.

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generations) (Yevamot 8, 3).10 Almost without exception, the Mishnah treats these intermarriages as given and focuses instead on the implications of violating the intermarriage rules in terms of the avoidance of paganism, the status of children, and the inclusion of the “other” within the community. Focusing questions on the generational consequences suggests that patterns of inter-caste and intergroup marriages were not uncommon. There are restrictions on intermarriages between priests and others largely to preserve/control the integrity of caste purity. The Mishnah makes several distinctions between the wife of a priest who is of Israelite origin (obviously a Kohen’s wife does not have to be a daughter of a Kohen) and a daughter of a Kohen who marries a man of Israelite origin. The bottom line: A Kohen remains of the Kohen caste forever, regardless of whom he marries. A priest who violates a marriage rule can return to all the privileges of being a Kohen after he divorces his non-priest origin wife or after his wife dies (Sotah 3, 7). There is a list of Torah-based marital restrictions: a high priest (Kohen Gadol) cannot marry a widow (either from Erusin or from Nisuin) or, according to one opinion, a virgin who is older than 12 years and 6 months (a bogeret) or a woman who has lost her virginity through some physical blow (Yevamot 6, 4). These restrictions apply to one person (and not an entire ethnic group) and to a status that was no longer real in the period of the Mishnah’s redaction. A regular priest who was engaged to a widow (an acceptable relationship) and then was appointed to the position of high priest before the marriage was consummated is allowed to remain married to the widow. A high priest whose brother died performs Halitzah and not Yebom (since he cannot marry a widow and hence cannot perform the Yebom with the widow of his brother). There appear to be no restrictions on priests marrying non-priests of Israelite origin or for the daughter of priests marrying an Israelite man (Yevamot 9, 4–6). These inter-caste marriages over time would alter the composition of the priest caste of the community and as far as can be discerned from the Mishnah were not viewed negatively. In turn, marriages across caste lines solved problems of the limitations and constraints of caste restrictive marriage markets (and imbalances in the sex ratio among potential eligible partners). Although in formal violation of marriage restrictions, the Mishnah poses the question whether a wife shares in the resources of the Kohen 10  The reference is to Deuteronomy 23, 4. Three generations imply the grandchildren of the prohibited union.

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when a high priest marries a widow or a regular priest marries a divorced or a halitzahed woman. Obviously, the Mishnah recognizes that these “restricted” or forbidden marriages might have taken place. The question of the rights of an Israelite woman marrying a priest and a priest’s daughter marrying an Israelite man is also raised—the former eats “trumah” (i.e., is sustained from the resources available to the priest), the latter does not. Further, the question is raised whether an Israelite woman who marries a priest and he dies but she is pregnant from him eats trumah even if her child would have been eligible to eat trumah (Yevamot 7, 3). Again, these details suggest that such inter-caste marriages may have taken place or at least were viewed as acceptable in the community that the Mishnah constructs.11 If a woman married her brother-in-law upon learning that both her son and her husband died, depending on who died first and whether a child remained after the husband’s death (thus requiring Halitzah not Yebom) or the son died first and requiring Yebom—the status of the child and the marriage to the brother of the deceased is questioned (Yevamot 10, 3). Particularly important is the avoidance of the child defined as a mamzer.12 There is a dispute whether to include the child of an adulterous relationship within the community and whether to include a wider variety of children from prohibited relationships and those who the Torah prohibits to marry (e.g., marriage to a stepparent). The issue of a woman who has been mistakenly reported as missing at sea and a marriage occurs to her sister, the husband can also remarry the returning wife and is permitted to marry secondary relatives of the sister and the sister can marry his secondary kin (Yevamot 10, 4). These possibilities suggest two things: First inter-caste and inter-­ religious marriages were anticipated in the community imagined by the Mishnah. While some were formally prohibited, the Mishnah does not present them as violations of norms or of stronger prohibitions. Second, there is an attempt partially not to penalize the children of prohibited marriages between those external to the community (e.g., Netin, servants, orphans, foundlings) from full participation in the community (notice the 11  Alternatively, but less convincingly, these may be viewed as purely theoretical concerns, not reflecting any reality in Mishnaic times. 12  Mamzer is often translated as bastard or the child of an illicit relationship defined in the Mishnah (Yevamot 4, 13) where there is an explicit biblical prohibition excluding the child from the community.

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word importance of Kahal—community—in Kiddushin 4, 3). It is remarkable that the issue of continuity of the upper caste and of the Jewish people does not seem to be raised in the context of intermarriage. Intermarriages were not viewed as a threat to the continuity of families or of the community because of either their rarity or a general high level of tolerance of inter-caste marriages. The Mishnah does not concern itself with other inter-class marriages or with inter-tribal marriages. There are few restrictions or norms about the timing or the ages of marriage either among men or women. There appear to be several considerations of sexual activity (and thereby some form of the beginnings of marriage) of boys the age of nine years and a day and among girls three years and a day. There is, however, no general consensus on the maturity of these girls and boys (Yevamot 10, 8–9) and their ability to fulfill the obligation of marriage or Yebom. There are several indirect indications of very early marriage age among boys/men and girls/women but they appear to be exceptional and rare. After a detailed examination of the timing of marriage as documented indirectly in the Mishnah, some have speculated that men likely married at the end of their 20s and early 30s. On social and demographic grounds, the issue is important since questions of residential independence, marital choices versus arranged marriage, and economic autonomy are connected to the age of marriage, as are relationships between husbands and wives, parents, and children.13 A daughter less than 12 years and a day who has been betrothed by her parent has the power to leave the arranged marriage without a divorce; she may not be eligible for Yebom and may not need a Beit Din (court) to reject her husband until she is 12 years and a day and brings evidence of physical maturity. She may refuse to continue to live with her husband and may leave him without a Get; the court can provide her with a document (not necessarily a Get but an annulment) attesting to her status (Moed Qatan 3, 3; Yevamot 13, 1). There is a statement that “Israelite girls are not hefker” (ownerless property) that can be transferred casually from one person to another. Directly, the Mishnah notes that marrying a minor off without her consent provides her with the option of leaving the relationship without a formal act of refusal (Yevamot 13, 2). A tinoket (between 13  See the comprehensive review by Adiel Schremer, “Men’s Age at Marriage in Jewish Palestine in the Second Temple Period, Mishnah and Talmud,” Tzion volume 61, 1995/96, pp. 51–64 (Hebrew). The suggestion in Mishnah Avot (5, 25) of an ideal marriage age of 18 for young men is likely to be an ideal only for the elite.

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6 and 10 years of age) does not have to formally refuse an arranged marriage—Mamaen. One opinion is that the act of a young minor means nothing; she is like one who is seduced. It seems that the minor is not really his wife; if she refuses, she can marry his relatives and he hers (Yevamot 13, 4). But if he gives her a Get (a sign that a marriage legitimately took place), she cannot marry his relatives or he her relatives. Lineage and status usually follow the father when the marriage is legitimate. However, if the marriage is not legitimate (like a widow who marries a priest), the status of the child follows the lower status in the relationship (i.e., the mother) (Kiddushin 3, 12). There are a series of mishnayot that outline the men and women who are eligible to marry among priests, Israelites, freed servants, converts, Mamzerim, and others (Kiddushin 4, 6–7).

Age Variation for Defining Girls (Women) In the transition to adulthood, girls/women are classified by chronological age. A “naarah” is 12 years and a day; when she is 6 months older, she is a bogeret. Other bases of classification include a Netin girl largely on the basis of ethnic origin (see Yevamot 2, 4), a Kutit (Samarian), a convert, a girl taken captive, and a slave girl (Ketubot, chapter 3). There are three ages where seduction of a girl and fines vary: ketanah (less than 12 years; her father can sell her and there is no fine for rape or seduction); naarah after 12 years and a day (there is a fine but her father cannot sell her); and after 12 years and 6 months she is a bogeret (no fine and no right of the father to sell her) (Ketubot 3, 8). A naarah who is seduced receives the imposed fine; monies for shame, damage, and pain go to her father. If she goes to court to collect before her father dies the monies and fines all belong to her father; when the father dies, they belong to her brothers (as inheritance from the father). But if she did not go to court until her father died, these funds belong to her. If she went to court before she became a bogeret, the monies are hers. This is unlike the monies derived from the work that she did while still in her father’s house or anything that she found that all belongs to her father, even if she had not yet received wages (Ketubot 4, 1). The Mishnah in general defines three times of maturity for a girl— childhood, young adulthood, and maturity (Niddah 5, 7). Similarly, the signs of transition from impurity are all physiological (Niddah 5, 7). A 20-year-old female who has not matured physically (does not have the

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signs of maturity—two pubic hairs) is defined as not fecund and cannot be part of the levirate; a 20-year-old male without signs of maturity also cannot be part of the levirate. Both remain so until age 35 (Niddah 5, 9).14 There are transitions of women from the control of their father to that of their husbands (Ketubot 4, 5; 4, 6). A betrothed daughter (of 12.5 years) remains under the control of her father who has the product of her labor/ property and can nullify her vows, and receives her divorce but does not dispose of property that she received from inheriting her maternal grandfather. However, when she marries these “rights” shift to the husband who is required to support her and to redeem her from captivity and is responsible to bury her. The transfer is post-Erusin and only then does the husband take on these responsibilities. The husband cannot say to his wife “redeem yourself” when he was divorcing her, but he can say to his wife, I am divorcing you; here is your Ketubah money, “heal yourself.” He cannot say this when still married to her (Ketubot 4, 9). The requirement to support a widow is also a requirement of the court even without explicit statements in the Ketubah. There are regional variations: both in Jerusalem and in the Galil areas they wrote this statement explicitly in the contract; in Judah the power is in the hands of the inheriting sons who can pay her Ketubah and not be required to support their widowed mother (Ketubot 4, 12). Again, some regional-based variations in the resources available to widows are viewed as legitimate by the Mishnah and likely were informed by local custom. The standard time between Erusin and Nisuin is 12 months to allow for preparation for the virgin bride and her fiancé (and one month for a widow); they support themselves. If time passes and the groom does not marry her, he begins to be required to support her. If the groom dies during the period before Nisuin and after Erusin, the levir is not yet obligated to support her until he marries her (Yevamot 5, 2; 7, 4).

14  There is another set of calculations about the ages of women that are not chronological. The Mishnah defines “virgin” (first time menstruate, even if she was married); pregnant woman (when recognized as pregnant—Gemara notes that this is 3 months); nursing women (when she finishes nursing—24 months); old woman (when three periods of time pass without menstruating—the Gemara elaborates that it means someone who is defined by others as an old woman or who call her “Emah”) (Niddah 1, 4; 1, 5). It is important to recognize the explicit subjective component of this classification.

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Marital Obligations and Rights A brief review of marital rights and obligations provides insight into the Mishnaic perspective of the relationship between women and men and sheds light on family values. We start with the Mishnaic view of the obligations of wives to their husbands. A wife is required to work for the household (i.e., for the husband): she is in charge of the domestic economy. Given the economy characteristic of the Mishnah, she is obligated to grind flour, bake bread, do the laundry, prepare meals, nurse her child, make the bed, and work in wool. Some say that no matter how many maids/assistants are brought in the household to carry out these tasks, she does the wool since not doing anything leads to the lack of chastity (“zemah”). Rabbi Shimon ben Gamliel says that if someone takes a vow not to benefit from anything that his wife does, he has to give her a divorce document (Get) and the value of her Ketubah since “idleness brings boredom” (Ketubot 5, 5). Another woman’s obligation to her husband is to have sexual relations. If a woman rebels against her husband by denying him sexual access, the husband can deduct from her Ketubah seven dinars a week (some say half that amount) until the amount of the Ketubah ends and then he divorces her without a Get (Ketubot 5, 7). Others say that he can continue to deduct from property that may accrue to her from inheritance. On the other side of the relationship, if a man rebels from his wife and denies her sexual access, he is required to add to her Ketubah three dinars a week (less than what her husband can deduct from the amount if she denies him; some say half that amount). If the husband supports his wife through a third party (her husband does not share meals with her), the Mishnah lists the minimum foodstuffs that he must provide her and clothing (including a kappa for her head). He also provides her some money; if not, the results of her work remain hers. She eats with him on Friday nights. The amount listed is a minimum (Ketubot 5, 8; cf. 4, 4). The primary rights of the husband to his wife’s earnings include what the wife finds and the product of her labor, her inheritance after her marriage (he has the returns) (Ketubot 6, 1). If she was hurt, her shame and payment belong to her (by inference payment for injury itself and healing time belong to the husband). If the wound is hidden, she gets two-thirds, the husband one-third of the damage. But if the injury is conspicuous, he gets two-thirds and she gets one-third (the assumption is that the conspicuous wound is more embarrassing for the husband). He receives his

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share immediately; his wife gets hers in property of which the husband takes the returns. If the father agrees to pay his son-in-law a dowry for his daughter and the son-in-law dies before the dowry is completely paid, the father can claim he was willing to pay the dowry to her husband but not to his brothers (the levir) (Ketubot 6, 2). Some argue that if the father does not complete the payment, the fiancé can say either pay or she will sit in her father’s house “until her hair turns white” (Ketubot 13, 5). Some view these exchanges as imbalances in favor of the husband; others view these in context of attention to the vulnerable position women face in a marital/family setting. Both views are consistent with the broader context of the Mishnah. Other family support systems are in place. The father is obligated to provide nice things for his daughter so that she is attractive to marry (Ketubot 6, 2). If the father fails to provide for her, the fiancé should provide for her even before the wedding (and he cannot say he is only obligated to provide for her after they are married) (Ketubot 6, 5). The public fund provides the minimum for the marriage of an orphan, and if there is enough, she should receive “L’fi Kevodah” according to her status (Ketubot 6, 5). A fatherless orphan (minor) receives from her brothers and her mother a dowry that is at least the minimum amount and, when she gets older, an amount that is appropriate. The younger daughter also gets what her sister received. Since the fortunes of people may change, what one gives the younger daughter should be a function of the property (or the resources) that the inheritors have at the time of her betrothal (Ketubot 6, 6). If a trust was set up for an orphan daughter, she can say she trusts her husband and the trust can be transferred to the husband. If the trust is a field, it is sold immediately if she agrees. But if she is a minor, her opinion is not considered. If a man vows that his wife should not have any benefits from his property for a period of 30 days, he arranges for her to be supported, but after that he has to divorce her and give her the value of her Ketubah. An Israelite has one month, but in the second month he has to give her a Get and pay her Ketubah; if he is a Kohen he has a second month to support her and after that he gives her a Get (Ketubot 7, 1). The same structure (differentiating a priest from an Israelite and paying her Ketubah) applies for other vows that he takes that involve restrictions on the wife (Ketubot 7, 2; 7, 3) including an oath for her not to use jewelry. There are other social class variants: if he does not set a specific time for a poor wife, he divorces her and gives her the value of her Ketubah; for a wealthy woman

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he waits up to 30 days. A husband who vows that his wife does not go to a house of mourning or to a party (control over her social intercourse and enforcing her isolation), he has to divorce her and give her the value of her Ketubah. If he suggests that there is some justification, he can impose such a vow as long as it is not trivial (Ketubot 7, 5). When there is deception and therefore no trust between partners, there is no marriage. Deception is defined when the woman says she has no vows pending at the time of her marriage but she does (and the vows are offensive to the husband); if he married her and he discovers some commitments that are offensive to him, he can divorce her without a Ketubah; if he finds she has blemishes after she made a vow that she none, the marriage is annulled because she was deceptive and she is divorced without a Ketubah. If she has blemishes while living in her father’s house before the marriage, the father has to bring evidence that the blemishes occurred after the engagement and then there is no contract. If the blemishes were in a private place on her body, he is likely to have found out from her friends who bathe with her. How about the husband’s blemishes? If he had them after the wedding, he cannot be forced to divorce her. Rabbi Shimon adds that that is only for small blemishes but for large blemishes he can be forced to divorce her. There is a list of the types of male blemishes most are associated with types of work and the offensive odors associated with his occupation. Even if these blemishes were before marriage, she can claim that she thought she could tolerate them but she cannot now after marriage. Others say that this applies only to boils she would rub them when having sex and because it is “infectious” she is divorced even against her will (Ketubot 7, 7–7, 10). These mishnayot demonstrate the various ways the woman loses independence and the stages of the formal relationship with the husband. It also points to conditions where the woman or court forces the husband to give a divorce. A woman can sell or give away property acquired through inheritance or in receiving a present in the period before Erusin; once she is “engaged,” some say she can sell and others say she cannot; if she sells, all agree that the transaction is valid. Once she is married if she sells, the husband can remove them from the buyer. If the property came to her before the marriage but she sold them after the Nisuin, then the transaction is valid. (The issue is the produce of the property, not the property itself which the husband has no rights to until she dies.) In the Mishnah there are several economic transitions discussed and the acquisition of property timed before and after Erusin, until Nisuin; the question is raised of the ways in

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which the husband can use the property (or the produce from the property) or whether the woman has independent control over the property (Ketubot, chapter 8). Some argue that she cannot sell property the husband knew about; if she sells, the transaction is invalid; if the property is not known to the husband, she also cannot sell but if she does the sale is valid (Ketubot 8, 2). A husband who writes that he does want to have any benefit from his wife’s property allowing his wife to dispose of her property would still inherit her property if she retains it since that rule is a Torah-based law and he cannot make any statement that violates his rights (Ketubot 9, 1). How does a widow collect her Ketubah when her husband dies? Does she obtain the money from his inheritors or for the creditors and does she make any statement that she has not taken money from other property? The discussion in the Mishnah suggests some relationship between the wife and his inheritors. The woman is in a weak position when there is a contested arrangement between the husband and the wife in a case of a missing Ketubah or Get. Rabbi Shimon ben Gamliel says that when the Romans prohibited the retention of divorce and Ketubah papers, a woman can claim her Ketubah without a Get (Ketubot 9, 9). The Ketubah of a boy (katan) who is married off by his father is valid even after he reaches maturity. A marriage Ketubah of a man who converted to Judaism (along with his wife) even written when he was not Jewish is valid (Ketubot 9, 9).

Rights of Widows and Stepchildren/Stepparents Who supports a widow and from what property? The widow is supported by the property of the orphans that they received on inheritance (as is written in her Ketubah) and her labors belong to them. Only her children are required to bury her and not the sons of the deceased who are not hers and only those who would inherit her Ketubah (Ketubot, chapter 11). A widow is allowed to sell off property in order to support herself or to obtain her Ketubah and she does not need a court to do so (Ketubot 11, 2). (Some argue that only a widow from Nisuin and not from Erusin can sell without a court since a widow from Erusin is not eligible to be supported and only gets her Ketubah). There is a list of those who do not have a Ketubah and some marginal women who have a Ketubah: A girl (orphaned from her father but betrothed by her mother or her brother) can leave the arranged marriage by rejecting her husband and without a Get (Ketubot 11, 6; Yevamot 13,

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1–2). The following have a Ketubah: a widow married to a high priest, a divorcee and a halitzahed woman married to an ordinary priest, a mamzeret and Netinah married to an Israelite, or an Israelite daughter marrying a Netin or a mamzer. What are the responsibilities of a stepchild to the daughter of his wife (his stepsibling)? If the woman arranged with him to support her daughter for five years, he is so obligated. If the stepdaughter marries, she receives support from her husband and her stepfather continues to fulfill his obligation for the amount of time specified (or the equivalence in money) (Ketubot 12, 1). Some would write a condition that the husband will support the stepdaughter as long as he is married to her mother but if they divorced or she died, he is no longer obligated (Ketubot 12, 2). A widow who is supported by the heirs of her deceased husband may demand to remain in her deceased husband’s home and be supported by his heirs. They cannot evict her and the inheritors must give her a respectable dwelling. If she claims that she wants to return to her father’s house since the heirs are young and it would be inappropriate for her to remain in the house with them, they are obligated to support her in her father’s house (Ketubot 12, 3). If the widow is in her father’s house, she can demand her Ketubah whenever she wants to; if she remains in her deceased husband’s house, she can demand her Ketubah up to 25  years. There is a dispute whether she can demand her Ketubah at any time even if she is in her father’s house (Ketubot 12, 4) and her heirs can collect their mother’s Ketubah after she dies (for up to 25  years). This seems to be a serious protection of the widow’s interest and the long-term obligation of the heirs to support her. The Mishnah notes that in the court of Admon a series of seven cases were recorded: One case indicates that someone died and left sons and daughters (Ketubot 4, 11). If there is sufficient property the sons inherit and the daughters are provided maintenance. With a small amount of property, the daughters are supported and the sons have to go out begging. Admon responds, “because I am a male I should suffer?” Raban Gamliel supports Admon’s position (Ketubot 13, 3). Another Mishnah repeats a case where the father promises money for a dowry to his son-in-­ law and is unable to pay. The bride should stay in her father’s house until her hair turns white until the father pays. Admon says that she can claim as follows: If I owe you this then I can understand my fate is to wait until my hair gets white but if my father failed to pay, either marry me or give me a Get! And Rabbi Gamliel supports that view (Ketubot 13, 5; see also 12,

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1). In these cases, no one suggests the woman can claim “because I am a woman I should suffer”! According to the Mishnah, there are three regions in the Land of Israel for issues of marriage: Judah, Transjordan, and the Galilee. Within a region, a husband cannot force his wife to leave from one town to another in another region or from one city to another in another region; within a region, he can force her to move with him but not from a town to a city or a city to a town. He can move her from a bad to a good dwelling but not from a good dwelling to a bad dwelling. Shimon ben Gamliel does not permit a move from a bad to a good dwelling because any move may be bad (Ketubot 13, 10). There is no discussion of what the woman wants. The concluding Mishnah of Ketubot (13, 11) reviews cases that involve differences between men and women about the value of places. All have a right to force their families to go up to the Land of Israel, but none can be forced to leave the Land of Israel; all have a right to force their families to go to Jerusalem, but none can be forced to leave Jerusalem. The same is the case for men and women (to force each other to live in the Land of Israel or Jerusalem). If a woman refuses, she is divorced without a Ketubah; if the husband refuses, he must divorce her and give her a Ketubah. If you marry a woman in the Land of Israel, you must divorce her there and pay her Ketubah in currency from the Land of Israel; if you marry someone in a place outside of the Land of Israel and divorce her outside Land of Israel, you may give her Ketubah money from the money of the Land of Israel.

Control over Daughters The Mishnah deals when and in what contexts fathers and husbands can nullify oaths that their daughters/wives make. While specific to oaths, the broader significance of these rules are the ways that fathers and husbands control their wives and the subservient role of women in households dominated by men. The control of men over women and the lack of female independence may be illustrated by the discussion of the annulment of vows that women make (Nedarim 10, 1–4; 11, 10). A father can annul the vow of his daughter and the husband can annul the vow of his wife. In the transitional status of engaged girl (naarah meoreset), both father and husband-­to-be have the option of annulling vows. If the father died in the transition period, the husband cannot annul the vow; if the husband died, the father can. The husband can, however, annul the vow of a bogeret (a grown woman) but a father cannot annul his daughter’s vow when she is

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a bogeret. As long as a woman is not independent, her father and her last husband can nullify her vows (Nedarim 10, 2–3). In the transition stage from Erusin to Nisuin and the case when there was some previous vow, the father cannot nullify and the husband cannot nullify previous commitments of his fiancée. Hence, the goal was to ensure that she entered the marriage with her father annulling all her previous vows and the same for the husband since neither would be able to annul vows made before Nisuin once she is married (Nedarim 10.4). When can the husband cancel his wife’s vows? One opinion is that her vows cannot be annulled until she is in her husband’s house (Ketubot 10, 6). The discussion ends that the husband (and the father) has only a limited time to annul the wife’s (or the daughter’s vow)—only a maximum of 24 hours from the time the vow is made, but usually only that day (Ketubot 10, 8). The Mishnah discusses women who are autonomous and therefore neither husband nor father can annul their vows. Thus, for example, her husband has no power to annul her vow after divorce (see Ketubot 10, 3, if she has not become independent). The list distinguishes between a bogeret and a naarah who became orphaned or left her father’s home. The key timing is at age 12 until 12 years and 6 months when other transitions occur and when no one can annul her vow (Ketubot 11, 10). Originally, three cases of women had rights to initiate leaving a marriage with a Ketubah: A wife who says she is unclean (a woman who was raped and therefore not allowed to continue to be married to a Kohen); a wife who says that her husband is impotent or that she is infertile; and a woman who vows not to have sexual relations because she finds sexual relations painful—in all three cases the concern is that these may be excuses to connect with another person. Subsequently, the rabbis suggest that she bring proof that she is impure (Temeah); that the rabbis try to console or appease her; or annul her vow. In these cases, her autonomy is bought at a high price and all seem to be connected with sex (Nedarim 11, 12).

Sotah No theme is more poignant in the context of control than that of Sotah, the wife accused of adultery. A husband’s suspicion that his wife is unfaithful and has had an adulterous relationship is based on the biblical view about the bitter water ritual. What does the ritual mean for the family, for the power of the husband and the role of the accused wife? While husband-­ wife relationships are implied, there is much that we can infer about the

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wife’s autonomy or about relationships within marriage. Given our discussion about the role of women, it is not surprising that men in general and a male court have the power over women. However, we should take note of the assertiveness of women to be meeting with a man who is not her husband, after explicit warnings from her husband. We can assume that in general women would not be meeting privately with men other than their husbands but some must have and their defiance is striking. Much of the outline of Sotah is contained in the fourth book of the Torah (Bamidbar, chapter 5). Background: A husband suspects his wife of meeting in a secret location with a man and in general he warns her. But there are no witnesses to her rendezvous. She is defined by the biblical text as a “Sotah” suspected of adultery. In this state of being suspected she is not permitted to be intimate with her husband (and if she is the wife of a Kohen, she would not be allowed to eat trumah, i.e., to have access to his resources). She undergoes a ritual to somehow determine her innocence or guilt. If she is guilty as uncovered by the ritual, she is a cursed one among her people, and if she is innocent as a result of the findings of the ritual, she may return to her husband. What if she confesses that she is guilty? The Mishnah indicates that she loses her Ketubah and is not exposed to the water ritual. The Mishnah is concerned with the implementation of the “trial” and the details of the warning provided by the husband to the wife. Was the warning provided by the husband in front of two witnesses, the secret meeting observed by one witness or even by the husband (Rabbi Eliezer) or the need for two witnesses for both the warning and the witnessing of the secret meeting (Rabbi Yehoshua) (Sotah 1,1). After the warning is given and the secret meeting is witnessed, the woman is defined as a Sotah. As a result, she is no longer permitted to be intimate with her husband. The final ritual is performed in the Beit Din in Jerusalem, the High Court of 71 (Sotah 1, 4), and she is interrogated to lead to a confession so that she doesn’t undergo the water ritual. The High Court suggests that wine, and foolishness and childishness and even evil peers all bring about sin. If she confesses, she then gets a divorce but no Ketubah payment (1, 5). Only if she maintains her innocence does she undergo the ritual. (Note the way in which she can get out of the water ritual and its embarrassment for her.) The court then tears her garment and loosens her hair, clothes her in ragged clothes, and removes jewelry, all to humiliate her and perhaps to pressure her to confess (Sotah 1, 6). People may come to see her in her humiliation. This form of interrogation sheds light on the powerlessness

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of women and contrasts with the power of husbands, even without evidence to bring his wife to such a humiliation. Why does he not simply divorce her (according to the discussion in the tractate Gittin—see later— he doesn’t need much of an excuse)? The answer perhaps has to do with paying her Ketubah. The humiliation is public so that others are warned of violating the integrity of the family (Sotah 1, 6). This points to, on the one hand, the centrality of family integrity and the relative powerlessness of women but, on the other hand, the assertiveness of women despite the public penalty and the ability of women to confess guilt and avoid the water ritual. It also points to the relative importance of the Ketubah as her primary resource so much so that she would undergo this kind of public humiliation. This may be the reason that she doesn’t simply confess and thereby get divorced without her Ketubah funds. There is a dispute whether the water ritual can be postponed for one to three years as a result of merit of a woman in other areas (Sotah 3, 4–3, 5). The rabbis apparently are conflicted over what are the effects of the water ritual, whether it works or not and some argued that if it didn’t work it must be due to the merits of the woman in other areas. Therefore, there is a delayed or postponed effect (3, 6). There are different types of marriages wherein women become forbidden to their husbands since there is suspected adultery; some leave with a financial support of the Ketubah (Sotah, chapter 4). Some of these marriages are those that are prohibited by the Torah (high priests to widows or regular priests to divorcees) or Israelite daughters to mamzerim (neither “drink” nor take their Ketubah, essentially because the marriage is “annulled”). In some marriages where there is a suspected adulteress, the wife just takes her Ketubah and does not drink. All these reinforce that marriages between men and women are quite diverse in the Mishnaic view, some prohibited and some annulled. Some women are not fit for marriage since they are either pregnant from someone or nursing or not fecund, who neither “drink” nor have access to their Ketubah when there is suspicion of adultery. Some women, if suspected of adultery, do not come under the rule of Sotah (Sotah 4, 3; 4, 4). Older women or non-fecund women (Eylonot) who are not fit for childbearing do not drink bitter waters and do not take a Ketubah consistent with the view that the purpose of marriage is childbearing. The wife of a Kohen who is suspect but successfully goes through the bitter water ritual is allowed to return to her husband, even though the rules for a Kohen’s wife are different from those for the wife of an Israelite (Sotah 4, 4). When the husband brings charges

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against a child (9 years old or age 13 who has yet to bring signs of physical maturity), no rule of Sotah is enforced. There are women who have been warned by the court and not by their husbands and are not forced to drink but do not have access to their Ketubah (Sotah 4, 5). Finally, the man with whom the wife is suspected of committing adultery and the woman become forbidden to each other (even after her husband is dead or divorced from her) as she had been to her husband (Sotah 5, 1).

Divorce: The Dissolution of Marriage There is no indication that marriage is so sacred or preordained that divorce is against family norms or Torah law, or that there is any violation of moral or ethical or human principles involved in a divorce. This is consistent with the notion that marriage is a secular contract for economic and social/demographic reasons—reproduction—and is not thought of as sacred. The question is primarily the payment of the Ketubah amount to protect the financial vulnerability of the woman. Since marriage is a “contract,” divorce needs to be in the form of a document that breaks the contract. Contracts often need courts to be legitimated especially or primarily when disputed and require some formulaic procedures, including witnesses to transmit the document, and a text that leaves little doubt about the objective of the person preparing the contract and in identifying the parties involved. The various discussions in the Mishnah about divorce in the Mishnah shed light on the conception of marriage and issues of gender differentiation. A Get is an acceptable alternative to a disgruntled husband (Gittin 10, 9). It is relatively easy to obtain a divorce, but it still needs to be legitimated publicly by the courts. Men must intend to divorce women (“lirtzono”—his intention/will is key), but divorce does not necessarily require the consent of women and unlike marriage can occur even against her will. The role of the woman in divorce processes is largely passive. The divorce document needs to be transferred from the husband to the wife and there are technical administrative issues involved in the transfer and the role of the agent or the court. There are also technical issues associated with the role of witnesses in the preparation of the Get and its delivery. The key factor behind the elaborate administrative apparatus associated with the Get is that its execution entails the transfer of money committed by the husband to the wife though the Ketubah. There are differences between the formula for divorce from the Land of Israel and from outside

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of Israel (Gittin 1, 3). There are analogies between servants and women— the release documents for women’s divorce are like the document that frees servants (Gittin 1, 4 and 1, 5). These comparisons reflect the fundamental view of women in the Mishnah. Everybody can write a Get—even a mute, deaf person, or a child. A woman can write her own Get, assuming that husband and wife are in agreement and the husband gives her a receipt for her Ketubah. The Get can be transmitted by an agent of the woman by all except a mute, deaf and child, a blind person, and a non-Jew (Gittin 2, 6) The husband initiates the divorce and the wife has only to receive the divorce with no input. This is unlike marriage where her will is important. The questions about divorce up to this point are technical and bureaucratic. At the very end of the tractate Gittin and the last paragraph (9, 10), the grounds for divorce and the justification for divorce are specified: Bet Shamai says: a man should not divorce his wife except if he finds in her a Ervah Davar (something unseemly—but not clear what this actually means) according to the verse in Deuteronomy 24, 1. Bet Hillel says grounds for divorce include whether he finds an Ervah Davar or something less significant like ruining a meal (i.e., she is not carrying out her domestic tasks properly). Rabbi Akiva says even if he finds someone better or more attractive to him (i.e., even if she does not do anything to justify the divorce). The grounds for divorce are rather simple (and appear on the surface almost frivolous) and there is no sense that these grounds would vary by whether there are children, or the social class of the husband, or how or whether the divorce has an impact on others. Except indirectly, there is no discussion in the Mishnah of who gets custody of the children in a divorce, although in the broader context the father (or his family) has custody of the children. There are three other conditions or grounds for divorce: If the wife is not able to have children; if the husband or others make a claim that his wife is unfaithful; and if he has made a vow to divorce his wife for whatever reason (Gittin, 4, 7 and 4, 8).15 A man may divorce his wife and not give her the money from her Ketubah when his wife violates the Torah or the norms about women’s behavior (Ketubot 7, 6). The most striking of these conditions is if a woman violates some aspect of Judaism or Jewish tradition (norm). As specified in the Mishnah, these include feeding her husband food that had not been tithed, having sex during her menstrual period, not removing  Other conditions that are grounds for divorce were noted earlier.

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the Hallah portion for the dough, or not fulfilling her vows. All these imply private acts that violate trust and involve deception. Violating Jewish tradition includes going out in public with her hair uncovered or dressing immodestly in public and conversing with strange men, reflecting immodest actions in public (Ketubot 7, 6). Other grounds for divorce include if she curses his parents in front of her husband or she speaks loudly so that her neighbors can hear her.16 Again nothing about the behavior or actions of the husband is grounds for divorce (Ketubot 7, 6). In the context of the Mishnah, the husband has total control over the grounds for divorce and it is only his satisfaction that counts. The court plays the role of making sure that the technical details are followed. There is no discussion of reconciliation between husbands and wives and no attempt by the court to change his mind. It is as if the Mishnah suggests that the goal is to have the Get written correctly, properly signed, witnessed, and delivered and received by the wife. So there is no one and no institution to protect the institution of marriage (and none to protect her interests or the interests of the children). If a man has some conspicuous sore that develops, according to some, he is obligated to divorce his wife (i.e., the court forces him to divorce her). If she develops some conspicuous sore before or after she moves in with her husband, she can also be divorced even without her husband paying off her marriage contract (Ketubot 7, 8). Divorce seems to be the consequence of what wives do either in private or in public. Variation in divorce is not designed to protect the interest of the children or others. Even in receiving the Get, the woman is relatively passive as long as she or her agent has the Get in their possession, that is, she has to formally be the recipient. Here again the goal is to assure her compensation when she no longer is part of her husband’s household.

Concluding Thoughts Issues of marriage, divorce, childbearing, and kinship relationships are complexly intertwined. They are the building blocks of a community and generational continuity. The diverse Mishnaic views of these family processes have several shared features. Almost all the notations in the Mishnah view marriage as a highly valued status and marriage is a statement of a 16  It is unclear what she speaks about but the implication is that she disrespects her husband publicly. The Gemara says: Sex or anything that might embarrass her husband.

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relationship that requires public recognition. Often this means requiring a formal document along with some protection of support for the woman since she is in an economically vulnerable status. It is clear from the Mishnah that women are generally in a socially and economically subordinate position within the family (as women are in arenas outside of the family). Children are valued in the context of marriage and sexual intercourse is valued for both husbands and wives. When marriages do not work out for either serious or trivial reasons (deceit or failure on the part of the wife as experienced/articulated by the husband), divorce is the path out of marriage and is acceptable. The woman in most cases is not an actor in the divorce; while marriage requires her consent, she is in large part passive in the divorce process. Marriage itself appears to be a product of kinship interests and represents an important basis of economic exchanges between families. It appears that women have relatively low status in their families of origin but nevertheless they have little to lose and more to gain by marriage, even when their status at origin and in marriage is subordinate to males. There appears to be no option of residential or social independence for women articulated by the Mishnah. Except for the priesthood and for second-generation children of the intermarried, there are few restrictions of marriage choices and few problems of inclusion of the outsider marriage partner in the community. Among Jews, marriage is part of an open community with no notion of the costs of intermarriage or the problems of group continuity. One gets the impression from the oversell Mishnaic text that no household is complete without the presence of a married couple and children. As a result, it is likely that there would be enormous peer and extended kinship pressures for men and women to form families relatively early in the life course. And in the minds of the Mishnaic authors, marriage would thereby be sanctified and blessed. But the Mishnah recognizes that not all marriages can be sustained. Marital dissolution by divorce or death of the husband leaves women in a particularly vulnerable economic and often dependent residential position. The Ketubah is a formal marriage document providing some resources for the welfare of widowed and divorced women. Perhaps in some cases the existence of a Ketubah is a deterrent to an inequitable separation between spouses. We reiterate that the Mishnah is not a guideline for what should be or a description of what was but a set of ideals. From these ideals we learn about norms and values but not necessarily about actual practices or behavior.

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The Mishnah does not present these ideals without recording variation and disagreement. Family differences by social class and by region within and outside of the Land of Israel are in addition to variation in family patterns by age and sex. These variations reinforce the conclusion that context matters for family themes. We have not specified the broader sources of these contextual differences. Specific biblical models are one set of contexts for family patterns for some but not all family themes and certainly not for the details specified in the Mishnah. It is difficult if not impossible to go from Torah text to specifying the contexts of family patterns and vice versa, to trace back family patterns noted in the Mishnah to the Bible. Is there an overarching theory or conception of family themes in the Mishnah? Given the variety of themes included under the rubric “family” and the diverse viewpoints covered by the Mishnah, it is unlikely that a grand family theory of the Mishnah exists. Emerging clearly from our selective overview of the Mishnah are the complexity and diversity of the Mishnaic perspectives on family structures and processes and the relationships between husbands and wives and broader kinship groups. On the whole, our review reinforces the general argument that the Mishnah as a whole is not a uniform homogeneous document. Perhaps, diversity of family themes is the norm specified by the Mishnah. While family themes are at the heart of the community that the Mishnah constructs, the Mishnah is not designed as a treatise on the family or a simple straightforward guideline to behavior at the time of the Mishnah or subsequently. Rather it is a set of ideals for the heterogeneous communities where Jews lived.

CHAPTER 7

Study as a Socially Formative Activity: The Case of Mishnah Study in the Early Rabbinic Group Jack N. Lightstone

This chapter1 aims to achieve several related ends. First, it aims to illustrate the value of one possible approach to using the evidence of Mishnah to illuminate important elements of the social formation of the early rabbinic group sometime in the latter half of the second and early third centuries CE in the Land of Israel. That approach is founded on 1  This essay is a (slightly) revised version of my article in the journal, Studies in Judaism, the Humanities and the Social and the Social Sciences (SJHSS) 1/1 (2017): 21–43, entitled “Textual Study and Social Formation: The Case of Mishnah.” The version published in the journal commences from a different quarter, as an illustration of the academic missions of the humanities and social sciences generally, and the paper there offers the analysis that follows as an illustration of the pursuit of those missions. The essay in its slightly revised form here is published with the journal’s permission, within a quite different context and serving a different purpose, since here the paper is gathered among a group of essays intended to illustrate various social scientific approaches to the study of the evidence of the Mishnah. I am grateful for the journal assenting to the paper’s refashioning for re-presentation in the current volume. I should also note that some of the analyses of this paper and of its original version in the SJHSS, particularly analysis of the dispute-form in Mishnah, are directly relevant to

J. N. Lightstone (*) Brock University, St. Catharines, ON, Canada © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_7

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considering how a group’s repeated exposure to a revered and devotedly studied text’s pervasive literary and rhetorical traits—apart from, and in addition to, the assimilation of its contents—not only helps establish a sense of social solidarity but also, and more significant still, shapes core elements of their shared social identity. Intense devotion-like study of a text such as Mishnah, given the text’s pervasive literary-rhetorical characteristics, imparts skills, demands expertise, and requires sustained mentorship and co-mentoring relations of a particular sort—all of which serve to institutionalize a group or guild such as that of the early rabbis. Second, if the analyses of this study are at all compelling, what follows demonstrates a quite different approach to glimpsing the social formation and traits of the early rabbinic movement than is normally pursued, which is to glean from rabbinic literature sayings and stories what appears to proffer information about the rabbinic movement’s beginnings and organization. While one cannot say that the latter approach sheds no light on such socio-historical questions, it is a path fraught with difficult historiographical problems, many of which cannot be adequately addressed (and which, in any case, lie well outside of the expertise of most social scientists to resolve). Third, I would hope that this chapter’s analyses and arguments might show the value of its conceptual framework and methodology to the social study of other groups intensely focused on the study of other texts. From the study of unique social phenomena, that is of one particular group devoted to the study of one particular text, one learns little. Historical uniqueness is not very amenable to comparisons and so does little to advance knowledge about humans and their societies. Far more is to be gained by comparison of groups in order to understand the similarities and differences among them, and so articulate and test theories about why this should be so.2 This chapter, then, offers such a case study: the another, to my mind, still unresolved issue in the literary-historical and literary-critical study of early rabbinic literature; namely, the significance in this literature of seemingly direct attribution of sayings and stories to named early rabbinic personages. Focusing on the Mishnaic dispute form in particular, I have articulated the significance of analyses and findings such as those presented in this paper to the “problem” of attributions in early rabbinic literature in a sibling essay; see Jack N. Lightstone, “Naming Names: The Meaning and Significance of Disputes and the Use of Attributions to Named Authorities in Mishnah” in To Fix Torah in Their Hearts: Essays on Biblical Interpretation and Jewish Studies in Honor of B.  Barry Levy, Vanessa Sasson et  al. eds. (Cincinnati: Hebrew Union College Press 2019), 86–117. 2  To study Judaism (or Judaisms) of the Jewish People is to analyze it (or them) as instances of a larger set of human individual and group creativity and imagination. This is a point that

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place of a literary creation, the Mishnah, and, specifically, of dedicated Mishnah study, in the nascent rabbinic movement around the turn of the third century CE, arguably the period of social formation (or perhaps reformation) of the early rabbinic group.3 I would hope that the approach my recently deceased doctoral supervisor, Dr. Jacob Neusner, made frequently and emphatically, when I and my fellow graduate students studied with him in the early 1970s. This may be an obvious statement now, but it was not then, as the scholarly study of Judaism was still largely undertaken in Jewish institutions of higher learning and most faculty in secular universities who dedicated their careers to the research of Judaism’s classical and medieval literatures had themselves acquired their expertise in these texts while studying in Jewish institutions such as seminaries and yeshivot—Jacob Neusner himself being among that generation. Also among the most cogent and articulate writers on the study of religion, from the perspectives of the humanities and social sciences in general and the academic study of Judaism, is, to my mind, Jonathan Z. Smith. He has been consistent in continuing to reflect on these matters in light of his career experiences. In this regard, see Jonathan Z. Smith, “When the Chips Are Down,” in Relating Religion: Essays in the Study of Religion (Chicago: University of Chicago, 2004), 1–43. The writings of Jonathan Z. Smith, in the 1970s and early 1980s, were the first to drive these points home for me in the study of religion. See, for example, his essay, “In Comparison a Magic Dwells,” in Imagining Religion: From Babylon to Jonestown (Chicago: University of Chicago Press, 1982), 19–35. For an informative and quite comprehensive discussion of the comparative methodologies, particularly in the modern and post-modern study of religion, see David M. Freidenreich, “Comparisons Compared: A Methodological Survey of Comparisons of Religion from ‘A Magic Dwells’ to ‘A Magic Still Dwells,’” Method and Theory in the Study of Region 16 (2004): 80–101. For a study of the early modern efforts to compare religions from the perspective of the history of philosophy and the history of ideas, see Laura Ammon, Work Useful to Religion and the Humanities: A History of the Comparative Method in the Study of Religion from Las Casas to Tylor (Eugene, OR: Pickwick Publications, 2012). 3  There is no doubt that early rabbinic texts themselves implicitly or explicitly place the development of the emergence of “the Rabbis” earlier than the dawn of the third century. The Mishnah itself attributes traditions to named “rabbis” who flourished just before and just after the destruction of the Jerusalem Temple in 70 CE. These texts also attribute rulings to proto-rabbinic figures like Hillel and Shamai and to their “Houses.” See Jacob Neusner, Rabbinic Traditions about the Pharisees, before 70, 1–3 (Leiden: Brill, 1971). But “the Rabbis” did not produce and promulgate a common major text, even if traditions or collections of traditions may have circulated among them before, or other than, Mishnah. Post-Mishnaic rabbinic texts consistently portray Rabbi Judah the Patriarch (last decades of the second century and first decades of the third century) as a pivotal figure in Mishnah’s production or promulgation, or both; see Lee Levine, “The Status of the Patriarch in the Third and Fourth Centuries,” Journal of Jewish Studies 47 (1996): 1–32, and David Goodblatt, The Monarchic Principle (Tübingen: Mohr Siebeck, 1994). Whether the attribution of Mishnah’s production to Rabbi Judah the Patriarch is historically accurate or, as is more likely, an honorific attribution only does not matter for our purposes. It serves only in combination with other evidence stemming from attributions to date that “our” Mishnah’s production and promul-

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of this chapter might be extended to other groups equally organized in part or in whole around the study of a revered core curriculum or canon of documents. Why, then, this paper’s focus is on Mishnah? Because it was the first major literary production of the early rabbis, and Mishnah’s production and promulgation as an authoritative text is contemporaneous with social developments within the rabbinic movement in the last decades of the second and first decades of the third century. Why Mishnah study? Because a significant body of extra-Mishnaic evidence from rabbinic literature, dating soon after Mishnah’s promulgation, attests to the centrality of Mishnah study and the mastery of Mishnah as the summum bonum activity that qualifies one for membership in the rabbinic group.4 As intimated earlier, a particular historical instance is illuminating, because it can be related to a wider set of phenomena of which our case in point may then provide a telling example—as a result of similarities to, and differences from, meaningful comparators. In the case of Mishnah and Mishnah study, the more immediate, important, culturally, and historically relevant comparators come from two fronts. One is the study of authoritative texts (canonical texts, if you will) within ancient Judaism and Judaism of Late Antiquity, and the role of such mastery in social formation within gation is sometime near the turn of the third century CE. “Our” Mishnah is the only one extant, although Judith Hauptman has argued for the existence of a proto-Mishnah in Rereading the Mishnah (Tübingen: Mohr Siebeck, 2005). Concerning the above, see Jacob Neusner, Judaism, the Evidence of the Mishnah (Chicago: University of Chicago Press, 1981) and Martin S. Jaffee, Torah in the Mouth: Writing and Oral Tradition in Palestinian Judaism: 200 BCE to 400 CE (Oxford: Oxford University Press, 2001); see also Martin S. Jaffee, “Oral Tradition in the Writings of Rabbinic Oral Torah: On Theorizing Rabbinic Orality,” Oral Tradition 14, no. 1 (1999): 3–32; Elizabeth Shanks Alexander, “The Fixing of Oral Mishnah and the Displacement of Meaning,” Oral Tradition 14, no. 1 (1999): 100–139; Elizabeth Shanks Alexander, Transmitting Mishnah: The Shaping Influence of Oral Tradition (Cambridge: Cambridge University Press, 2006). See also David Kraemer, “The Mishnah,” in The Cambridge History of Judaism: The Late Roman Rabbinic Period, vol. 4, ed., Steven S. Katz (New York: Cambridge University Press, 1984), 299–315, cf. 313, 314.n.13, which references David Weiss Halivni’s “The Reception Accorded to R.  Judah’s Mishnah,” in Jewish and Christian Self-Definition: Aspects of Judaism in the Greco-Roman Period, vol. 2, E.  P. Sanders, A.  I. Baumgarten and A.  Mendelson, eds. (Philadelphia: Fortress, 1981), 204–12. See also Steven J. Fraade, “Introduction to the Symposium: What Is (the) Mishnah?” AJS Review 32, no. 2 (2008): 221–23. 4  See, for example, Avot de Rabbi Nathan, version a (AVRNa), 8:1, cited in part and discussed later in this paper. See also Jaffee, Torah in the Mouth, 4; Alexander, “The Fixing of the Oral Mishnah,” 100–139; and Alexander, Transmitting Mishnah, 1–3.

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Jewish society. That is to say, Mishnah study as a socially formative activity within the early rabbinic group did not arise within Jewish society ex nihilo, as it were, but emerges from a social history within antecedent Jewish communities. The second immediate arena to turn to for meaningful comparators is the social role of textual study within the contemporary Middle Eastern and Mediterranean world(s),5 of which ancient ­Israelite/ Judaic polities and Jewish communities of Late Antiquity were a part. As I shall point out below by way of introduction to the case of Mishnah study, institutionalized forms of study of one sort or another in the Middle East, Egypt and the Eastern Mediterranean regions in Hellenistic and Roman times both created and reinforced well-defined, social/class boundaries and social strata. Such institutionalized forms of instruction also served the process of defining authoritative occupational groups. It is, then, to these comparators to which that I now turn, in order to provide, albeit summarily, some context before proceeding to the case at hand, Mishnah study in the early rabbinic movement in Roman Palestine.

Contextual Elements: Text, Study, and Occupational Groups in Ancient Judaic Societies The (temporarily successful) Deuteronomic reformation associated with King Josiah of Judah in the seventh century BCE (2 Kings 22 and 23) laid the seeds for major, more enduring changes to come several centuries later in the Jerusalem-centered, Persian-ruled territory of Judah (Yahud), associated with the careers and followers of Ezra and Nehemiah in the fifth and fourth centuries BCE. These changes placed a document, “the Torah of Moses,”6 at the center of all systems of legitimation and authority within the community. From that period onward, only those communities that 5  I would recall at this juncture what Émile Durkheim wrote more than a century ago about “social facts.” He defined “social facts” as any shared norms or institutions that constrained human behavior in one fashion or another. However, he also maintained that the explanation of a social fact was to be sought in its diachronic and synchronic contexts: diachronic—in the history of other, related social facts that constituted an influential historical context; synchronic—in the contemporaneous systems of social facts within which the social fact under examination fit. See Émile Durkheim, The Rules of Sociological Method, (New York: Free Press, 1982), first published (in French) in 1895. 6  See Deut. 4:8, 45; 2 Kings 22:3, alternatively designated “the Book of the Covenant” in the next chapter, 2 Kings 23:2; and in Ezra 3:2, called “the Torah of Moses, the man of God.”

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claimed to possess this “true blue” text, to command the “true blue” interpretation of it, and, faithfully, to behave in accordance with that interpretation could lay claim to legitimacy, that is, to be the People of Israel under covenant with Yahweh. As a consequence, other competing groups with roots in ancient Israel were delegitimized—the authors of Ezra-Nehemiah dismissed competing groups as mere “country folk” (amei ha-aretz), cast aspersions on their bloodlines, and questioned their monotheism (see Ezra 4)7—not because of any intrinsic “rightness” of the Torah-of-Moses-alone community, but because of power politics of the region, first within the Persian Imperial system (see Ezra 4:1–6:15), and, subsequently, within the periods of Ptolemaic and Seleucid hegemony in the Land of Israel and, more broadly, the Levant. As a corollary, those who (benefiting from the backing of the imperial powers of the day) claimed mastery of the Torah of Moses (see Ezra 3:2, 6:18, 7:6, 7:10–12, 14, 21, 25–26; and Nehemiah 8, 9:13) and who possessed and were edified by the Torah’s companion literature (which eventually encompassed the books of the Prophets and the Writings8) commanded the People of Israel, the People of Yahud, namely “the Jews.” While the historical and social processes that brought about this state of affairs in the fifth, fourth, and early third centuries BCE are sketchy, for lack of descriptive evidence beyond the production of the Books of Ezra and Nehemiah, the outcome by Hasmonean times (second and first centuries BCE) is both clear and seemingly so well entrenched as to appear irreversible.

7  The tendentiousness of these criticisms is proven by Ezra-Nehemiah’s authors’ own admission that the very leadership of the fifth- to fourth-century BCE Jerusalem-centered community, including members of the priestly class, had to be forced on several occasions to divorce their foreign wives and to cleanse the Jerusalem cult of cult-objects of foreign deities (see Ezra, chapters 9 and 10; Nehemiah 13:23–31). Moreover, it seems that some Judean “nobles” (possibly landowners) were among those that resisted the Ezra-Nehemiah group’s reforms and (re)establishment of Jerusalem’s centrality and power in Judah (Yahud) (see Nehemiah 7:15–19, see also Nehemiah 3:5; 5:7). Apparently, only with time did these reforms “stick.” 8  Clearly attested in the prologue to the Greek translation of Ben Sirah (a.k.a., Sirach or Ecclesiasticus). The prologue was added by the translator, who identifies himself as the grandson of the author, Simeon or Yeshu, of the original Hebrew. The translator describes his grandfather as someone who had dedicated himself to the study of “the law, and the prophets, and the other books of the ancestors” and a person who promoted “the love of learning,” that is, the study of these texts and of associated “wisdom.”

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By late Hasmonean times, something else appears well established: the existence of a cadre of “learneds” (excuse the neologism) as a distinct social or occupational “class,”9 if that is an appropriate term, by reason of their scholarship of the Torah of Moses and of associated authoritative literature. They functioned as an identifiable occupational group within the Jewish “state” and Temple administrations. They called themselves, and were called by others, “scribes” (soferim, a well-documented title) and perhaps “sages” (hakhamim). So well-established is this class by the first century CE in the Land of Israel that scribes appear as “stock” figures in the Gospels, a point to which I return later.10 Institutionalized education of soferim or hakhamim also seems attested to in, for instance, the Book of Ben Sira (51:23). (I deliberately set aside here what rabbinic literature says or implies about the education of “sages” in Hasmonean or earlier times, as that testimony is late and perhaps an anachronistic retrojection). The by-then-mythologized “model” for such scribes was Ezra, entitled in Ezra-Nehemiah, as “the Scribe, expert in the Torah of Moses” (Ezra 7:6). As to what form such instructional institutions took, the evidence does not permit us to say. Were they institutions in which several or more instructors worked together as an organized school? Or were there individual tutors, each with a restrained number of private clients? We do not know, although both models are well attested to in Middle Eastern or Mediterranean society in the late Hellenistic or Roman Periods.11 9  Ben Sirah (10:1-5ff), who probably wrote just prior to the Hasmonean war and subsequent Hasmonean rule over Jerusalem/Judah, seems explicitly to link formal study in “wisdom” to high-ranking administrative bureaucratic roles in Hellenistic Jerusalem/Judah; the author also links such functions to the designation of “scribe.” 10  See M.  D. Goodman, “Texts, Scribes and Power in Roman Judea,” in Literacy and Power in the Ancient World, Alan K.  Bowman and Greg Woolf, eds. (Cambridge and New York: Cambridge University Press, 1994), 99–108. See also Philip R. Davies, Scribes and Schools: The Canonization of the Hebrew Scriptures (Louisville: Westminster John Knox, 1998), 15–36. In addition, see Jaffee, Torah in the Mouth, 15–26, and Meir Bar-Ilan, “Scribes and Books in the Late Second Commonwealth and Rabbinic Period,” in Compendia Rerum Iudaicarum ad Novum Testamentum, Section 2, vol. 1, Mikra, M. J. Mulder, ed. (AssenMaastricht: van Gorcum, and Philadelphia: Fortress Press, 1988), 21–38. 11  Davies, Scribes and Schools, 15–36; Emanuel Tov, Scribal Practices and Approaches Reflected in the Texts Found in the Judean Desert (Leiden: Brill, 2004), 7–30; and Karel Van Der Toorn, Scribal Culture and the Making of the Hebrew Bible (Cambridge: Harvard University Press, 2007). See also Michael Wilkins’ treatment of the “learner/disciple” in the ancient and Greco-Roman periods in Discipleship in the Ancient World and Matthew’s Gospel (Eugene, OR: Wipf and Stock, 1995), 1–125.

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That the Torah-of-Moses-alone ideology should favor the emergence or enhancement of the roles of such groups of “scribes” or “sages” as an occupational class is not surprising in many respects. Nonetheless, it is worth noting how remarkable a transformation of early Judaic society this represents in the system of social authority within Israel. The Torah of Moses itself imagines no such authoritative group of “learneds,” but does acknowledge kings,12 prophets,13 priests and Levites, and judges.14 What the Torah of Moses does do is to make the authority of the latter subservient to that of a document, the Torah, and Moses (long dead, of course) is now the only source of revelation that matters. According to Deuteronomy, kings are to study the Torah. Prophets whose utterances contradict the teachings of the Torah are ipso facto false prophets. One is to go to the priest or to the “judge” for authoritative rulings based on Torah law, which assumes the priest (a hereditary post) has studied Torah (an acquired expertise). Clearly, the rug is being pulled out from under the forms of traditional authority that were normative and well-established in ancient Israel, and sapiential authority is being given a “leg up.” For an occupational group to be given a “leg up,” it is more likely that they will have already existed, and less likely for them to have emerged ex nihilo. The “sage” and the “scribe” are well referenced in biblical literature for the period prior to the ascendency of the Torah-of-Moses-alone ideology. They are figures in the royal court of ancient Israel,15 as they were in the Middle East generally in this period.16 These figures appear to be retainers of the monarchy, acting as advisors and senior bureaucrats. The qualifications that suited them for their positions and the training regime that prepared them for their appointments can only be surmised by indirect methods. But they clearly had to have acquired “high literacy,” including not only the capacity to read and write,17 but familiarity with the literatures and knowledge of the day, some of which seems to be reflected

 See Deut. 17:14–20.  See Deut. 13:2–6; 18:18–22. 14  See Deut. 17:8–13; 19:17. 15  See esp. Jeremiah 18:18; see, for example, the role “Shaphan the Scribe” in Josiah’s administration in 2 Kings 22 and 23. 16  See, again, Davies, Scribes and Schools, 15–36; and Van Der Toorn, Scribal Culture and the Making of the Hebrew Bible, chapters 3 and 4. 17  Their skills probably included numeracy as well. Shaphan the Scribe is clearly portrayed as handling both administrative and financial matters in Josiah’s court (2 Kings 22). 12 13

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in the “wisdom” texts of the Hebrew Bible (even if these biblical texts were produced in later periods). For such occupational groups, the self-transformation to purveyors of “Torah-literacy,” specifically, would not have been a bridge too far. The “scribes” encountered in the Gospels as Jesus’s strawmen are portrayed as precisely that—recognized, retained purveyors of Torah literacy, as the “scribes of the priests” and the “scribes of the Pharisees.”

Contextual Elements: Sage and Scribal “Classes” in Middle Eastern and Eastern Mediterranean Societies of the Greco-Roman Period As intimated, “scribes” and “sages” were “high-literacy,” occupational retainers of the ancient Israelite monarchy, modeled on contemporary, royal-court administration in the Middle East or Eastern Mediterranean generally. Evidence for this institutionalized occupational class comes from Egyptian sources, where some form of educational system to produce court or temple-scribal magistrates and bureaucrats from among the sons of the wealthy (and perhaps, at times, the very intellectually gifted among the poor) is clearly exhibited as early as the end of the Old Kingdom, as in the wisdom text attributed to Dauf. Indeed, the scribal “wisdom literature” of Egypt and that of Israel resemble one another to an extent that cannot be by chance. The story of Ahikar, documented among the Elephantine Papyri of the fifth century BCE, has already mythologized a scribal/sage figure that the narrative sets in the Assyrian imperial period. The books of Ezra-Nehemiah (Ezra 5:8), in addition to describing Ezra as a “scribe,” use the term to designate officials in the Persian Imperial government of the territories “beyond the river,” of which Jerusalem was a part.18 Even more important are governmental administrative systems of the Ptolemaic and Roman imperial periods in Egypt (and in the Land of Israel

18  Ezra 5:8 refers to two senior governmental posts in the Persian Imperial district, the “commander” and the “scribe,” implying that some clear division of labor existed between these two positions. This provided a striking parallel to the twinned positions of archon (ruler) and grammateus (scribe) in the subsequent Ptolemaic system of imperial rule, as discussed in the next paragraph of this paper.

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under Ptolemaic and Roman hegemony).19 The Ptolemies divided Egypt (and the Land of Israel, when the latter fell to their rule for about a century) into larger administrative districts, or nomes, and subdivided the latter into geographical “toparchies.” Within toparchies, villages and towns constituted subordinate administrative units. Only constitutional, self-governing “cities” fell outside this administrative system; constitutional cities were accountable directly to the monarchy, from which their city charter derived. At the apex of the governmental administration of each of the nomes, toparchies and towns were two administrative figures—(1) the archon and (2) the scribe—who served as the chief bureaucratic retainer. Obviously, the archons and scribes of the nomes were far more powerful figures than those of toparchies and the towns, and with exemplary service officers of latter two might rise to positions in the former. It is not clear to me whether or in what manner the Hasmoneans in the Land of Israel retained this organizational structure when the dust settled from first, the Seleucids wresting control of the Land of Israel from the Ptolemies, and second, the Hasmoneans winning (limited?) home rule for the Land of Israel under Seleucid hegemony. Nonetheless, I lean toward the conclusion that much of the Ptolemaic system of administration was retained, because of what we know about the region under Roman rule. When Rome assumed hegemony over Ptolemaic Egypt, they retained the system of nomes/toparchies and archons/scribes, even though it differed substantially from the system of Roman administration elsewhere.20 And as I have already noted above, the prominence of scribal retainers in a Roman-ruled Land of Israel is well documented in the Gospels for the first century CE. I cannot give an account of how specifically these scribes or archons were prepared for their occupations and careers, but it is well known that the gymnasium system of education of Greek-Macedonian (upper-crust) boys of Ptolemaic society was very well established and that it was intended to prepare young men for military, political, and administrative leadership at the court and in the cities—and I would imagine in the imperial 19  These early administrative systems have been well documented by scholars for more than a century. See, for example, Abdallah Simaika, Essai sur la Province Romaine d’Egypte Depuis la Conquete Jusqu’a Diocletien: Etude d’Organisation Politique et Administrative (Paris: Imprimerie Generale de Chatillon-sur-Seine, 1892). 20  Again, this system of administration is well documented in modern scholarship as early as the late nineteenth century; see discussion and evidence throughout Simaika, Essai sur la Province Romaine d’Egypte.

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administration of the territories generally. In addition, throughout the Eastern Roman Empire various philosophical schools operated. Some were small tutor-student affairs; others were organized on a larger, more institutionalized scale. In the Roman Imperial Period, Athens was one center for such schools; Alexandria too was such a locus. Libanius, writing in Syria, in the fourth century CE, tells us much about his “school days” as a student in Athens, and he implies a great deal about his own illustrious career as a private teacher of aspiring aristocratic youth, in competition with other private teachers in his region of the Roman Levant. His students, like those of the gymnasium, were preparing for high-ranking roles in the imperial government and its administration and for assuming their rightful place as decurions in the governing councils and in the magistracies of their towns and cities. Finally, and tellingly, if we turn to evidence from Jewish communities in the Mediterranean world outside of the Land of Israel, the titles “archon” and “scribe” appear liberally in Roman period inscriptions. The former title sometimes appears honorific or hereditary, like membership within the class of decurions in Roman cities. But the latter seems invariably occupational, referring to an administrative role in the Jewish community accountable to the political governance system of the “synagogue,” vested in an (aristocratic) council headed by the archon(s). This evidence is either contemporary with Mishnah’s promulgation and with the nascent period of rabbinic movement or (more frequently) from the several centuries immediately following the promulgation of Mishnah.21 This, then, constitutes a brief account of the general, more immediate, historically, and culturally relevant contexts for looking at Mishnah study as a socially formative activity within the early rabbinic group. The existence of administrative retainers, as an occupational group, class, or guild characterized by “high literacy” and education in sapiential traditions, is well attested within the Judahite/Judean communities for the centuries preceding the advent of the rabbinic movement. After the reforms which biblical literature associates with the careers of Ezra and Nehemiah, Torah study and mastery would likely have occupied a place of primacy in scribal preparation. But as the content of Ben Sira indicates, other sapiential traditions continued to have their rightful place in the education of scribes. 21  See Jack N.  Lightstone, “Roman Diaspora Judaism,” in A Companion to Roman Religion. Blackwell Companions to the Ancient World, vol. 9, ed. Jörg Rüpke (Oxford: Blackwell, 2007), 345–77.

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In conclusion, the existence of scribal occupational groups has been equally well documented for eastern Mediterranean society generally well before, at the time of, and in the era just after the production and promulgation of Mishnah near the turn of the third century CE. And, not surprisingly, a scribal administrative group was part and parcel of Jewish communal organization in the Roman-ruled Mediterranean.22 Against this backdrop, let us examine Mishnah study in order to glimpse aspects of the socially formative, core identity of the nascent Rabbinic group.

Mishnah Study and Early Rabbinic Social Formation, a Case Study In the remainder of this chapter, I seek to summarize two distinct types of evidence that bear upon our chosen task. One type of evidence attests to the importance, even the primacy, of Mishnah study and the mastery of Mishnah as a hallmark of becoming and being a “rabbi,” beginning at the turn of the third century CE, when Mishnah was first produced and promulgated by and within the early rabbinic group, and continuing in the subsequent several centuries. The other type of evidence has to do with the most pervasive literary and rhetorical traits of Mishnah itself. I will broach the question, “What type of occupational or sapiential expertise is reflected in or engendered by focused and intensive study of a document with these traits?”23 The former type of evidence helps establish the 22  Instances of scribal administrative presence in Diaspora Jewish communities are well documented in the inscriptional evidence for the late Roman period. A tally of that documentation may be found in Lightstone, “Roman Diaspora Judaism,” 345–77. 23  This paper’s summary of the two designated types of evidence draws heavily on my analyses in Jack N. Lightstone, Mishnah and the Social Formation of the Early Rabbinic Guild: A Socio-Rhetorical Approach (Waterloo: Wilfrid Laurier University Press, 2002) and further extrapolates the observations made in that book. In a sense, and to some extent, this question and the analyses and arguments of this paper constitute a type of “mirror-image” of the questions, analyses, and issues that drive the work of Elizabeth Shanks Alexander’s work. See both, Alexander, “The Fixing of the Oral Mishnah,” 100–139, and Alexander, Transmitting Mishnah, 1–30. One could recast her research focus accordingly: What effects did the “oral” study of Mishnah have on the evolution of the text of Mishnah and its ultimate “fixity”? Understandably, then, some of the same rhetorical-literary conventions exhibited in Mishnah play heavily in her work and in mine as evidence, but on the surface, the search for effect and cause or just influence is in opposing directions. While it is beyond the scope of this paper to provide a more complete assessment of Alexander’s theses, conceptual framework, and methods, I am inclined toward two highly general assessments. One, both she and I have articu-

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­centrality of Mishnah study within the nascent rabbinic group. Evidence of the latter type allows us to glimpse the probable socio-cultural impact and meaning of Mishnah study in the formation of an early rabbinic social identity or “professional” profile. Before summarizing these two types of evidence, I wish to state that I will not consider in this paper evidence concerning what institutionalized, organized forms of rabbinic education existed before, at the time of, or in the decades and centuries immediately following the authoring of Mishnah. This matter, in my view, has been well researched for more than 40 years, commencing with the work of David Goodblatt.24 The evidence and subsequent scholarship on this topic have been more recently reviewed and reassessed by Jeffrey Rubenstein.25

lated complementary, not opposing, phenomena. Two, after a close reading of her work, it seems to me she must start with the premise that Mishnah was composed by a process of oral transmission in order to show the effects of oral performance on the very composition of the Mishnah text, not just argue that Mishnah after its production was promulgated and studied via an oral performative process, which kept the text somewhat fluid for a period. From the point of view of method and evidence, the former (creation via oral transmission, with embedded rhetorical impact) is a much more difficult hill to climb, the latter (oral retelling/ rehearsal) is not, even if both are possibilities. I suspect that one of the side effects of asserting the former position as well as the later, versus asserting only the latter, has to do with how one views Tosefta, its purpose and its composition. At the risk of putting words into Alexander’s mouth, at times I have the impression she sees Tosefta (or its materials) as the first “Mishnah” that in the end was supplanted by the extant Mishnah, rather than viewing Tosefta as the earliest post-Mishnaic composition that reflects something of how the Mishnah was received and studied, and which served the study of Mishnah. Again, both views are not necessarily logically incompatible, but the former is the steeper hill to climb as regards method and evidence. 24  David Goodblatt, Rabbinic Institutions in Sassanian Babylonia (Leiden: Brill, 1975). 25  Jeffrey L. Rubenstein, “Social and Institutional Settings of Rabbinic Literature,” in The Cambridge Companion to the Talmud and Rabbinic Literature, ed. Charlotte Elisheva Fonrobert and Martin S. Jaffee (New York: Cambridge University Press, 2007), 58–74.

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Extra-Mishnaic, Early Rabbinic Evidence for the Centrality of Mishnah Study to the Inner-­Group Life of the Early Rabbinic Social Formation Let me begin with the centrality of Mishnah study in the early rabbinic movement. For the most part, evidence supporting this claim comes, as one might expect, from sources external to Mishnah itself, if one is of the view that “Mishnah” Tractate Avot is a later addition to Mishnah—added, perhaps, some half-century later. Avot (The Fathers), in form and substance, might well be characterized as a distinctively rabbinic version of Israel’s wisdom literature. At one level, Avot is a collection of wisdom teachings with a characteristically rabbinic ethos.26 The text touts the importance of Torah study and associated rabbinic discipleship, and it contextualizes other wisdom-type advice about the good life and traits of the sage within that frame. At another level, particularly in the first several chapters, Avot establishes a pedigree for rabbinic teachings and tradition, and, therefore, in effect, provides an authoritative pedigree for Mishnah, when later—perhaps as early as the mid-third century—Avot is inserted among Mishnah’s tractates. That insertion in effect declared Mishnah to be Torah, and Mishnah study to be Torah study. But, taken on its own, outside of its current placement among Mishnah’s tractates, Avot is not a panegyric for Mishnah study, specifically, but it is for Torah study and rabbinic discipleship generally. However, Avot de Rabbi Nathan (AVRN), an elaboration and expansion of Avot, contains passages that explicitly designate the core curriculum of rabbinic study, as in AVRN (version a) 8:1 (my translation, AVRN’s citation of Avot in boldface type): AVRNa 8:1 A. Joshua b. Perahiah and Nithai the Arbelite received [the transmitted Torah] from them. B. Joshua b. Perahiah says, 1. “Appoint for yourself a rabbinic master [as a teacher] (rav); 26  See Daniel Bernard, “Listing and Enlisting: The Rhetoric and Social Meaning of Tractate Avot.” PhD diss., Concordia University, Montreal, 2008.

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2. “and acquire for yourself an associate [with whom to study]; 3. “and judge every person as meritorious [on balance, that is, give everyone the benefit of the doubt].” C. “Appoint for yourself a rabbinic master.” How so? D. This teaches that one should appoint for oneself a rabbinic master [that is, one should not flit from one rabbinic master to another] [with whom to study on a] regular basis. E. And one should learn from him scripture, and Mishnah, and legal midrash, and aggadot [that latter being edifying tales about/from the rabbis].27 The order of the mandated curriculum at AVRNa 8:1:E is not arbitrary. Mishnah’s primacy is exceeded only by biblical Scripture itself. And Mishnah study is preeminent over other substance of rabbinic learning. Nor is it fortuitous that after Mishnah in the list comes “legal midrash” (halakhic midrash), the extant rabbinic compositions of late antiquity that serve to argue the necessity of a close reading of Scripture, in which no element of a biblical verse is superfluous, this in order to derive rabbinic law (halakhah). Jacob Neusner, among others, has argued that halakhic midrash functioned to temper the ascendency and primacy of a solely logical-­analytical approach to the study of Mishnah’s substance.28 The perceived need for such a corrective serves to bolster our claim. 27  The dating of Avot de Rabbi Nathan (AVRN) has been much disputed by modern scholarship. A century ago, the scholarly consensus was that the AVRN was compiled sometime in the seventh to ninth centuries CE. In the early 1970s, A. J. Saldarini undertook a careful comparison of the two recensions of AVRN and Avot. He concluded that in all probability early versions of AVRN, likely circulating in oral form, were almost contemporaneous with early versions of Avot, dating from near (or perhaps just prior to) the time of Mishnah’s authoritative composition at the turn of the third century CE. Saldarini also points out that all recensions of AVRN take pains to attribute traditions to rabbinic authorities contemporaneous with Mishnaic sages (Tannaim), save for three exceptions that prove the rule. One must be cautious in drawing conclusions from the latter observation, because of a penchant for anachronistic attribution to earlier authorities in rabbinic literature. My own view is that in its earliest version(s) AVRN likely predates the authoring of the Palestinian Talmud sometime from the mid-fifth century to mid-sixth, and so sits in the period bounded by Avot in the mid-third century and the Palestinian Talmud. See A. J. Saldarini, The Fathers According to Rabbi Nathan (Avot de Rabbi Nathan) Version B: Translation and Commentary (Leiden: Brill, 1975), 1–16. 28  Jacob Neusner, Uniting the Dual Torah: Sifra and the Problem of the Mishnah (New York: Cambridge University Press, 1990). See also, Jack N. Lightstone, The Rhetoric of the

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Similar to the assertion in AVRNa 8:1 about the primacy of Mishnah study is another found in a baraita tradition—a tradition purported to come from authorities outside of, but contemporaneous with, those of the Mishnah—cited in the Babylonian Talmud (b. B.M. 33a). But in contrast, b. B.M. 33a seems to register the necessity to re-assert the primacy of Mishnah study in the face of the increased stress on the study of post-­ Mishnaic Talmudic traditions. b. B.M. 33a: Our Rabbis taught: Those that occupy themselves [just] with [the study of] scripture are of limited value; with [the study of] Mishnah [but not of subsequent rabbinic teachings] are certainly of value and will be recompensed [for their study]; with [the study of] Talmud, nothing is of greater value. But always pursue the [study of the] Mishnah more than the [study of the] Talmud.29

But, of course, the most compelling evidence external to Mishnah of the centrality of Mishnah study to the interior life of the group comes from the following two fronts. (1) At the turn of the third century and in the subsequent several centuries, the rabbi or would-be rabbi was expected to have memorized Mishnah, and serving groups of masters and students were a company of official memorizers of Mishnah (i.e., the Tannaim), who were living repositories of the textual tradition.30 (2) Entire Babylonian Talmud: Its Social Meaning in Context (Waterloo: Wilfrid Laurier University Press, 1994), chapter 4. See also Jack N. Lightstone, “Form as Meaning in the Halakhic Midrash: A Programmatic Statement,” Semeia 27 (1983): 23–36. 29  This is my own translation, which is influenced by that of Joel Zaiman. For his, see “The Traditional Study of the Mishnah,” in The Modern Study of the Mishnah, ed. Jacob Neusner (Leiden: Brill, 1973), 3. Similar views of the place of Mishnah in the early rabbinic core curriculum are expressed in Avot 5:21, but Avot 5:21 together with Avot 6 are generally agreed to be later additions to Avot. In this last regard, see H. Albeck’s commentary in Shishah Sidre Mishnah: Seder Neziqim, ed. H.  Albeck (Jerusalem and Tel Aviv: Mosad Bialik and Dvir, 1953), 380, n. 20. 30  See Jaffee, Torah in the Mouth; see also Jaffee, “Oral Tradition in the Writings of Rabbinic Oral Torah: On Theorizing Rabbinic Orality,” Oral Tradition 14, no. 1 (1999): 3–32. See Alexander, “The Fixing of the Oral Mishnah,” 100–139; Alexander, Transmitting Mishnah, 1–29, 174–75. See also David Kraemer, “The Mishnah,” in The Cambridge History of Judaism: Volume 4, The Late Roman Rabbinic Period, ed. Steven S.  Katz (New York: Cambridge University Press, 1984), 299–315, cf. 313, 314. n.13, which references David Weiss Halivni, “The Reception Accorded to R. Judah’s Mishnah,” in Jewish and Christian Self-Definition: Aspects of Judaism in the Greco-Roman Period, vol. 2, ed. E.  P. Sanders,

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literary-­rhetorical genres of rabbinic traditions and study materials were collected or authored as companions to Mishnah study under the two generic designations of beraitot (or tosafot) and gemarot, with the Mishnah text providing the only overarching organizing structure31 for the eventual compilation of these materials into the extant Tosefta, Palestinian Talmud, and Babylonian Talmud. In summation, briefly, the claim that Mishnah study and Mishnah mastery were central to the inner group life of the early rabbinic group from the turn of the third century CE and over the subsequent several centuries is very much an over-determined claim, based on the extra-Mishnaic evidence from late antiquity.

Intra-Mishnaic Evidence and the Nature of Inner-­Group, Normative Traits Modeled and Re-enforced by Mishnah Study In a preceding section, I broached the question, “What skills or traits of mind, on the one hand, and what social/professional relations, on the other, are the requisites of, or are engendered by, life-long devotion to Mishnah study?” To some degree, the answer to these questions is reflected in the major post-Mishnaic compilations, the two Talmuds, organized as commentaries of sorts on Mishnah.32 But, as stated earlier, if we are A. I. Baumgarten, and A. Mendelson (Philadelphia: Fortress Press, 1981), 204–12. See also Steven J. Fraade, “Introduction to the Symposium,” 221–23. On the oral rehearsal of rabbinic traditions as a superior act of piety for the rabbi to participation in the synagogue liturgy and listening to public reading of Scripture during the liturgy, Jacob Neusner is apt to cite the tale about R. Sheshet conveyed in b. Berakhot 8a; see Jacob Neusner, “Rabbis and Community in Third Century Babylonia,” in Religions in Antiquity: Essays in Memory of Erwin Ramsdell Goodenough, ed. J. Neusner (Leiden, Netherlands: Brill, 1968), 438. 31  A point also made by Jaffee in Jaffee, “Oral Tradition,” 3–32, and by Alexander in Alexander, “The Fixing of the Oral Mishnah, 100–139”; Alexander, Transmitting Mishnah, 174–75. 32  And to some extent they are reflected, although less explicitly, in materials in the Tosefta, which serve to ramify correlative sections of Mishnah in the guise of supplementing Mishnah. I realize that in making this claim I am implicitly taking a stand on the literary relationship between Tosefta and Mishnah, or, at a minimum, between Mishnah and materials that came to be included in Tosefta. See Jacob Neusner, Judaism, the Evidence of the Mishnah (Chicago: University of Chicago Press, 1981), and Jacob Neusner, The Mishnah: An Introduction (New York: Aronson, 1994). Compare the position argued by Judith Hauptman over the course of her book, Rereading Mishnah. See also the position defended in Alberdina Houtman’s vol-

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interested in the nascent rabbinic group at the turn of the third century, when Mishnah and Mishnah study were initially promoted, and in the decades or the century immediately following, we must look principally to the Mishnah itself for answers, and, specifically, at its most pervasive literary and rhetorical features at both the macro and micro levels. It is these traits that would have confronted the student of Mishnah on a regular basis and placed specific demands upon the student’s resources, intellectual and otherwise. Moreover, the acquisition of these resources bespeaks, indirectly, of a social network in which they may be accessed and in which they are valued.33

ume, Mishnah and Tosefta: A Synoptic Comparison of the Tractates Berakhot and Shebiit (Tübingen: Mohr Siebeck, 1996); Houtman’s introduction provides a good summary of the scholarly debate in the modern period about the nature of Tosefta and about Tosefta’s relationship to Mishnah. The recent scholarly literature positing some version of the thesis that some or much of Tosefta’s materials predate Mishnah includes: Joshua Kulp, “Organizational Patterns in the Mishnah in Light of their Toseftan Parallels,” Journal of Jewish Studies 58, no. 1 (2007): 52–78; Judith Hauptman, “Does the Tosefta Precede the Mishnah? Halakhah, Aggada, and Narrative Coherence,” Judaism 50 (2001): 224–40; “The Tosefta as a Commentary on an Early Mishnah,” Jewish Studies, Internet Journal 4 (2005): 109–132; Shamma Friedman, Tosefta Atiqta, Pesah Rishon: Synoptic Parallels of Mishna and Tosefta Analysed with a Methodological Introduction (Ramat Gan: Bar Ilan University Press, 2002); “The Primacy of Tosefta to Mishnah in Synoptic Parallels,” in Introducing Tosefta, eds. Harry Fox and Tirzah Meacham (New York: Ktav, 1999), 99–121. A similar position on Tosefta may be found in Alexander, Transmitting Mishnah, 49–54. 33  What follows in this section largely reproduces the lion’s share of section IV of a paper I presented in July 2016 to the Research Group on “Sociological and Anthropological Approaches to the Evidence of the Mishnah” at meetings in Leuven, Brussels, the European Association of Biblical Studies (EABS); the paper is entitled “The Bases for Social Cohesion and Group Identity of the Early Rabbinic Guild: What does the evidence of the Mishnah show?” I rely throughout the sections that follow on my own research published in Lightstone, Mishnah and the Social Formation, cf. chapters 2 and 5. See also Jack N. Lightstone, “Whence the Rabbis? From Coherent Description to Fragmented Reconstructions,” Studies in Religion 26, no. 3 (1997): 275–95. The influence on my own thought processes of Jacob Neusner’s studies of Mishnah is evident in my Mishnah and the Social Formation, chapter 5; see Jacob Neusner, Judaism, the Evidence of the Mishnah, and Jacob Neusner, The Mishnah: An Introduction. In the intervening period, Jaffee’s work (Torah in the Mouth and “Oral Tradition”) on the topic of Mishnah’s orality has increasingly impacted my thinking about Mishnah’s traits, as has Alexander, “The Fixing of the Oral Mishnah,” 100–139, and Transmitting Mishnah, 1–40.

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Macro-Literary Traits: Mishnah’s Topical Agenda and Scripture Mishnah’s content is legal in nature, spanning sacerdotal ritual and priestly gifts, religious-festive practice, purity maintenance, some civil and family law, and certain judicial processes, torts, and criminal law. However, while the treatment of many subtopics is extensive and seemingly exhaustive, for example, the signatory requirements for writs of divorce, Mishnah’s coverage of a number of its grand themes (the subject matter of its “tractates” and “orders”) is not; rather, coverage is episodic. By what heuristic standard do I make such an assertion? Mishnah’s treatment of many of its grand topics would require much in the way of complementary and supplementary materials even to begin to approach the comprehensiveness that one would expect of a “working” law code for a “living” Judaic society. To satisfy the latter’s requirements, whole additional chapters would have to be added to many of Mishnah’s thematic tractates, and entire additional tractates would be needed.34 This contrast between apparent exhaustiveness at the level of many sub-topics and “gross lacunae” at the level of Mishnah’s topical agenda is an important datum,35 to which I will return. Moreover, while Mishnah sometimes articulates overarching legal principles from which detailed law follows, more often it does not. Rather, the reader is left to induce the law or legal principles from a series of specific rulings on minutia—that is, unless knowledge of the former type is assumed to already be part of the Mishnah student’s toolbox in some fashion—also a matter to be further discussed later in the chapter. One feature of the spectrum of Mishnah’s major topical themes is that while some of Mishnah’s legal content is relevant to Palestinian Judaic life at the time of Mishnah’s promulgation at the turn of the third century, a great deal of Mishnah’s substance concerns a Judaic world and society that 34  Within the history of Rabbinic legal texts, one need only compare Mishnah to the breadth of Maimonides’ Mishneh Torah (twelfth century), or to Jacob b. Asher’s Arba’ah Turim (thirteenth century) and Joseph Karo’s Shulkhan Arukh (sixteenth century). For indication of the validity of this observation consider that Tosefta, beraitot in the Talmuds, and the later “minor tractates” exhibit a tendency to complement and complete Mishnah’s topical agenda. 35  This is an observation made in passing by Jaffee, in “Oral Tradition,” 3–12, for quite other purposes and interpreted in relation to a quite different set of questions than those addressed in this paper.

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disappeared before Mishnah’s authors undertook their work. When Mishnah was composed near the turn of the third century CE, the Jerusalem Temple, its associated institutions (its courts and tribunals), and its leadership (priests, Levites, and temple scribes) had been defunct for more than a century. But one can barely surmise this from Mishnah’s substantive agenda in many of its tractates. Other parts of Mishnah’s agenda are, however, completely relevant to the post-destruction period and assume none of the Temple-era’s institutions in their articulation (e.g., m. Megilah and m. Eruvin). On still other occasions Mishnah’s substance proffers odd-ball anachronisms, such as when Mishnah enjoins (rabbinic) sages to give instructions to Temple priests, because only the latter, by law, may act, but only the former know with accuracy what the priests must do (e.g., m. Yoma). Social scientists and humanists (particularly historians) are used to studying evidence in historical time to provide important context. Synchrony and diachrony are important dimensions in scholarly analysis.36 But the social world that emerges across Mishnah’s agenda and topics is curiously “unstuck in time,” to use the novelist Kurt Vonnegut’s term.37 As a result of being so “unstuck,” the world that Mishnah’s content ­adumbrates in law is an “imagined” one. On the one hand, that world very likely never existed in the manner that Mishnah law portrays, and, on the other, it is a world that did not and could not exist as a whole, as a religio-­cultural system, at the time of Mishnah’s production. I use words such as “whole” and “system” for specific reasons and as important qualifiers. Three reasons are foremost, among potentially others: First, because my own work and that of my teacher, Jacob Neusner, as well as that of many of his other former students, strongly support the claim that an integrated religio-cultural system underpins Mishnah throughout.38 To a large extent, it is the system that also underpins the 36  A point made very early on about social facts in the writings of Émile Durkheim; see above n.5: Émile Durkheim, The Rules of Sociological Method. 37  Kurt Vonnegut Jr., Slaughterhouse Five, or The Children’s Crusade: A Duty-Dance with Death (New York: Delacorte, 1969). 38  See Lightstone, Mishnah and the Social Formation, chapters 1 and 5; see Neusner, Judaism, the Evidence of the Mishnah, 167–229; and Neusner, The Mishnah: An Introduction, 40–199. However, to say that a vision of a “system” underlies Mishnah is not to say that Mishnah is a systematic articulation of that vision. It clearly is not, as I have already intimated. Moreover, it is easy to overstate the systemic qualities of Mishnah as a unified literary work, a point emphasized by Jaffee in “Oral Tradition,” 12–26. Jaffee proposes that the

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Pentateuch, which I argue elsewhere in this chapter is the core touchstone of Mishnah’s substantive agenda, even though Mishnah more often than not tends not to cite its dependence on Scripture. Second, and in a completely opposing vector, I use the terms “whole” and “system,” because I do not wish to imply that all of Mishnah’s content is irrelevant or un-­ implementable at the turn of the third century. In theory, any Mishnah law that does not require the Temple cult and its administration is implementable in principle. Earlier, I pointed to tractates like Megilah and Eruvin. But one may also look to passages in many other tractates, including, for example, in Gittin, Kiddushin, Berakhot, and others. And indeed, when the rabbis came to wield sufficient power and authority—a state of affairs that emerged well after Mishnah’s production—the rulings of such tractates were taken as the basis for normative practice within Jewish communities. One has only to look at the bases in Mishnah for significant sections of the great medieval rabbinic codes. Third, and perhaps the most intriguing for some social historians of late Roman Palestine, while Mishnah’s “whole system” was not implementable at the time of Mishnah’s production, at a number of junctures in the text, those who produced Mishnah could not help but reflect in passing the historical or social reality of their times. Why? At these junctures, it was likely more difficult for Mishnah’s authors to “imagine” things to be otherwise than they actually were in the world around them. For example, one of the foundational underpinnings of Mishnah tractates Shabbat and Eruvin is the authors’ conceptual model of the typical layout of a late second-century Palestinian town or city, when translating biblical Sabbath prohibitions, which do not adequately take account of urban life, into an urban setting. Mishnah’s framers, by the way, tell us much about the towns and cities of their day, because it is much less likely that they are trying to imagine the structure of towns and cities of ancient Israel. Not so, by contrast, when Mishnah refers to cities of refuge enjoined in the Pentateuch itself.39 The same may be said for tractates dealing with agricultural gifts, like tithes and the heave compositional processes that produced Mishnah and other early rabbinic texts might better be understood as a type of anthologization. 39  With respect to urbanization in late second-century Palestine and its reflection in both Mishnah and Tosefta, see my presentation and analysis of the evidence in Jack N. Lightstone, “Urban (Re-)Organization in Late Roman Palestine and the Early Rabbinic Guild: What Toseftan Evidence Indicates about the City and its Institutions as an Emerging Salient Category in the Early Rabbinic Legal (Re-)Classification of Space,” Studies in Religion/ Sciences Religieuses 36/3–4 (2007): 421–25.

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offering, given to the poor and the Levitical-priestly caste. Here, Mishnah’s framers reflect the modes of agricultural production of their day, because at these junctures they are less likely or simply less able to “imagine” other ones.40 So, to summarize our observations thus far, Mishnah’s treatment of its subject matter oscillates between the exhaustive, when dealing with subtopics, and the highly episodic and incomplete, when covering themes relevant to a living Judaic community. Mishnah concerns itself with social, cultural, and religious norms and institutions, which as a cultural system did not exist at the time of Mishnah’s production and that likely never existed in the form that Mishnah gives it in law. I remarked earlier that in terms of substance, Mishnah’s content seemed “unstuck in time.” Mishnah is not, however, as unstuck in topographical space. With so much of Mishnah’s content referring to a Jerusalem-­ Temple-­ centered praxis, the geography of the “imagined” world of Mishnah clearly has its axis in Jerusalem and in the Land of Israel. Since the early rabbinic movement emerged in Palestine, Mishnah may simply reflect the decidedly Roman-Palestinian social location and social identity of its authors and its initial intended users.41 I do not think such reasoning is compelling. At best, it is an incomplete explanation. Mishnah’s Land-of-Israel and Jerusalem-Temple centrism is at the same time an epiphenomenon of another abiding literary trait of Mishnah—namely its pervasive, first-order dependence upon biblical-­ Pentateuchal law, which is itself Jerusalem-Temple centric.42 Permit me to elaborate. Mishnah is faithfully grounded in the laws and injunctions of the Pentateuch, when and where topically there is corresponding scriptural material. Chapter after chapter, in tractate after tractate, Pentateuchal injunctions underlie Mishnah passages. The former are authoritative axioms of the latter throughout Mishnah, even though nine times out of ten—I mean this rhetorically, not statistically—the relevant Scripture is neither cited nor alluded to. At times—some might say, not infrequently— Scripture is cited as a proof text. But episodic proof texting is very 40  On Mishnah-Tosefta and agricultural realia in late Roman Palestine, one need only refer to the classic work by J. Feliks, HaHaqla’ut BeErez Yisrael BiTqufat HaMishhah VeHaTalmud [Agriculture in Palestine in the Period of the Mishna and Talmud] (Jerusalem: Magnes Press, 1963). 41  A good example of this is the first chapter of Mishnah, Tractate Gittin, which concerns writs of divorce issued outside of the Land of Israel for us by parties inside the Land of Israel. The entire composition assumes this uni-directionality. 42  For example, see Deut. 12 and 14:22ff.

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different than systematic citing or than pointing to the underlying scriptural basis of passage after passage in tractates and chapters; the latter rarely happens. Yet without a thorough knowledge of Pentateuchal injunctions, Mishnah’s content is all but incomprehensible. That knowledge is assumed to be possessed by the reader, or it is assumed that the reader has immediate and continuing access to someone who does have that knowledge. We will hold that thought for later, as we have held others, but I would recall here in passing the extra-Mishnaic evidence of Late Antiquity (referred to earlier) about the hierarchy of the rabbinic core curriculum in the several centuries following Mishnah’s promulgation.43 The primacy of Mishnah study was exceeded only by the study of Scripture. To openly assert the inverse would be ideologically unthinkable in any post-EzraNehemiah Judaic community. Mishnah’s often undocumented and unstated dependency on Scripture is odd in two other, diametrically opposing ways.44 In some cases, Mishnah passages seem to deal with an uncited scriptural injunction, as if no intervening centuries of practice or interpretation existed—as if Scripture were composed a mere day before the Mishnah passage in question, and the latter is a first attempt at understanding the former. For instance, m. Menahot 5:8 proffers a dispute concerning what the difference is between a mahkreshet (“a firepan”) and a mahvat (“a firepan”). Both terms are biblical (see Lev. 7:9–10), and Mishnah at this juncture is engaged in effect in first-order exegesis (or eisegesis) of biblical terms—to sort out a fuzzy matter in the scriptural injunctions. But the scriptural passages were not composed the day before the Mishnah passage. Surely, more than five centuries of practice in the Jerusalem Temple had long settled the issue in question. So, either Mishnah’s editors were unaware of five centuries of practice, or, far more likely, the established practice was beside the point,  As in AVRNa 8:1 and Avot 5:21.  At first glance, so compellingly odd ideologically is Mishnah’s explicit literary penchant not to systematically document its dependence on Scripture that David Weiss Halivni, in his magisterial work covering the range of early rabbinic legal literary genres, concluded that substance antecedent to Mishnah was a now lost literary genre, some form of earlier halakhic midrashic literature, that did explicitly derive Mishnaic teachings from Scripture. The producers of Mishnah, in his view, stripped away those scriptural exegetical parts to produce the Mishnah genre we now possess, and post-Mishnaic rabbinic writers recreated, subsequently, a halakhic midrashic literature. See David Weiss Halivni, Midrash, Mishnah and Gemara: the Jewish Predilection for Justified Law (Cambridge: Harvard University Press, 1986). I agree with Jaffee’s elegant comment on Halivni’s claims: Halivni has the genres right, but the historical order wrong (see Jaffee, “Oral Tradition,” 3–12). 43 44

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given Mishnah’s purpose for its intended readership, a core topic of the latter sections of this chapter. At the other end of the spectrum, Mishnah is, at times, based on Scripture (still uncited), but one or several (also) unstated premises or postulates may logically intervene between the datum in Scripture and the starting point in Mishnah’s treatment of a topic. In such instances, one may readily surmise what (uncited) Scripture is the premise, but the starting point of the relevant Mishnah is two or three logical removes from or beyond the premise in Scripture, and the intermediate logical postulates or suppositions are nowhere to be found in Mishnah (or elsewhere in Scripture, for that matter). Since without these intermediate postulates one cannot even begin to understand the Mishnah passage, the reader, again, is assumed to already know them or to have ready access to someone who does. What, then, might we begin to see reflected about a specific community, the community of those who first produced and studied Mishnah as a summum bonum of their social formation? First, that they valued the utopian, hypothetical, and theoretical over the historical. Second, their interest was directed more to the very concrete and specific, as opposed to the articulation of general legal principles or deduction from those principles. Third, in the production and study of Mishnah, the exhaustive attention to the specific was far more important than being comprehensive; exemplifying how to articulate and fully ramify some topics outweighed the value of covering all topics to produce a usable code. Fourth, much in the way of anterior knowledge was demanded of the reader to even start understanding Mishnah, since many of the logically essential premises to reading a Mishnah passage or “chapter” are not there in the text. Fifth, and returning to the first observation, the world of/in Scripture mattered more than the world since; and the identity of the Mishnah’s producers and users was grounded and legitimated in their command of scriptural law. On these bases, one can discern, as an interim proposition, that Mishnah reflects a community of scholarly elite, whose members are expected to have, or to acquire, a considerable body of antecedent knowledge. Moreover, Mishnah students practice (in entirely hypothetical-theoretical acts of imagination focused on the world defined by biblical law) the

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application of that knowledge to the exquisitely concrete and specific.45 At first glance, based on macro-literary traits of Mishnah, we are dealing with a community of scholarship that values and inculcates quite specific capacities among its members.

Micro-Rhetorical Traits: Inculcating “High-Grid” Taxonomical Vision A number of micro-rhetorical traits of Mishnah seem consistent with, and further bear out, these interim conclusions. First, most of Mishnah’s language is both highly formalized and decidedly laconic—economical to the extreme.46 This is evident to any first-time translator of Mishnah, who must continuously interpolate (often in square brackets) the language required to turn a Mishnaic declarative sentence into a declarative sentence in English, French, German, and so on. A prime illustration can be found in m. Bekhorot 1:1a. I chose this passage not only because it is, in my view, typical of so much of Mishnah but, specifically, because it is the opening pericope of the opening chapter of a tractate of Mishnah. In other words, there is absolutely nothing that precedes this passage that provides any additional intelligible context for the reader. What the first-time reader of m. Bekhorot 1:1a sees (or more precisely, “does not get”) is all that the reader must be provided from somewhere or someone outside Mishnah itself to interpret/understand the pericope for him/herself. Below, then, I present two translations of m. Bekhorot 1:1a. The first represents Mishnah’s language as closely as I am able, in its fully laconic style; the second provides interpolations (in square brackets) to make the passage (more) intelligible.47 m. Bekhorot 1:1a (as is, without interpolations) 1. He who purchases the fetus of an ass of a Gentile, 45  Again, this is a trait of Mishnah captured by Jacob Neusner when he called the religion of Mishnah, “a religion of pots and pans.” While I remember him using the phrase in the early 1970s, in the late 1980s, it became the title of one of his books: Jacob Neusner, A Religion of Pots and Pans? Modes of Philosophical and Theological Discourse in Ancient Judaism: Essays and a Program (Atlanta: Scholars Press, 1988). 46  See Jacob Neusner, A History of the Mishnaic Law of Purities, Part 21 (Leiden: E. J. Brill, 1977), 164–246. 47  Both translations are my own and draw on my translations in Jack N. Lightstone, The Rhetoric of the Babylonian Talmud, 79, 175.

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. And he who sell to him, 2 3. Even though it is not permitted. 4. And he who forms a partnership with him, 5. And he who receives from him, 6. And he who gives to him in trust— 7. is exempt from the law of the firstling, 8. as it is said, “Of an Israelite” (Num. 3:13), 9. but not of others. m. Bek. 1:1a (with my interpolations) 1. He [an Israelite] who purchases the fetus of an ass of a Gentile[, and the fetus, when born, if it turns out to be male, will be a firstborn of the ass owned by the Gentile], 2. And he [an Israelite] who sells to him[, the Gentile, the fetus of an ass of the Israelite, and the fetus, when born, if it turns out to be male, will be the firstborn of the ass owned by the Israelite], 3. Even though it is not permitted [for an Israelite to contract such a sale to a Gentile]. 4. And he [an Israelite] who forms a partnership with him [the Gentile, so that they co-own the fetus of an ass owned by either the Gentile or the Israelite, and, subsequently, when the fetus is born, it is both male and a firstborn of the ass], 5. And he [an Israelite] who receives [a pregnant ass] from him [a Gentile, and, subsequently, when the fetus is born, it is both male and a firstborn of the ass], 6. And he [an Israelite] who gives [a pregnant ass] to him [a Gentile,] in trust [and, subsequently, when the fetus is born, it is both male and a firstborn of the ass]— 7. [in all of the foregoing cases, the fetus, when born] is exempt from the law of the firstling [of unclean species as enjoined in the biblical scriptures]. 8. as it is said, “Of an Israelite” (Num. 3:13), 9. but not of others. The contrast between the two versions is stark and typical of so much of Mishnah. As we can see from our exemplary passage, m. Bekhorot 1:1a, the very micro-literary-rhetorical traits of Mishnah’s language bespeak of a document, the study and understanding of which is impossible outside

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of an organized social context in which vital information is learned that renders Mishnah’s content intelligible.48 That requisite information is of several sorts. One sort is captured in the question, “What is Mishnah actually talking about in this passage?” That is, Mishnah does not provide enough information to surmise the circumstances that together comprise the often-hypothetical cases upon which Mishnah proffers a ruling. The cases (the “protases” of the sentences in m. Bekhorot 1:1a) cannot be understood without the explicatory interpolations, and these must come from somewhere or someone. The other sort is captured in the question, “What background law must one know to make sense of the ruling or rulings (the ‘apodoses’) that m. Bekhorot 1:1a offers?” In the latter instance, one must know the biblical injunctions about the gift of the firstborn males, of humankind and of clean and unclean animals. And one must also know that Mishnah, although not the biblical text, further assumes that the biblical laws concerning firstborn males of unclean species apply only to the ass. Those of us who have spent years reading Mishnah and related documents forget or are no longer cognizant of the significant knowledge gap that the un-interpolated text of Mishnah presents to the novice reader, a gap that had to have been bridged by some organized social context and institutions, of which the novice reader would have had to have become a part, studying, then, together with resident experts. Primarily post-Mishnaic rabbinic documents talk specifically of such Palestinian-rabbinic institutions, notable among them, the House of Study (bet ha-midrash), and perhaps it is anachronistic to project these back into the period in which Mishnah was first authored, promulgated, and studied. We can suspend judgment on that issue for the purpose of this chapter and its argument.49 My point rather is this: we do not need these post-­ Mishnaic sources to reasonably conclude that a social institution or institutions of some facilitating type existed at the core of the organization of the rabbinic movement at the time of Mishnah’s initial promulgation in order to provide what the novice reader of Mishnah needed to gain sufficient mastery. At this juncture, we may say, first, that the very 48  Some may wish to argue at this point that Mishnah’s laconic style is merely a by-product of its composition for oral transmission, as with other literary traits of Mishnah. But such an argument does not undermine the point I am making in the least. It matters not at all why Mishnah is this way or how it came to be this way. Rather Mishnah is this way, with attendant consequences for the ancient Mishnah-student, which I will continue to detail later. 49  Again, I refer the reader to Jeffery Rubenstein’s survey of the evidence on early rabbinic institutions in Rubenstein, “Social and Institutional Settings,” 58–74.

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micro-­literary-­rhetorical traits of Mishnah itself beg the existence of such institutions by indirection (derekh ha-gav). It is warranted, preliminarily, to conclude from such evidence that (1) entry into the early rabbinic movement and (2) passage from a more or less novice status to full membership were via study in some such organized setting. Moreover, we may further hypothesize that the passage from the status of novice to the status of full membership involved becoming an “autonomous,” “self-sufficient” reader and analyst of Mishnah, insofar as the mastery of Mishnah was the summum-bonum activity of the group. Second, not only do Mishnah’s micro-literary-rhetorical traits reflect and, indeed, beg a specific type of knowledge acquisition in the passage from novice to member, but they also foster the inculcation of particular types of analytic skills, once that antecedent knowledge is mastered. Again let me demonstrate this point using m. Bekhorot 1:1 (although very many Mishnah passages would do equally well). For the purposes of this illustration, we must play a mental game. We must strip sections 8 and 9 from m. Bekhorot 1:1a. Sections 8 and 9 adduce a scriptural proof text for the ruling at section 7. My excuse for this request is this: more often than not such an appeal to a scriptural proof text would not be included in a typical Mishnah passage. But my reason for asking that you bracket out the appeal to Scripture is that it helps make the point I have in mind when one looks at the “raw” un-interpolated text of m. Bekhorot 1:1a. One will note that there is not one case, but five cases that are the subject of the ruling at section 7. The five cases are created, or more appropriately, “spun out,” by simply varying one word in each of sections 1, 2, 4, 5, and 6. That word in each case is the use of the heh-emphaticus together with a verb in the third-person, singular, masculine, present-­ participial form in order to create a substantive in Hebrew: . he who purchases; 1 2. he who sells; 3. he who partners; 4. he who receives; and 5. he who gives. All other circumstances that comprise the cases are held constant: an Israelite contracting with a Gentile; an unborn fetus, the gender of which is unknown; a pregnant ass that has never before given birth to offspring. What the reader is asked to surmise is whether the stated systematic variation in the contracted activity between the Israelite and the Gentile, with

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all other variables held constant, changes the outcome. Mishnah’s answer is no, it does not. The ruling (given at section 7) for all five cases is the same. The question that is now begged, but not stated, is, “Why should the outcome be the same in all five instances?” Because as long as the Israelite does not have total, unrestricted title and control of the unborn fetus and its dame, the offspring is not subject to the law of the firstling, should the fetus end up being a male firstborn of the ass. But that general answer is not given, although it could have been proffered as a general rule at the outside. It has to be “doped out” by the reader from contemplating the five “spun-out” cases and analyzing their salient differences and similarities. If the general rule had been given at the outset by Mishnah, then the rest of m. Bekhorot 1:1a would have been, strictly speaking, unnecessary, indeed, superfluous. But it is also true, and this is my point, that the student of m. Bekhorot 1:1a would have been intellectually engaged in a very different manner. The student would have (simply) learned a rule, rather than having had to figure out the rule, or when it applied to similar but still slightly varied circumstances, or both. I could repeat this demonstration over and over again with dozens or hundreds of Mishnah passages. All examples would give similar indirect evidence of privileging of this type of intellectual engagement by reason of the micro-literary-rhetorical traits that pervade Mishnah: vary the circumstances and tell me when or whether this (biblically grounded) rule or that applies, or still applies. In m. Bekhorot 1:1a, only one variable was changed each time. Many passages in Mishnah will systematically vary, in turn, first one and then other variables to spin out more cases of increasing complexity, requiring increasingly complex intellectual engagement. In fact, we do not have to stray far in Mishnah to find such a text. M. Bekhorot 1:3 to 1:4a is an apt example. Permit me to provide a translation without any explanatory interpolations.50 m. Bekhorot. 1:3 1. An ass which had not given birth, 2. and bore two males— 3. one gives a single lamb to the priest. 4. Male and female— 5. he separates a single lamb for himself. 6. Two asses which had not given birth 50  Again, the translation is my own and is based on the one I prepared for Lightstone, The Rhetoric of the Babylonia Talmud, 177–78.

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7. bore two males— 8. one gives two lambs to the priest. 9. a male and a female, 10. or two males and a female— 11. one gives a single lamb to the priest. 12. They bore two females and one male, 13. or two males and two females— 14. there is nothing here for the priest. m. Bekhorot. 1:4a 5. One which had given birth, and one which had not given birth, 1 16. and which bore two males— 17. one gives a single lamb to the priest. 18. A male and a female— 19. one separates a single lamb for himself. Again, we may begin by asking, “What must one know of the law of the firstling as an antecedent to engaging with the ‘whys and wherefores’ of this passage?” First, biblical law declares that the firstborn males of humankind and animals, both of clean and unclean species, are holy. That holiness must be dissipated by being redeemed and transferred back to its originator, the deity, in some fashion. The firstborn male of an ass—we now know that, for Mishnah, the only unclean species to which the law of the firstborn applies is the ass—is redeemed with a lamb (a clean species), which, in turn, is given to a member of the priestly clan as his due, effectively returning it to the deity. The firstborn ass is now de-sanctified and may be used by the owner. The passage also assumes that in cases of doubt—when we do not know whether the male offspring is a firstborn— one de-sanctifies it by redeeming it with a lamb, but one need not give the lamb to the priest. When all this is understood by or conveyed to the novice reader, one may begin to contemplate the series of cases spun out before us by varying first one hypothetical factor and then another, by simple concatenation and permutation of the highly laconic terms of the extended passage. My point is, again, the literary-rhetorical features that are the atomic building blocks of extended passages demand of the student, particularly of the novice, considerable intellectual engagement. One must dope out the legal principles from a series of slightly differentiated, hypothetical cases, when one could have been given the general rules

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and principles first, rather than having to induce them. But to do this one must first inform oneself, or be informed, of the relevant biblical law and its subsequent developments, and one must mentally fill in the lacunae in Mishnah’s highly laconic language, in order to begin to comprehend the hypothetical factors that are being permuted to create cases. I cannot here provide a complete catalog of Mishnah’s micro-literary-­ rhetorical traits. However, one other is so prominent and pervasive that it warrants a fulsome discussion. It is the dispute form.51 In the dispute, the reader encounters two rulings (apodases) for a single case (protasis). The literary-rhetorical features of disputes’ protases (cases) and apodases (rulings) are typical of other passages of Mishnah, but one or more of the apodases is attributed to a named rabbinic sage, from whose authority the ruling is portrayed to stem. Generally speaking, one can identify three sub-­ species (with several variations of each) of the dispute form in Mishnah. They are the following: 1. –– –– –– ––

circumstances, ruling, Rabbi x says, ruling;

–– –– –– –– ––

circumstances, Rabbi x says, ruling, the sages say, alternative ruling;

2.

2′. –– circumstances, –– ruling, –– the words of Rabbi x, 51  The identification of the dispute form and its variations in Mishnah was a product of Jacob Neusner’s analyses of the rabbinic traditions of proto-rabbinic figures who flourished before the destruction of the Jerusalem Temple in 70 CE. It is from that point that he began to undertake what he called “form analysis.” See Neusner, Rabbinic Traditions, 3, Conclusions, 5–179.

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–– the sages say, –– alternative ruling; 3. –– –– –– –– ––

circumstances, Rabbi x says, ruling, Rabbi y says, alternative ruling.

–– –– –– –– ––

circumstances, ruling, the words of Rabbi x Rabbi y says, alternative ruling.

3′.

The circumstances (protases) and rulings (apodases) in Mishnaic disputes display the same highly laconic and concatenative and permutative literary-rhetorical characteristics as other passages in Mishnah. Disputes are constructed by the simple interpolation of: “Says/say,” or “the words of”; and “Rabbi” plus name, or “the sages.” That is it. Nothing more. Given the specific purposes of this chapter, what are we to conclude from the presence and literary-rhetorical character of disputes in Mishnah? First and most obviously, thanks in large part to the literary-formal characteristics of the dispute form, Mishnah has told us unequivocally that “full” members of the group that produced and studied Mishnah referred to themselves collectively as “the sages” and addressed individual authorities within the group by the honorific “My Lord/Master” so-and-so, for that is the most reasonable translation of the term “rabbi.” Both would be highly loaded terms in late-Roman, Palestinian-Jewish society. We may additionally read here a respect and reliance upon some specific lineage of tradition and opinion, the lineage of those named: Yohanan ben Zakkai, Eliezer ben Hyrcanus, Joshua ben Hananiah, Aqiva, Yose ben Halafta, Judah ben Ilai, and the list goes on. The adducing of named authorities is significant to this chapter’s issues, because it could have easily been otherwise from a literary-rhetorical perspective. We could have had attributions to named authorities without

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disputes. And while sometimes we have just this, it is overwhelmingly the case that attributions to named authorities appear in one or another of the variations of the dispute form. Moreover, we must also consider that it was entirely within the realm of literary-rhetorical possibility that Mishnah could have had disputes without named attributions. For example, we could have had something that displays this literary-rhetorical patterning: –– –– –– ––

protasis; apodasis; [and] there are those who say: alternative apodasis.

What, then, are we to make of the fact that (a) we have names and (b) they largely appear in highly formalized, laconically worded, disputes? Unless we wish to conclude that the number of members of the early rabbinic movement was very small in the decades leading up to the production of Mishnah (which is certainly a possibility), and that, consequently, Mishnah names virtually all early rabbis, we would be wise to consider that the named authorities in Mishnah are a subset, a particularly important and noteworthy subset of early members. These important early rabbinic VIPs, if you will, are portrayed by Mishnah as often having diametrically opposed positions. I say “portrayed,” because the laconic, formulaic, and permutative nature of Mishnah’s particular micro-literary-­ rhetorical traits makes it highly unlikely that any real, historical, early rabbinic VIP’s language is portrayed, or that “his” legal position was articulated on precisely the case as articulated by Mishnah.52 What is portrayed is that the divergent legal traditions that may have come from various early rabbinic VIPs all find their place in Mishnah’s disputes, more often without any indication of which person’s view is the correct one. A number of years ago, Shaye Cohen made essentially the same argument in proffering his “big tent” theory of the rabbinic movement’s origins.53 I accept Shaye Cohen’s view and offer an additional claim about the

52  See William Scott Green, “What’s in a Name? The Problematic of Rabbinic Biography,” in Approaches to Ancient Judaism: Theory and Practice, Vol. 1, ed. William Scott Green (Missoula: Scholars Press, 1978), 77–96. 53  Shaye J.D. Cohen, “The Significance of Yavneh: Pharisees, Rabbis and the End of Sectarianism,” Hebrew Union College Annual 55 (1984): 27–53.

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social significance and meaning of the Mishnaic dispute for the community that produced, revered, and studied Mishnah. Earlier, I wrote about the intellectual engagement required by Mishnah’s laconic language in the construction of its cases. We spoke as well of the use of concatenation and permutation of terms to generate a series of related cases, in order to test in each whether similarities outweighed differences such that one or another ruling should apply or not. Imagine now a passage in which not only the laconically stated elements comprising the case (the protasis) are varied to examine differentiation, but also the ruling is varied by the presentation of diametrically opposed outcomes in the apodases for a single protasis. The Mishnah student is, thereby, additionally invited to ask, “Why might someone legitimately rule one way in these circumstances, while someone else would legitimately rule otherwise in the same circumstances?” In other words, adding alternative rulings expands the matrix for active, engaged analysis. That the dispute begs such additionally active analytic engagement, perhaps intentionally so by Mishnah’s authors, is indicated by the use in Mishnah of the debate form, in which a dispute is followed by very laconic justifications for the disputing parties’ different rulings. Debates (unlike disputes) are less common in Mishnah. But debates are more common in post/extra-Mishnaic rabbinic sources, such as Tosefta, composed as companions to Mishnah study. This last observation, in my view, serves to bolster my claim about one important (intended?) effect of the dispute for the Mishnah student’s engagement.

Conclusions Let me now summarize and characterize the sort of Mishnah-student engagement seemingly engendered by Mishnah’s pervasive micro-­ rhetorical traits. One may describe what is demanded of the engaged student as “matrix analytics.” Across the top of the matrix are various related cases, often spun out by varying the several circumstances that combine to define the case. Down the side of the matrix is the ruling or rulings that apply in each case. Where there is a dispute, there are more items down the side of the matrix than there would be otherwise. In every “box” formed by the matrix, there is a “Yes” or a “No.” “Yes,” rule x applies; “No,” rule x does not apply. In the case of a dispute, there are more boxes with “Yes” or “No,” providing opposing positions for the same case. To understand Mishnah, the engaged student is invited to figure out why Mishnah has placed a “Yes” or “No” in each box of the matrix. Why, upon

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reflection and analysis, are discrete cases more or less similar to one another in ways that are compelling and relevant in Torah law? As one increases and permutes those elements that together define a case—take for example, m. Bekhorot 1:3-4a—one increases the number of boxes with “Yes” or “No” in them; the matrix gets larger, and, visually, the boxes smaller to fit the page. In other words, the greater the number of variables that define a hypothetical situation for which a ruling is given, the finer the gradations that differentiate one situation from another in a manner that is potentially significant in the application and ramification of Torah law. The study of Mishnah, then, prepares one to expect, recognize, and deal with—in the sense of making judgments about—such potentially highly or finely differentiated circumstances.54 Mishnah models, invites, demands, and inculcates high-grid thinking and analysis on the part of its life-long students as a professional or occupational set of skills, founded, as we have seen, on thorough knowledge of Scripture’s law and, at times, on legal traditions that intervene between the “raw” dicta of Scripture and the starting point of a Mishnaic treatment of a related matter. And we know that the study, mastery, and life-long analysis of Mishnah constituted principal activities of the inner-group life of the nascent rabbinic social formation and defined, in (large) part, “who” became qualified as a full member in the early rabbinic group. We need to know more about the positions in Roman Palestine at the turn of the third century CE to which members of this group were appointed by reason of being rabbis. That is a historical inquiry in its own right; Mishnah itself tells us little or nothing of value in this regard. But Mishnah does hint at the aspirations of the early rabbinic group—to serve as the authoritative administrators and arbiters in the organized religious, civil, and judicial institutionalized structures of Jewish society in the Land of Israel, by reason of their unique professional competencies. They aspired, moreover, to a monopoly over these positions. Have I not just described the goals of a professional guild? No evidence that I know of confirms that their broader aspirations were fulfilled in the third century, particularly their monopolistic ones. But some rabbis did fill some relevant positions, sometimes by appointment to 54  I have just defined in other terms what the late anthropologist, Mary Douglas, described as “high-grid” thinking and competence. See Mary Douglas, Natural Symbols: Explorations in Cosmology, 2nd ed. (London: Routledge, 1996). See also Mary Douglas, Purity and Danger (London: Routledge and Kegan Paul, 1966).

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them by the Palestinian patriarchate.55 Several centuries later in Palestine and Babylonia and, certainly, in the early Muslim period, they largely achieved the positions and levels of authority to which they seemed to aspire from the beginning. In conclusion, what we glimpse is the core nature of a specific social formation in the late second or early third century in Roman Palestine, that of the nascent rabbinic group. We have an indication of what turns the group’s novices into full-fledged members. We understand what knowledge and capacities are to be nurtured in that transformation. We surmise something of the expert resources the novice must access. We can see that, however particular the early rabbinic group is in these regards, it stands synchronically and diachronically within historical and social contexts in which such groups and the social institutions that support their continued existence were quite normal, even normative. These other groups (some antecedent to the rabbis in the Land of Israel itself) provided sapiential, high-literacy retainer classes—professional guilds, if you will—for their respective communities, governments, or temple administrations in the Middle East well into the Roman imperial period. And it stands to reason that the members of the early rabbinic group aspired to much the same.56 That and how they acted upon these aspirations, first in Roman Palestine and soon after in Persian-ruled Babylonia, is another topic altogether with its own challenges of evidence and methodology.

55  See Lee I. Levine, Ma’amad HaHakhamin, translated as The Rabbinic Class of Roman Palestine in Late Antiquity (Jerusalem: Yad Yitzhak ben Zvi, 1989). 56  A matter treated throughout both Lee I.  Levine, Ma’amad HaHakhamim, and Catherine Hezser, The Social Structure of the Rabbinic Movement in Roman Palestine (Tubingen: Mohr Siebeck, 1997); see also Lightstone, Mishnah and the Social Formation of the Early Rabbinic Guild, chapter 5.

CHAPTER 8

When Tosefta Was Read in Service of Mishnah Study: What Pervasive Literary-­ Rhetorical Traits of Toseftan Materials Divulge About the Evolution of Early Rabbinic Group Identity on the Heels of Mishnah’s Promulgation Jack N. Lightstone

Introduction: The Question at Hand Recalling Conclusions Based on the Evidence of Mishnah This chapter,1 a sequel to (indeed a matched pair of) the preceding one in this volume, picks up directly where the other has left off. The two studies are  The current essay is a (lightly) revised version of my forthcoming article in the Annual Review of Studies in Judaism, the Humanities and the Social Sciences, and which in the latter will be entitled “Textual Study and Social Formation, Part II: Does the Evidence of Tosefta 1

J. N. Lightstone (*) Brock University, St. Catharines, ON, Canada © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_8

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alike in the nature of the questions they address, the conceptual frame which informs the work, and the methodologies by which that work proceeds. If Mishnah and Mishnah study are, for the many reasons stated in the previous chapter, formative of the social identity of the early rabbinic group in the Land of Israel, then, as this second study argues, the Tosefta or the materials collected in Tosefta provide one window into that social identity’s continuities and transformations in the period immediately following upon the Mishnah’s promulgation by and within rabbinic circles. Akin to my analyses and arguments in the preceding chapter about Mishnah, what follows seeks to interpret the social significance for the early rabbinic group of the most pervasive literary-rhetorical traits of Tosefta.2 Let me begin by rehearsing the most salient findings of what in the previous study I said about Mishnah, Mishnah study, and early rabbinic social formation and identity.3 I argued that the pervasive macro- and micro-literary and rhetorical traits of Mishnah reflected and/or engendered modalities of reader engagement that served to promote specific Confirm that of Mishnah?” Here, in this version under its new title, it is once more gathered together not only with related papers that I have authored on this theme, but also with the works of other contributors. I say “once more” because of these papers’ common origin as presentations between 2015 and 2018 to the European Association of Biblical Studies’ (EABS) research group, Sociological and Anthropological Approaches to the Study of the Evidence of the Mishnah. I wish to thank the journal ARSJHSS for agreeing to permit such “cross-fertilization” and the EABS for hosting the research group for four years. 2  For the purposes of this paper, which looks to, broadly speaking, general trends in and to pervasive literary and rhetorical traits of Tosefta, particularly as they compare to Mishnah, the precise textual versions of individual Tosefta passages is not highly relevant. Therefore, I have not tried to arbitrate between the Erfurt and Vienna mss. or between the editions of M.S. Zuckermandel and S. Lieberman, as would normally be done where establishing the best text of a particular passage is desirable. In fact, for ease of the reader, unless otherwise indicated in the notes, I have chosen, quite simply, to use the Hebrew text of the Tosefta printed with the standard Vilna edition of the Babylonian Talmud, because it is most readily available in print and online to the widest swath of potential readers of this article, notwithstanding the known faults of this version of the Tosefta for precise philological, stemmatic, and literary-historical work. 3  As noted in the previous chapter, that essay too is a lightly revised version of the article Jack N. Lightstone, “Textual Study and Social Formation: The Case of the Mishnah,” Studies in Judaism, the Humanities and the Social Sciences 1 (2017): 21–44 (itself based upon my conference paper, “The Bases for Social Cohesion and Group Identity of the Early Rabbinic Guild: What does the evidence of the Mishnah show?” presented to the EABS’ research group on Sociological and Anthropological Approaches to the Evidence of the Mishnah in Leuven, in July 2016). In the paragraphs that follow, which rehearse the findings of the earlier essay as an introduction to this one, I reference the pages in the article published in SJHSS, as that is their originally published venue.

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professional skills and social relationships among the members of the early rabbinic guild. These skills and social interactions, I stated, would have constituted core elements of group identity and social cohesion for the nascent rabbinic movement at the time that Mishnah was produced, because, after Scripture itself, Mishnah was promulgated at the turn of the third century as the most important object of study within the social formation of the early rabbis.4 While Scripture’s authority exceeded that of Mishnah or of any other early rabbinic composition, it was Mishnah study that was promoted as the core curriculum in the inner-group life of the early rabbis. Only the study of the Babylonian Talmud, four or more centuries later, displaced Mishnah study. Previously,5 I defended my approach of focusing on pervasive macroand micro-literary and rhetorical traits, and bracketing for the moment what Mishnah’s tractates, or what other (later) rabbinic texts, episodically have to say about the role and professional traits of the rabbi or about the social organization of the early rabbinic group. I promoted this approach for several methodological reasons. No early rabbinic composition attempts a sustained, coherent, history of the early rabbinic movement, its nature, development, and institutions.6 Early rabbinic literature’s short stories about what rabbis did or said, and rabbinic dicta that purport to enjoin specific roles for rabbis provide grossly insufficient grounds for any detailed, social description of the earliest rabbinic movement. Moreover, these sources are sometimes suspected, and rightly so, of being anachronistic, aspirational, and/or ensconced in utopian thinking about an ideal situation imagined by these texts’ sources or authorships about the roles and authority of the rabbi in Jewish society.7 4  Evidence for this claim is provided in Jack N. Lightstone, “Textual Study and Social Formation: The Case of the Mishnah,” 22, 26–27. 5  See Jack N. Lightstone, “Textual Study and Social Formation: The Case of the Mishnah,” 26, 27, 32; for a survey of methodological issues faced in using the evidence of Mishnah for historical, sociological, or anthropological studies, see my other essay in this issue, Jack N. Lightstone, “Sociological and Anthropological Approaches to the Study of the Evidence of the Mishnah: A Call to Scholarly Action and a Programmatic Introduction,” Studies in Judaism, the Humanities and the Social Sciences 2 (2019): 1–16. 6  For such a work, one must wait for Sherira’s tenth-century Iggeret, followed by Abraham Ibn Daud’s thirteenth-century Sefer HaKabbalah. 7  My resistance to using such episodic accounts about what rabbis are alleged to do within the rabbinic group and (especially) outside of it in Jewish society is particularly pronounced when attempting to reconstruct the nature and history of the social formation of the earliest rabbinic group, that is, in the late first and second centuries and the first half of the third

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By contrast, the pervasive and literary traits of documents on the macro and micro levels both reflect and determine what is demanded as competencies, presumed antecedent knowledge and, therefore, of mentoring relationships on the part of devoted students of this literature. These traits, then, provide unselfconscious, indirect evidence about the early rabbinic group’s self-understanding of core rabbinic skills and of important aspects of shared rabbinic social identity. Such literary and rhetorical conventions, the forms of reader engagement they engender in, and the skills and antecedent knowledge they require of, the Mishnah’s students are simply not as susceptible to anachronistic, tendentious, and self-serving (mis)representations. Consequently, we skirt methodological issues concerning (perhaps-)imagined social orders and glimpse something of the early rabbinic social formation. All that we must ascertain with reasonable confidence is that these texts, or something akin to their literary components, were sustained objects of study in the early rabbinic social formation, as one can certainly say about Mishnah. If so, we are on fairly firm ground when we claim that the macro- and micro-literary and rhetorical traits reflect and shape aspects of shared rabbinic social identity. What would have been the social relations assumed by, and the shared skills modeled and inculcated in, the study and mastery of Mishnah at the time of its composition and promulgation at the turn of the third century? Here, very briefly, is what I argued in the previous chapter. First, the topical agenda of Mishnah’s lists of hypothetical cases (its protases), coupled with the highly laconic nature of the language in which these cases are cast, requires of the Mishnah student (1) a significant amount of antecedent knowledge of scriptural law and halakhah and (2) a high degree of guided, active, logico-analytic reader-engagement even to grasp the particulars of the issues at hand.8 In combination, both of these requisites assume an organized social setting in which knowledge transfer and intellectual mentoring take place. Whether these were formalized master-disciple circles or organized Houses of Study, we cannot say on the

century. My resistance progressively wanes as regards developments in the fourth and subsequent centuries, regarding which works such as that of Catherine Hezser, The Social Structure of the Rabbinic Movement in Roman Palestine (Tübingen: Mohr Siebeck, 1997) and Lee I. Levine, Ma’amad HaHakhamim, translated as The Rabbinic Class of Roman Palestine in Late Antiquity (Jerusalem: Yad Yitzhak ben Zvi, 1989) offer valuable analyses. 8  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 28–36.

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basis of this evidence.9 Second, turning to Mishnah’s equally laconically formulated rulings (apodoses), the engaged Mishnah student is invited (3) to contemplate in what manner and why the varying of details of a case matter, such that one ruling versus another applies. Indeed, Mishnah’s cases (protases) can often be so laconically articulated that the posited circumstances that comprise the case at hand can only be fully articulated in light of the rulings that follow them. That oftentimes a case can only be fully conceived in light of the ruling, engages the Mishnah student in yet another logical-analytic process in itself. Moreover, since Mishnah regularly, but not universally, presents “disputing” rulings for a single case, the engaged student must ponder, usually without guidance from within the passage itself, why one might legitimately hold either view, reconsidering the circumstances of the case in light of one ruling and, again, in light of the opposite ruling.10 To cite some of the concluding remarks from my antecedent chapter: … [W]hat reader engagement seems engendered by Mishnah’s pervasive micro-rhetorical traits [?] One may describe it as “matrix analytics.” Across the top of the matrix are various cases, often spun out by varying the several circumstances that combine to define the case. Down the side of the matrix is the ruling or rulings that apply in each case. …. In each “box” formed by the matrix there is a “yes” or a “no.” Yes, rule x applies; no, rule x does not apply. …. The engaged reader is invited to figure out why Mishnah has placed a “yes” or a “no” in each box of the matrix. As one increases and permutes those elements that together define a case …one increases the number of boxes with “yes” or “no” in them. …. Mishnah [thus] models and invites high-grid thinking and analysis.11

9  Such questions will have to be settled on other evidentiary grounds. A good summary of the scholarly state of opinion on the evolution of rabbinic institutions may be found in Jeffrey L.  Rubenstein, “Social and Institutional Settings of Rabbinic Literature,” in The Cambridge Companion to the Talmud and Rabbinic Literature, eds. Charlotte Elisheva Fonrobert and Martin S. Jaffee (New York: Cambridge University Press, 2007), chapter 3, Kindle edition. See also the groundbreaking study undertaken several decades ago on this issue by David Goodblatt in his Rabbinic Institutions in Sassanian Babylonia (Leiden: Brill, 1975). See also Lee I. Levine, The Rabbinic Class of Roman Palestine, and Catherine Hezser, The Social Structure of the Rabbinic Movement. 10  Lightstone, “Textual Study and Social Formation: The Case of the Mishnah,” 31–36. 11  Lightstone, “Textual Study and Social Formation: The Case of the Mishnah,” 36.

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I suggested that it is not unanimity of opinion that undergirds the social cohesion of the early rabbinic group, but shared competencies and skills that all rabbis must master. These shared skills go beyond expertise in Torah law, its ramifications, and knowledge of the differing legal traditions about its application. They include highly tuned, analytic acumen applied to high-grid making or high-matrix making.12 The Task at Hand: The Evidence from Tosefta and the First Developments of a Post-Mishnaic Social Identity Within the Early Rabbinic Social Formation In this follow-up study, I begin to take up a question which is not expressly articulated in, but is certainly suggested by, the conclusions of preceding chapter. To what degree does the evidence from immediately post-­Mishnaic rabbinic documents confirm our findings based solely on Mishnah’s sustained literary and rhetorical traits? Does immediately post-­Mishnaic evidence suggest continuity, discontinuity, or evolution in the core, shared identity-forming traits of being a rabbi, and in what combination? As I stated at the outset of this chapter, to address this question, I examine the evidence of Tosefta within much the same conceptual and theoretical framework that in my antecedent study I treated the evidence of Mishnah. I will focus on pervasive rhetorical and literary traits of Tosefta. Again, I contend that these traits likely constitute more indirect and, therefore, less biased, tendentious, or anachronistic witnesses to the modalities of reader/student engagement, and of core skills and traits within the still-emerging social formation of the early rabbis. Why Tosefta? Three closely related reasons are top of mind. First, on the surface, Tosefta is—or as some would preferably articulate matters, Tosefta’s materials are—most Mishnah-like. Yet, Tosefta is not exactly like Mishnah in a number of respects. From a conceptual and methodological perspective, comparisons of human constructs that closely resemble one another provide particularly compelling opportunities for research, as Jonathan Z. Smith reminds us.13 I would argue that that is especially so 12  The foregoing summarizes Lightstone, “Textual Study and Social Formation: The Case of the Mishnah,” 36–37. 13  Jonathan Z. Smith, “In Comparison a Magic Dwells,” reprinted as the “Prologue” in A Magic Still Dwells: Comparative Religion in the Modern Age, eds. Kimberly C. Patton and Benjamin C.  Ray (Berkeley: University of California, 2000), 23–46. Jonathan Z.  Smith, “What a Difference a Difference Makes,” in Relating Religion: Essays in the Study of Religion

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when the two comparators are closely related historically and socially, which leads to my next reason. Second, it is generally agreed that Tosefta, more less as we have it, or some proto version of it, or (minimally) a significant proportion of its constituent parts, dates from early rabbinic circles operating near or soon after Mishnah’s composition and promulgation in the early third century. Third, there is a widely shared consensus that a close literary-historical relationship exists between materials in Mishnah and those in Tosefta, even if there is much dispute about the precise nature of their literary-historical relation. That dispute is worthy of some comment at this juncture. There are those, myself included, who view Tosefta, the document, as largely dependent upon Mishnah, and who see Tosefta as an oeuvre composed and organized as some sort of aid to Mishnah study.14 However, since the late 1990s, there are a number of scholars who argue that significant chunks of Tosefta appear to predate and underlie their parallel sections in the extant Mishnah. In these instances, the Mishnah is said to have epitomized

(Chicago: University of Chicago, 2004) 251–302. David M.  Freidenreich, “Comparisons Compared: A Methodological Survey of Comparisons of Religion from ‘A Magic Dwells’ to A Magic Still Dwells,” Method and Theory in the Study of Religion 2004 (16): 80–101. 14  My own view largely (but not entirely) accords with that of Jacob Neusner. See Jacob Neusner, Tosefta, An Introduction (Tampa: University of South Florida, 1992). See also J. Neusner, The Bavli that Might Have Been: Tosefta’s Theory of Mishnah Commentary Compared with the Bavli’s (Atlanta: Scholar’s Press, 1991). Neusner’s articulation of the relationship of Toseftan to Mishnaic materials is first substantively and coherently articulated in his History of the Mishnaic Law of Purities, Part 21 (Leiden: Brill, 1977). I base my inclinations not just on his work—and no one to my mind has compared as much of Mishnah to Tosefta than Neusner—but on my own comparisons of many dozens of Mishnah and Tosefta passages over the course of my own research, even though my research was not specifically directed to unraveling the literary-historical relationships between these two compositions. I find the nuanced articulation of Harry Fox on where he stands in this debate helpful. See Harry Fox’s extensive “Introduction” in Introducing Tosefta, eds. Harry Fox and Tirzah Meacham (New York: Ktav, 1999). See also Jacob Neusner, The Yerushalmi: And Introduction (Northvale: Aronson, 1993), 5–13, on relative dating of the completion of the Yerushalmi and the completion of our Tosefta. While I side with Neusner on Tosefta’s literary-historical relationship with Mishnah, I find his dating to the completion of “our” extant Tosefta to near the turn of the fifth century quite late, and certainly other recent scholarship, referred to in the next note would suggest an earlier date, if not for “our” extant Tosefta, then for some proto-version of it, akin to proto-Mark’s existence before our extant Mark in New Testament studies.

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Tosefta’s parallel material in some fashion.15 That the authorships of Mishnah and Tosefta draw on a common pool of antecedent traditions seems a matter upon which both sides of this scholarly debate agree. The articulation of matters in this paper reflects my view that our Tosefta was composed to aid the study of our Mishnah.16 Moreover, much of Tosefta (perhaps as much as two-thirds of its context17) is, in my opinion, not fully intelligible without Mishnah open beside it to provide context. But the specific arguments proffered in this chapter are not seriously impacted by the outcome of the scholarly debates just referenced. How so? Because Mishnah, not Tosefta, became the primary object of study among early third-century rabbis, and, consequently, Tosefta, or its constituent passages, will have functioned to serve Mishnah study within third-century and later rabbinic circles, even if in many instances Toseftan passages reflect rabbinic traditions that predate and even underlie correlative Mishnah passages. Throughout this chapter, I refer to this state of affairs as the use of Tosefta, or of Toseftan materials, in situ (“as it lies”), that is, in service to Mishnah study. Methodologically, this essay considers this use of Tosefta in situ, and this methodological stance need not be negatively affected by indications that some or many passages in Tosefta (or their substantive content) predate and underlie sections of Mishnah. To sum up our approach—within the history of the rabbinic social formation of the late third and fourth centuries, this is “the ball as it lies”: Tosefta, the document, or its preexistant  constituent elements, came in 15  Hauptman, Houtman, Friedman, and Kulp have all argued for the historical-literary primacy of many Tosefta passages over their Mishnaic counterparts. See Joshua Kulp, “Organizational Patterns in the Mishnah in Light of their Toseftan Parallels,” Journal of Jewish Studies 58, no. 1 (2007): 52–78; Judith Hauptman, “Does the Tosefta Precede the Mishnah? Halakhah, Aggada, and Narrative Coherence,” Judaism 50 (2001): 224–40, and “The Tosefta as a Commentary on an Early Mishnah,” Jewish Studies, Internet Journal 4 (2005): 109–132; Shamma Friedman, Tosefta Atiqta, Pesah Rishon: Synoptic Parallels of Mishna and Tosefta Analysed with a Methodological Introduction (Ramat Gan: Bar Ilan University Press, 2002), and “The Primacy of Tosefta to Mishnah in Synoptic Parallels” in Introducing Tosefta, eds. Harry Fox and Tirzah Meacham, 99–121; Alberdina Houtman, Mishnah and Tosefta: A Synoptic Comparison of Tractates Berakhot and Shebiit (Tübingen: Mohr Siebeck, 1997). See also Judith Hauptman, Rereading Mishnah (Tübingen: Mohr Siebeck, 2005). A similar position on Tosefta may be found in Elizabeth Shanks Alexander, Transmitting Mishnah: The Shaping Influence of Oral Tradition (Cambridge: Cambridge University Press, 2009). 16  See, for example, Alberdina Houtman, Mishnah and Tosefta: A Synoptic Comparison of Tractates Berakhot and Shebiit, 234ff. 17  In Neusner’s view. See J. Neusner, Tosefta: An Introduction.

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situ to function quite early on as a body of materials that served in the analysis of Mishnah. This is an underlying premise of this study, and it will be further substantiated shortly. In the meanwhile, for what reasons were Toseftan materials used in Mishnah study? Foremost, because ancient students of Mishnah and their masters/mentors themselves understood the content of these Toseftan materials to stem from the same generations of rabbinic authorities whose traditions were believed to be taken up in the Mishnah. Consequently, in “playing the ball as its lies,” I ask, “How do Tosefta’s dominant literary and rhetorical conventions, in addition and in comparison to Mishnah’s, model core competencies and skills informing shared early rabbinic identity in the socially normative and formative acts of Mishnah study in rabbinic circles of this period?” Underlying Historical Premises for This Study’s Approach The argument of my antecedent chapter about the social-formative effects of Mishnah’s pervasive literary and rhetorical conventions rested on an underpinning historical premise: that Mishnah study was a shared, highly valued, normative activity of the early rabbis.18 The argument of this chapter, as just noted, rests on a related historical premise: that either the extant Tosefta (or a proto-Tosefta, if you prefer) or a significant proportion of its constituent passages, roughly in their current literary and rhetorical formulations, served as normative companion material in the early study of Mishnah.19 Without some degree of confidence in the historicity of this claim, we cannot draw conclusions from pervasive literary and rhetorical tendencies in Toseftan materials about modes of early rabbinic social identity. The evidence and warrant for this historical claim are not as direct or as ubiquitous as our claims about the centrality of Mishnah study to the early rabbinic social formation. But there is considerable circumstantial evidence for Toseftan materials’ normative use in this manner. Our warrant rests on three related “observations.” First, as intimated earlier, from early on Tosefta, as a compilation, was understood to be a collection of beraitot, namely, of extra-Mishnaic, Tannaitic materials, that is, materials stemming

 See Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 26–27.  Again, see, for example, Houtman, Mishnah and Tosefta: A Synoptic Comparison of Tractates Berakhot and Shebiit, 234ff. 18 19

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from the same generations of authorities whose teachings underlie Mishnah. Second, both the Jerusalem and Babylonian Talmuds, both of which are expressly organized as analytic commentaries on a subset of Mishnah’s tractates in service of their study, treat all beraitot as authoritative sources, the authority of which are exceeded only by Scripture and Mishnah. Indeed, for the Talmuds, this second “observation” functions as a premise that is at the core of the literary formation of a major proportion of individual Talmudic compositions (sugyot), and of many of the amoraic (i.e., post-Mishnaic) traditions embedded in these compositions. This status of beraitot as “almost Mishnah” is, therefore, not likely to have been the invention of the final framers of the Jerusalem Talmud (c. 400) or of the Babylonian Talmud (c. 600), even though the current consensus is that these final framers fashioned much of the dominant rhetorical-structural language of the Talmuds’ extended, “intermediate” compositions (the sugyot). Clearly, the practice of adducing beraitot in the service of Mishnah study, Mishnah criticism, and Mishnah analysis significantly predates these authorships and was a practice among the earlier generations of post-­ Mishnaic authorities (amoraim).20 Third, many of the beraitot cited in the Jerusalem and Babylonian Talmuds have parallels in Tosefta. The Talmuds are reliant on Tosefta, on some proto-version of Tosefta, or on beraitot-sources from which our Tosefta also draws. Whether it is one or the other is an important literary-­ historical matter,21 but, again, does not seriously affect this study’s 20  This is argued extensively by Judith Hauptman in her scholarship on the proto-sugya (proto-compositions) in the Babylonian Talmud. She argues that Mishnah passages circulating with accompanying, relevant beraitot constituted these proto-sugyot, to which amoraic sayings were later attached in a second stage of development, all before the literary systematization that occurred with the final anonymous, collective authorship of the Babylonian Talmud (c. 600). See Judith Hauptman, “The Development of the Talmudic Sugya by Amoraic and post-Amoraic Amplification of a Tannaitic Proto-Sugya,” Hebrew Union College Annual 58 (1987): 227–250. 21  Alberdina Houtman, Mishnah and Tosefta, 233, offers a good summary of the complexity of sorting out these matters based on the evidence and references various scholars’ work on the issue. In her summary, she points out that the Palestinian Talmud’s beraitot are closer in language to their parallels in Tosefta than are the Babylonian Talmud’s. She also references scholarship that indicates that in many instances amoraic authorities seem not to avail themselves of Tosefta passages when the latter are relevant to these Amoraic masters’ treatment of a Mishnah passage. Nonetheless, Houtman maintains (244ff) that the Toseftan collection was composed within a generation of the composition of Mishnah. As to the historical pri-

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methodology or argument. The upshot of all three observations taken together is this: beraitot, of which our Tosefta is an extensive, major, and early collection,22 were normatively used to inform Mishnah study in early macy of the substance of individual parallel passages in Mishnah, Tosefta, and Talmudic beraitot, a different matter altogether, see, for example, the study by Yitzhak Blau, Tractate Moed Qattan, Chapter 1: A Study of the Halakot in Mishnah in Light of the Parallel Beraitot in the Tosefta and the Talmuds (Hebrew) (Haifa: Doctoral Dissertation, University of Haifa, 2015). Finally, Hauptman notes in “Does Tosefta Precede Mishnah?” that beraitot cited in the Talmuds that have counterparts in Tosefta tend overwhelmingly to parallel what she has called “core Tosefta.” For my part, I see a strong link between what Hauptman calls “core” Tosefta and what Neusner identifies, in Tosefta: An Introduction, as Toseftan passages that either cite and gloss/comment upon Mishnah passages or rely upon and complement Mishnah passages. These Tosefta passages may be distinguished from other Toseftan materials that are literarily independent of Mishnah pericopae and (merely) supplement Mishnah by being topically related to the content of the Mishnah “chapter” with which they have been linked by Tosefta’s authorship. See also J. Neusner, The Bavli that Might Have Been: Tosefta’s Theory of Mishnah Commentary Compared with the Bavli’s. 22  While Houtman, Hauptman, Friedman, Kulp, and others have all argued for the historical primacy over Mishnah of significant chunks Tosefta, pace Neusner, no significant cadre of scholars latterly has raised doubts about whether the collection we call Tosefta is post-Mishnaic, on the one hand, and a collection stemming from the early amoraic period, on the other. In this, the consensus view of recent scholarship recalls the earlier conclusions of J.N. Epstein, Mavo LeSifrut HaTannaim (Jerusalem: Magnes Press, 1957). The exception that incidentally confirms the abovementioned consensus-position that of Judith Hauptman, who does not see Tosefta as later than this, but rather either posits the existence of a “core Tosefta” that was a proto-Mishnah, or understands Tosefta, or major chunks of it, to be a commentary on a proto-Mishnah. For the former position, see Judith Hauptman, “Does the Tosefta precede the Mishnah.” Hauptman suggests that Mishnah is dependent upon coreTosefta for its thematic tractates (and, by extension, for individual tractates’ topical “chapters”). For the latter position, see Judith Hauptman, “The Tosefta as Commentary on an Early Mishnah,” Jewish Studies, an Internet Journal 3 (2004): 1–24, the argument of which corresponds with her position in Hauptman, Rereading Mishnah. Her former position, namely, the suggestion that a “core Tosefta” was the “proto-Mishnah,” is not a necessary conclusion from her principal findings that many Toseftan passages are earlier than their parallels in Mishnah. Nor is her hypothesis of a core-Tosefta having function as “protoMishnah” likely the case, since there is a strong element of “argument from silence” in drawing such a conclusion, similar, in my mind, to David Weiss Halivni’s positing, in Midrash, Mishnah, and Gemara: The Jewish Predilection for Justified Law (Cambridge: Harvard University Press, 1986), that halakhic midrash preceded Mishnah and Mishnah’s rhetorical and literary conventions. In his view, the authorship of Mishnah removed the midrashicformal elements from their sources and recast the content in Mishnaic form. The extant halakhic-midrashic compositions, which are post-Mishnaic, like Tosefta, represent a recovery or reconstruction of these early pre-Mishnaic, halakhic-midrashic traditions. Even so, “our” Toseftan collection is post-Mishnaic, and consequently, without far more evidence to the contrary, it is more likely that “our” Tosefta’s authorship has organized materials in accor-

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rabbinic circles. And this was likely the case by the mid- to late third century and beyond.23 Indeed, some evidence is tantalizingly direct, rather than indirect, in these regards, even if one cannot prove that what is referred to is some version of “the” Tosefta. Take, as a prime example, the mini-composition ultimately integrated into the Jerusalem Talmud, Tractate Horayot 3:5. The passage constructs a debate around the relative value of, and hierarchy among, the major elements of the rabbinic core curriculum as understood sometime before c. 400 CE. Not necessarily in their order of priority, those elements are Scripture, Mishnah (mishnayot), halakhah, aggadah, “the” Talmud, and ha-tosefet. The last mentioned, which Neusner chooses to translate as “the Supplement,”24 is the exact Hebrew lexical and morphological equivalent of the Aramaic title of “our” document, tosefta. What the Toseftan Evidence, Considered In Situ, Shows: Prefiguring This Study’s Findings In the confines of an essay such as this, I can only argue for a heuristic conclusion, which I will prefigure at this juncture in the most general terms. “The rest is [just detailed] commentary” (b. Shab. 31a). 1. To a significant degree, Tosefta’s literary and rhetorical traits are akin to Mishnah’s. Whether Toseftan passages depend upon and expressly mimic Mishnah’s literary and rhetorical conventions, or whether Mishnaic and Toseftan compositions share some common literary-historical roots in which these traits were already well established may be a matter of debate for some. My leanings, as noted, are toward the former, although in either case Mishnaic and Toseftan texts emerge from common social and cultural roots, including a common shared pool of rabbinic traditions.25 That said, there is a least one glaringly dance with the tractates and topical “chapters” originating with the authorship of Mishnah, so that the materials in the former may aid in the study of the latter. 23  A dating that is almost a necessary conclusion of what Hauptman argues about the “proto-sugya.” See Judith Hauptman, “The Development of the Talmudic Sugya by Amoraic and post-Amoraic Amplification of a Tannaitic Proto-Sugya,” Hebrew Union College Annual 58 (1987), 227–250. 24  Neusner, The Yerushalmi: An Introduction, 130. 25  Again, for the record, my view is that it is a combination of both, because I tend to support the conclusion that a good deal of Tosefta’s compositions can be shown to be postMishnaic and Mishnah dependent.

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different macro-characteristic in which Tosefta and Mishnah differ: the manner in which “chapters” (i.e., coherent “intermediate-sized” units that in sequence make up tractates) are constructed, as I shall argue below. 2. Equally important, there are consistent micro-literary-rhetorical tendencies in Toseftan materials that “go beyond” Mishnah’s pervasive literary and rhetorical conventions and constructs. I deliberately choose the terms “go beyond” rather than “depart from” for reasons which will become clearer later. I do so not because I argue that these standard micro-literary-rhetorical constructs of the Tosefta arose as direct responses to the forms of logico-analytic reader engagement demanded by Mishnah study. I do not believe I can prove such a claim. And in any case, I prefer here to skirt, when I legitimately can, matters regarding the historical primacy of Mishnah passages over Toseftan ones. Rather, I argue that when Toseftan passages were used in situ to serve Mishnah study—the seemingly intended purpose of the composition of the document, Tosefta, by its authorship—these Toseftan passages’ micro-­ literary-­rhetorical conventions served to model and extend forms of reader engagement and expertise that both reinforced and modulated those engendered by Mishnah’s dominant rhetorical and literary traits. In doing this, passages in Tosefta, at one and the same time, both confirm and modify the forms of shared social identity spurred indirectly by Mishnah study and Mishnah mastery. 3. The use of a collection of materials with which to study, augment, and even critique Mishnah, which is what our extant Tosefta serves in situ to provide,26 necessarily changes engaged students’ relationship to the Mishnah text and transforms, even if subtly, the inner-group life of the social formation created to some extent around the study of Mishnah. Mishnah models the acquisition of taxonometric expertise, of “high-grid” thinking and analysis. Tosefta, when functioning in situ, reconfirms this rabbinic ethos, but also begins to shift the emphasis to the acquisition of Mishnah expertise and Mishnah “criticism.” And, while it is beyond this chapter to demonstrate, this shift lays the basis 26  In addition to the Neusner approach in Tosefta: An Introduction, see also J. Neusner, The Bavli that Might Have Been. Alberdina Houtman offers an informed attempt to grapple with the intent behind the production of Tosefta; cf. Houtman, Mishnah and Tosefta: A Synoptic Comparison of Tractates Berakhot and Shebiit, 234ff. Leaving aside the knotty question of historical primacy of parallels in Mishnah, Tosefta, and Talmudic beraitot, the latterly scholarly consensus remains firm that the document which we call Tosefta was produced relatively soon after Mishnah in order to serve Mishnah study.

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for, and anticipates, the agenda of the Jerusalem Talmud (as a kind of super-Tosefta). To my mind, it is a “difference” that “makes a difference.”27 It matters whether a social formation of elites is founded on honing certain skills with which to categorize the world around them, or whether they value acquiring certain techniques to interpret, extend, critique, or apply an authoritative text, or whether it is some emerging re-combination of both.

Tosefta’s Literary-Rhetorical Traits as a Model of/ for Mishnah Study As I did in my antecedent chapter on Mishnah study,28 I group my observations about Tosefta under several broad headings: macro-traits, such as topical agenda and organization; and micro-literary-rhetorical conventions, such as pervasive literary forms and formularies. But because of our focus on Tosefta’s service in Mishnah study on a passage-by-passage basis, that is, Toseftan passage x′ serves, in situ, as “commentary, complement and or supplement”29 to Mishnah passage x, I have found it useful to introduce a third category of literary-rhetorical traits that occupies an “intermediate level,” between macro-level and micro-level characteristics. Tosefta’s Macro Traits: Agenda and Organization  roadly Speaking, Mishnah Supplies Tosefta with Its Themes and Vision B of Its “World” Without rehearsing the content of my preceding chapter about Mishnah, Tosefta’s topical agenda is Mishnah’s, plain and simple. Tosefta, broadly speaking, covers the same range of topics as Mishnah, which I previously described as “sacerdotal ritual and priestly gifts, religious/festival practice,  The allusion here is to the influential writings of Jonathan Z.  Smith on comparative methodologies, well summarized and analyzed in David M.  Freidenreich, “Comparisons Compared: A Methodological Survey of Comparisons of Religion from ‘A Magic Dwells’ to ‘A Magic Still Dwells’,” Method and Theory in the Study of Religion 16 (2004): 80–101. 28  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 28, 31. 29  To use Neusner’s labels for categorizing Tosefta passages in relation to their Mishnah counterparts; see Neusner, Tosefta: An Introduction. Friedman, Houtman, Kulp, and Hauptman all use, or admit to, some similar mode of differentiating Tosefta passages in terms of their relation to Mishnah, when considering the Toseftan collection as a whole functioning as some sort of aid to Mishnah study; see references in notes 13 and 14 above. 27

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purity maintenance, some civil and family law, and some judicial process, tort and criminal law.”30 Therefore, Tosefta’s subject matter displays the same odd mix of utopian preoccupation with temple sacrifice, purity, priestly and Temple gifts, and priesthood (some 150 or more years after the Temple’s demise), on the one hand, and family law, civil and criminal law and proceedings, prayer, Sabbath, and festival observance in the home, street, and synagogue, on the other. Like Mishnah, Tosefta is “unstuck in time” (defining law for a world that is both before and after the destruction of the Jerusalem cult and its institutions), but very much stuck in a place (the Land of Israel). Indeed, Tosefta is organized with respect to the same tractates as Mishnah  (barring several Mishnah tractates for which no corresponding ones are found in Tosefta), and within tractates, Tosefta’s treatment of subtopics largely follows Mishnah’s treatment of subtopics. In other words, Mishnah’s intermediate units (roughly speaking, its “chapters”) are Tosefta’s as well, and, more often than not, in approximately the same order.31 Tosefta resembles Mishnah in another respect. Its treatment of matters is minutely specific in some sub-subtopics, while leaving other matters germane to the topics at hand almost wholly untouched. Leaving aside the fact that both Mishnah and Tosefta frequently present “disputes” in which opposing rulings are attributed to “disputing” authorities, an oddity for any would-be law code, Tosefta makes no more of a pretense to be a law code than Mishnah; Tosefta, like Mishnah, lacks the systematic, attempted comprehensiveness, and structure that a Maimonides’ Mishnah Torah and Jacob ben Asher’s Arb’ah Turim exhibit.  osefta Stands in Similar Relationship to Scripture as Mishnah Does T It stands that Tosefta bears a similar relationship to Scripture as Mishnah. Scripture’s law is everywhere presumed to be authoritative and valid, but Tosefta is not anymore a legal exposition of Scriptural law than Mishnah is. Temple-related law is treated in Tosefta, as in Mishnah, because it is scriptural, although Scripture is not systematically adduced or commented upon. Scripture’s world topically informs Tosefta’s world, the historical facts on the ground in the third century CE notwithstanding, just as in the case of Mishnah. To my mind, that “our” Tosefta is most likely derivative  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 28.  See Neusner, Tosefta, An Introduction, and his The Bavli that Might Have Been. Neusner’s articulation of the relationship of Toseftan to Mishnaic materials is first substantively and coherently articulated in his History of the Mishnaic Law of Purities, Part 21. 30 31

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of Mishnah in some serious fashion is undeniable,32 even if the literary-­ historical relationship at the level of individual passages of Tosefta may be more complex and varied.  osefta’s “Chapters” Have, Relative to Mishnah, Little Literary Unity T and Coherence of Their Own, But, In Situ, Rely on the Unity and Coherence of Corresponding Mishnah “Chapters” Tosefta’s dependency in situ on Mishnah is borne out as well by a blatant macro-level literary trait that makes Tosefta very different than Mishnah, despite their many similarities. Mishnah’s topical “chapters”33 display much greater unity and coherence than Tosefta’s cognate “chapters,” One might say that in these many instances, Tosefta does not really present us with a “chapter” at all; “chapter-ness” in Tosefta tends to derive from the cognate Mishnah “chapter” to which the Toseftan materials topically relate. There is a significant correlate of the foregoing. Often a Toseftan passage or a Toseftan “chapter” is not fully intelligible without having the corresponding Mishnah chapter open beside it to provide content and/or context. Only where Tosefta proffers content that is topically

32  I realize that Judith Hauptman, at one juncture at least, argues the opposite. See Judith Hauptman, “Does the Tosefta Precede the Mishnah? Halakhah, Aggada, and Narrative Coherence,” Judaism 50 (2001): 224–40. 33  I follow Jacob Neusner’s practice of placing “chapter” in quotation marks when referring to Mishnah tractates’ “intermediate units,” again Neusner’s terminological preference. By this, he means that Mishnah tractates’ “chapters” or “intermediate units,” viewed from a substantive, topical, and literary point of view combined do not always correspond with the chapter divisions found in the extant manuscripts, all of which date from many centuries after Mishnah’s production. The same may be said for Tosefta tractates’ “chapters” for much the same reason, and, additionally, because the medieval scribal practice of dividing Tosefta into chapters was directly dependent upon the practice of so dividing Mishnah. The literary features that define Mishnaic “chapters” are isolated by Jacob Neusner in his History of the Mishnaic Law of Purities, Part 21 (Leiden: Brill, 1977). Those of us who regularly read early rabbinic texts are so accustomed to read individual Toseftan passages to elucidate a cognate Mishnah passage or a parallel baraita in one or another of the Talmuds, that we do not see the Tosefta “chapter” in literary terms for what it is, an entirely derivative artifact of a Mishnah “chapter,” with little or no features that of its own that constitute its unity and coherence apart from Mishnah. Neusner’s Purities, Part 21 and Part 22 were pivotal in his research and form the most important basis for his Judaism: The Evidence of the Mishnah (Chicago: University of Chicago, 1981). Purities, Part 21 and Part 22, also produced the core of his subsequently articulated views regarding Tosefta.

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supplemental to,34 but otherwise literarily independent of, Mishnah— between 20% and one-third of our Tosefta’s content35—are Toseftan pericopae more likely to be fully intelligible on their own.36 An interesting thought experiment illustrates this: try to forget one ever saw Mishnah, and then read “chapters” of Tosefta. Toseftan chapters often are far less intelligible in themselves and display much poorer flow and literary unity than Mishnah “chapters,” although Mishnah, more than Tosefta, is often touted as the more difficult document to understand without supplementary materials and expert commentary (sometimes provided in Tosefta).37 But this vexing feature of Toseftan “chapters” would be entirely understandable, if Tosefta were understood to be a “derivative” compilation that in some serious sense was intended by its authorship to “ride piggyback” on a “base” composition, Mishnah.38 Tosefta as a 34  Jacob Neusner’s “third” type of Tosefta material; see Neusner, Tosefta: An Introduction, and his Bavli that Might Have Been. As stated earlier, virtually every modern scholar who has seriously grappled with Tosefta—for example, Hauptman, Friedman, Kulp, Houtman, and Blau—notes three types of Toseftan passages that roughly are correlates of Neusner’s tripartite typology. 35  See Neusner, Tosefta: An Introduction. 36  I have become increasingly sensitive, from a methodological perspective, to a challenge faced by scholars working in this field of inquiry. Our life-long encounters with these texts make it difficult for us to bracket out knowledge of the corresponding Mishnah passage, when we read “parallel” passages in Tosefta. We often tend not to see that the Toseftan text often requires context from Mishnah (and not vice versa) when we read the Tosefta, because we are so familiar with Mishnah. We tend not to ask how the proverbial “Martian,” who does not know Mishnah, would view the intelligibility of such Toseftan passages viewed on their own. 37  Judith Hauptman, in “Does the Tosefta Precede the Mishnah?,” uses the often-recognized difficulty of reading Mishnah on its own as support for her assertion that what she calls “core” Tosefta historically precedes Mishnah. To paraphrase her argument: The authorship of Mishnah (whom she calls “Rebbe” as a matter of convenience only) would not have produced such a difficult work to understand, unless a document already existed that would render Mishnah easier to read. I do not find this argument in the least convincing on its own. And when one sees that so much of what she calls “core” Tosefta is not fully intelligible on its own, but relies effectively on correlative Mishnah passages for an intelligible context, it appears to me that she has the argument backward. In any case, this is not an argument that is central to her Rereading Mishnah, published a few years later. In Rereading Mishnah her conclusions are different: our Tosefta was created to serve to elucidate not the extant Mishnah, but a proto-version of it. This resembles the conclusion in literary-historical studies of the Gospels that Matthew depends upon not Mark as we have it, but upon a proto-Mark. 38  This is entirely consistent with Neusner observation that Tosefta tends to organize its constituent passages in the following manner: first, passages that cite, gloss, and comment on a Mishnah passage; second, passages that complement Mishnah passages and rely upon

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document might, it seems, never have been meant to be read without Mishnah open beside it, but the inverse is not the case. And the same may be said of a great many of Tosefta’s individual passages. Consequently, it is very different to note that a Mishnah passage is difficult to understand, because the novice reader must first acquire enough background knowledge and analytical-critical skills to “fill in the blanks” of a deliberately highly laconic, literary-rhetorical style, than to recognize that a Tosefta passage is not fully intelligible, because it lacks an intelligible context that is provided in an obviously cognate Mishnah passage. Later, I shall return to this observation, among others, in proffering what this may say about the emerging and developing social identity of the early rabbinic social formation in the mid- and late third century. But at this juncture it is an apt segue to noting Tosefta’s “intermediate-level” literary-rhetorical traits, to which I shall presently turn. Now, admittedly, the foregoing argument is couched in terms that accord with my leanings: that is, to see our Tosefta’s compilation and organization as dependent on our Mishnah’s production and organization. But, to repeat a previous point, that need not be the literary-­historical case for the general shape and tenor of my observations to hold. The foregoing claims may be easily recast to accord with other views about the literary-historical relationship of Tosefta (or its materials) to Mishnah (or its materials).39 As previously stated, in the final analysis, Mishnah early on became the primary object of study, and Tosefta and/or its materials came to serve as an aid and companion in the study of Mishnah. As a result, the experience of the relative unity, or lack thereof, of Tosefta’s “chapters” (or of the full intelligibility of many Toseftan passages) in comparison to Mishnah’s would have been mitigated for the ancient student of Mishnah by having recourse to the Mishnah text.

Mishnah passages for their intelligible context; third, passages that topically relate to the Mishnah’s passages and supplement Mishnah, but are not reliant on Mishnah for language, context, or intelligibility. See Jacob Neusner, Tosefta: An Introduction. In essence, Neusner has described the way Tosefta “chapters” are “normally” organized. That is to say, their organization is derivative of that of Mishnah’s “chapter.” 39  See references in note 14.

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Tosefta’s Intermediate Level, Literary-Rhetorical Traits  osefta as “Commentary” and “Complement” Often Serves to Mitigate T Mishnah’s Extremely Laconic Nature In my antecedent chapter on Mishnah study, I argued that a sustained feature of Mishnah was the extreme economy and laconic character of its language.40 That is why any readable translation of Mishnah must either resort to paraphrase at many junctures (as Herbert Danby did41) and/or supply numerous interpolations (as all other modern translators of Mishnah have done42). As I previously argued, the novice reader of Mishnah must be tutored and mentored to the point where the reader may autonomously supply such interpolations. When Tosefta appears (or, if one prefers, is made to appear, in situ) to cite and gloss or to comment on Mishnah, Tosefta sometimes models just such an exercise. For example, take Mishnah Bekhorot 1:1a (analyzed in the preceding chapter43) and its corresponding passage in Tosefta Bekhorot. First, Mishnah Bekhorot 1:1a (without interpolations): . He who purchases the foetus of an ass of a Gentile, 1 2. And he who sells to him, 3. Even though it is not permitted. 4. And he who forms a partnership with him, 5. And he who receives from him, 6. And he who gives to him in trust— 7. is exempt from the law of the firstling, 8. as it is said, “Of an Israelite” (Num. 3:13), 9. but not of others. [m. Bek. 1:1a, trans. my own44]Now, Tosefta Bekhorot 1:1a (boldface = Mishnah’s language, without interpolation):

 Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 31–32.  Herbert Danby, The Mishnah (Oxford: Oxford University Press, 1933). 42  For example, Jacob Neusner, The Mishnah, a New Translation (New Haven: Yale University Press, 1991). Blackman’s translation of the Mishnah lies somewhere between Danby’s approach and Neusner’s; Philip Blackman, Mishnayot, 6 vols. (London and New York: Mishnah Press and Judaica Press, 1951–55). 43  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 31–32. 44  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 31–32. 40 41

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He who purchases the foetus of an ass of an idolater, and he who sells to him, even though it is not permitted, and he who forms a partnership with him—he who gives to him in partnership— and he who receives from him, and he who gives to him in trust is exempt from the law of the firstling, as it is said, “Of an Israelite” (Num. 3:13), but not of others.

[t. Bek. 1:1a, trans. my own from Zuckermandel ed. based on the Erfurt ms.] Here is Tosefta at its simplest. At line 4 it provides (in situ) an explanatory gloss to clarify Mishnah’s laconic language. In typically Mishnaic formulation, m. Bekhorot 1:1a, line 4, uses nothing more than a single verb in the participial form preceded by a heh to make the participle a substantive (ha-mishtatef ). Tosefta turns the participle into an abstract noun (“partnership”) and inserts the later into a sentence with an additional participial substantive that fits well with language at line 5. For the ancient Mishnah student using Tosefta in service to Mishnah study, the Tosefta passage is simply responding to the unstated question: What could Mishnah mean by this laconic use of a verbal substantive (the meaning of which is difficult to grasp without more language inserted)? Simply put, what is Mishnah talking about? The answer appears to the Mishnah student using the Toseftan passage as a study aid to be a concise explication of m. Bekhorot 1:1a, line 4, which fits well the Mishnah passage’s formulation of language.45 If this is Tosefta at its simplest—appearing to cite and gloss—let us look at a typical Toseftan passage that, in situ, does more than this, but is still not an independently formulated passage that “supplements” a Mishnah “chapter.” Below find Mishnah Gittin 1:1–3 and the corresponding Tosefta Gittin 1:1–7. Again, first, Mishnah Gittin 1:1–3, without interpolations: 45  As for the Tosefta’s use of “idol worshipper” for Mishnah’s “gentile,” we are likely dealing here with a mere ms. variant reflecting the divergent preferences of two different medieval scribes with differing local, religious-political sensitivities to consider; non-Jewish censors might conclude that “idolators” did not include Christians (or Muslims, for that matter), and the manuscript would, it was hoped by the copyist, not be censored as a result.

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1:1   1. He who brings a writ from a Mediterranean province46—   2. it is required that he say: In my presence it was written, and in my presence it was signed.  3. R.  Gamaliel says: Even so, he who brings from Reqem47 and from Heger.48   4. R. Eliezer says: Even from Kefar Luddim to Lod.   5. And the sages say: It is not required that he say, In my presence it was written, and in my presence it was signed, except he who brings from a Mediterranean province and he who takes.   6. AndhewhobringsfromprovincetoprovinceinaMediterraneanprovince—   7. it is required that he say: In my presence it was written, and in my presence it was signed.   8. R. Simeon b. Gamaliel says: Even so from hegemony to hegemony.

46  This reference to “Mediterranean provinces” has been generally understood to be the lands of the eastern Mediterranean basin, which boasted many substantial Diaspora Jewish communities. David Goodblatt, however, has argued that the term refers to territories on the coastal plain of the Land of Israel, implying that from here westward, the special requirements enjoined by Mishnah Gittin 1 for the transport of actionable writs of divorce apply. Such an interpretation has the advantage of squaring nicely with the other place-names in both Mishnah Gittin 1 and Tosefta Gittin 1, which all refer to relatively nearby districts on the fringes of the Land of Israel. See David Goodblatt, “Medinat Hayam  – The Coastal District” (Hebrew) Tarbiz 64 (1994), 13–37. On the other hand, I would point out that viewing the coastal plain of the Land of Israel as foreign territory, and its Jewish communities as outside the circle of legal knowledge and practices of the Land seems odd. Towns that are intimately associated with early Rabbinism’s development after 70 CE lie on the coastal plain. Indeed, the ruling attributed to “the sages” at line 5 of m. Gittin 1:1, which disputes the views attributed Eliezer and Gamaliel, only makes sense, in context, if “the sages” are being portrayed by the formulator of this Mishnah passage as drawing a distinction between Jewish settlements close to but outside of the boundaries of the land, in which case they are presumed to share the land’s legal processes for writs of divorce, and communities that are farther afield, as in the case of the Mediterranean provinces, where Jewish settlements cannot be presumed automatically to know and follow the Land’s legal traditions in these matters. 47  The Roman period, Nabatean metropolis, Raqim/Reqmu = Petra, today in Jordan south and slightly east of the Dead Sea. 48  Another major Roman period, Nabatean city, Hegra, south and east of Petra in what is today northwestern Saudi Arabia.

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1:2   9. R. Judah says: From Rekem to the East, and Rekem is like the East; 10. from Ashqalon to the South and Ashqalon is like the South; 11. from Acco to the North, and Acco is like the North. 12. R. Meir says: Acco is like the Land of Israel for writs. 1:3 13. He who brings a writ within the Land of Israel— 14. it is not required that he say: In my presence it was written, and in my presence, it was signed. 15. If there are regarding it challengers, 16. it shall be made to stand on its signatures. 17. He who brings a writ from a Mediterranean province, 18. and he cannot say, In my presence it was written, and in my presence it was signed— 19. if there are on it witnesses, 20. it shall be made to stand on its signatures. [m. Gittin 1:1–3, trans. my own49] Now, the correlative Tosefta Gittin 1:1–7 (boldface = Mishnah’s language; with minimal interpolation): 1.1  1. He who brings a writ from Syria is like him who brings a writ from outside the Land;  2. it is required that he say: In my presence it was written, and in my presence it was signed.   3. From trans-Jordan—  4. is like he who brings from the Land of Israel,  5. and it is not required that he say; In my presence it was written, and in my presence it was signed.

49  Based on my translation in Jack N. Lightstone, Mishnah and the Social Formation of the Early Rabbinic Guild: A Socio-Rhetorical Approach (Waterloo: Wilfrid Laurier University Press, 2002), chapter 2.

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1.2  6. He who brings a writ from a Mediterranean province,  7. and cannot say: In my presence it was written, and in my presence it was signed—   8. if it is possible to make it stand on its signatures,   9. it is fit; 10. and if not, 11. it is unfit. 12. They used to say, 13. They did not say that 14. he should say: In my presence it was written, and in my presence it was signed, 15. in order to be stringent, 16. rather to be lenient upon him. 1.3 17. He who brings a writ from a Mediterranean province, 18. and it was not written in his presence, and it was not signed in his presence— 19. Lo, this person returns it to its locale, and he convenes a court, and it makes it stand upon its signatures, 20. and he brings it and says: An agent of the court am I. 21. In the Land of Israel, an agent appoints an agent. 22. R. Simeon b. Gamaliel says: An agent does not appoint an agent as regards writs. 1:4 23. In the beginning, 24. they used to say: 25. From province to province. 26. They revisited to say: 27. From neighborhood to neighborhood. 28. R. Simeon b. Gamaliel says: Also from hegemony to hegemony.

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1:5 29. There is a stringency as regards the Mediterranean province that is not so as regards the Land of Israel, 30. and with regards the Land of Israel that is not so as regards the Mediterranean province. 31. Since he who brings a writ from a Mediterranean province— 32. it is required that he say: In my presence it was written, and on my presence it was signed; 33. if there are regarding it challengers, 34. it shall be made to stand on its signatures. 35. He who brings a writ from the Land of Israel 36. cannot say: In my presence it was written, and in my presence it was signed; 37. if there are on it [the signatures of] witnesses, 38. it shall be made to stand on its signatures. 1:6 39. How so [do they proceed when] they said, 40. it shall be made to stand on its signatures? 41. When they said: This is our handwriting— 42. it is fit. 43. But we do not recognize either the man or the woman— 44. it is fit. 45. This is not our handwriting, 46. but others testify that it is their handwriting, 47. or their handwriting was adduced from another place— 48. it is fit. 1:7 49. R. Meir says, Acco and its hinterland is like the Land of Israel as regards writs. 50. And the sages say, Acco and its hinterland are like outside the Land as regards writs. [t. Gittin 1:1–7, trans. my own]

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There can be no doubt that in the language in which they are currently formulated, m. Gittin 1:1–3 and t. Gittin 1:1–7 are related to one another in literary-historical terms. That relationship may be complex, or as simple as Tosefta’s formulator using Mishnah’s language and interweaving additional content into it, or formulating the additional traditions in language that fits its new purpose as “Mishnah-complement.” In either case, that is not our concern. What is germane is twofold. First, t. Gittin 1:1 needs an antecedent context to be fully intelligible, and, in situ, m. Gittin 1:1 provides it; the inverse is not the case. Second, read with m. Gittin 1:1–3 as context, t. Gittin 1:1–7 explicates Mishnah in a number of different ways, all of which are typical of the 66–80% of Tosefta50 that would serve, in situ, to “comment upon” or “complement” (to use Neusner’s particular terminology) Mishnah. Let us look at these ways. (a) Tosefta 1:1 continues Mishnah 1:1a’s truncated process of defining the geographical boundaries of the law’s application. Syria, to the north and northeast, is treated as foreign territory, like the Mediterranean provinces; the east bank of the Jordan is not. Tosefta 1:7 adds to Mishnah 1:3; Tosefta proffers that a city’s hinterland (tehum) is treated as the city is. That is, if the city is considered inside the Land, so is the entirety of its hinterland; if not, neither is its hinterland. (b) Tosefta 1:4, read with Mishnah 1:1b (as the Mishnah student using Toseftan material would do), provides information about the evolution of the law—a kind of legal-historical criticism. (c) The remainder of the Tosefta passage deals with two related matters. Why make the legal requirement’s differentiation between the Land and outside the Land in the first place? What are the procedures envisaged when the requirement cannot be met? The information relevant to the latter issue, illuminates the former, because the requirement specified at Mishnah 1:1 obviates considerable legal process and related travel (cf. Tosefta 1:3) that otherwise would have to be undertaken.

50  These are the types of figures one finds defended throughout Neusner, Purities, Part 21 and Neusner, Tosefta: An Introduction. As in any exercise of classification—for placing Tosefta passages in one category or another by reason of how they would serve Mishnah study is exactly such an exercise—different scholars might well classify many passages differently. The precision of the figure is not important to our argument; it is the figures general amplitude that is. We are dealing with the majority of Tosefta’s passages.

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In sum, when Tosefta, used as a companion and aid to Mishnah study, engages in such exercises, what is it modeling as part and parcel of rabbinic ethos and competencies? First, and most obviously, that Mishnah study supremely matters, since, reciprocally, Mishnah provides the intelligible context for Toseftan passages, and Mishnah study commands elucidation, here aided by Tosefta. Second, Tosefta models furthering Mishnah’s exercises of categorizing things to build a coherent and complete taxonomy of the “world” ordered by the application of Torah law. Third, Tosefta displays the worth of getting behind and underneath Mishnah’s rulings—the law used to be this, then became that—proffering a kind of “historical criticism” of a Mishnaic law. In a similar vein, elsewhere, but not in our passage, Tosefta implicitly models source criticism; rulings that appear anonymously in Mishnah are attributed in Tosefta to one or another named disputant. Or a ruling attributed to one master in Mishnah, is attributed to a different master in Tosefta. When such a Toseftan passage serves Mishnah study, the implication is that the attributed legal view has been transmitted from the one named tradent to the other, offering a sort of tradition history. Fourth, Tosefta models ramification or completion of Mishnah’s law, sometimes spelling out practice and procedures where Mishnah has none. Fifth, and perhaps related to the last-mentioned point, Tosefta seems implicitly to invite the Mishnah student to pose and address “why”-type, “what”-type, and “how”-type questions. Question: “Why” must the agent bringing a writ of divorce from abroad have to declare that it was written and signed in the agent’s presence? Answer: to obviate undue burdens on those concerned. Question: “What” type of evidence suffices to authenticate a writ of divorce the validity of which is challenged? Answer: as given in Tosefta. Question: “How” does one proceed when the agent cannot testify to having seen the writ written and signed? Answer: as given in Tosefta. Some of these five modes of Mishnah-engagement modeled in Tosefta seem direct extensions of what we identified in my antecedent chapter as implicitly conveyed in Mishnah’s own pervasive rhetorical traits and conventions.51 At least one of these five “Toseftan modes” seems quite different, the modeling of source or historical criticism of the origins or evolution of the Mishnaic law. Here, when used to serve Mishnah study,  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 28–36.

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one would see in Tosefta a distinctive penchant to portray and invite the consideration of a tradition history that may underlie the Mishnah text. This penchant is explicitly expressed among the rhetorical jargon of the Jerusalem and Babylonian Talmuds, when the latter documents ask of a Mishnah passage, “Who taught [this Mishnaic legal position]?” In the Talmuds, this query often introduces a search for relevant beraitot (Toseftan and Tosefta-like passages) in which traditions attributed to named authorities may be compared to the anonymously articulated position in Mishnah.  osefta as “Supplement” to Mishnaic “Chapters” T All participants in the modern scholarly debates about the relationship of Tosefta to Mishnah recognize that a class of Toseftan passages display a greater literary independence from Mishnah. Such materials account for between 20% and 33% of our Tosefta.52 They appear to be tacked on to Toseftan passages that have a closer literary-rhetorical relationship to the Mishnah text, and are positioned where best they fit topically, usually after53 Toseftan materials that cite and comment upon or that complement, explicate, or “infill” Mishnah. Neusner has chosen the term “supplement” to describe them; other scholars have used other descriptors. Hauptman would tend to include these supplemental materials among those that were added to what she has called “core” Tosefta. She notes that others have observed that Toseftan materials that appear to have a more distant literary-historical relationship with Mishnah passages tend not to have parallels among the beraitot cited in the Talmuds.54 All the same, “our” Tosefta includes these “supplementary” materials, the micro-literary-rhetorical traits of which still closely resemble those of other Toseftan materials, on the one hand, and Mishnah, on the other. In situ, that is, placed in a document the whole of which came to be a “companion” in Mishnah study, what is their modeling effect on engagement with Mishnah by its devoted cadre of life-long students? I suggest two possible, and possibly related, answers to this query? First, perhaps what is modeled is attention to Mishnah’s topical and subtopical vacuums, of which there are many. As mentioned in my

 In Neusner’s accounting in Tosefta, an Introduction.  An observation strongly asserted by Neusner, see his Tosefta, an Introduction. 54  See Hauptman, “Does the Tosefta precede the Mishnah?” 52 53

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antecedent essay,55 Mishnah oscillates between appearing minutely comprehensive in many places, on the one hand, as when it models engaging in highly specific taxonomic-legal exercises, and, on the other hand, appearing grossly deficient at other junctures, as when Mishnah seemingly ignores many topics that would be germane to a tractate’s theme, if one were trying to provide a usable legal framework within which to operate. The inclusion of these “supplementary” materials may model the importance of plugging some of these voids, where circulating “Tannaitic” traditions formulated independently of Mishnah are at hand. Second, perhaps the knowledge of extra-Mishnaic materials circulating independently of Mishnah itself begs important questions, such as, what is the status of these traditions, and how are they to be treated? The answer modeled in Tosefta is itself twofold: (1) they must be preserved, as they too are authoritative; and (2) they should be subsumed within the activities related to Mishnah study and Mishnah analysis, rather than studied on their own—the meaning they acquire by including them in a document which comes to serve Mishnah study. Again, we are here glimpsing the developing ethos of inner-group life and identity of mid- and late third-­ century to fourth-century rabbinic social formations. Tosefta’s Micro-Level Literary-Rhetorical Traits Notwithstanding the close literary-historical relationship that all modern scholars deem to exist between the majority of Tosefta’s passages and those of Mishnah—and whatever might be the historical direction of that relationship—it should not be taken for granted or viewed as a self-­evident, quasi-inevitability that Toseftan materials should display throughout and in abundance almost all of the same micro-rhetorical/literary traits identified as characteristic in Mishnah.56 This is the case not only when Tosefta appears to cite Mishnah, but also when it extends Mishnah’s treatment or supplements a Mishnah “chapter.” More specifically, Tosefta can formulate both attributed and unattributed declarative sentences that resemble Mishnah’s to a tee.

 Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 28–31.  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 31–36. These are more thoroughly discussed in Lightstone, Mishnah and the Social Formation of the Early Rabbinic Guild, chapters 2, 3, and 4, as well as in Neusner, Purities, Part 21. 55 56

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Let me rehearse that list of Mishnaic micro-literary-rhetorical traits and forms here, and offer my general impressions of Tosefta’s use of the same: 1. Using a very delimited set of joining language (e.g., and/but, which/that) to concatenate circumstances that define a case in the protasis of a declarative sentence; Tosefta displays the same use of joining language. 2. Permuting these circumstances to spin out a larger passage comprised of a number of cases to explore; Tosefta at many junctures does the same, sometimes extending further Mishnah’s treatment to additional cases. 3. Using highly laconic language; Tosefta passages often exhibit the same tendency, although at many junctures Toseftan passages serve to elaborate the language of correlative Mishnah pericopae, in effect mitigating to some extent Mishnah’s highly laconic tendencies. 4. Repeating lexical terms or lexical opposites (e.g., which gave birth vs. which had not given birth) to create balance and cadence; Toseftan passages routinely exhibit the same penchant. 5. Repeating morphological forms and phraseology across several passages and thereby helping to mark these passages as part of a common thematic unit; Tosefta frequently repeats both morphological forms and phrases across several passages, but more rarely does Tosefta use such techniques to mark out an entire thematic “chapter,” because rarely does Tosefta appear, in situ, to have “chapters” of its “own.” 6. Constructing typically Mishnaic declarative sentences, attributed says, disputes, debates, and precedent stories. All of these traits, then, characterize both Mishnaic and Tosefta materials, with some differences as noted. At the micro-literary-rhetorical plane, Mishnah passages and Toseftan passages are clearly playing in the same literary-cultural and rhetorical ballpark and, consequently, one in which members of the same social formation are playing. Yet, despite these significant and probative similarities in micro-literary-­ rhetorical traits and formal constructs there are differences in penchant and tendencies that distinguish Mishnaic and Toseftan materials, just as there were at the macro- and intermediate-literary-rhetorical levels discussed earlier. Here the differences are less of kind, than they are of degree. But they are differences that, again, “make a difference,” as Jonathan

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Z. Smith might say.57 Wherein are these differences at the micro-literary-­ rhetorical level, and to what effect? Foremost, it is my distinct impression that, in service of elucidating Mishnah, Tosefta seems to have a significantly greater penchant than Mishnah to provide attributions, disputes, debates and precedent stories, because Tosefta often supplies them where Mishnah has none. The literary-­historical reasons for this are not as important for this study as the effect on the ancient Mishnah student using Toseftan materials as an aid to Mishnah study. Permit me to elaborate, because it rehearses a key methodological stance of this chapter. Let us hypothesize, just for the moment, that this greater penchant reflects the tendencies of the common pool of traditions upon which the authorships of both Mishnah and Tosefta drew. Perhaps it is not that the composers of Tosefta had a greater penchant for use of these literary-­ rhetorical forms, but that Mishnah’s authorship had a lesser penchant for their use than that displayed in the pool of source materials from which Tosefta’s authorship also drew. Such considerations take us back into the literary-historical debates that this chapter has expressly chosen to bracket for its purposes. As a reminder, methodologically, we are “playing the ball as it lies”; “our” Tosefta came to serve as a companion in service of the study of “our” Mishnah. This is “our” in situ. Therefore, Toseftan materials, in situ (namely, situated in a document that came to serve Mishnah study), display at the micro-literary-rhetorical plane the same penchant already seen at other levels to engage in the first tentative exercise of exegetical explication, critical analysis, and source criticism of Mishnah. How so? Let me highlight several. By proffering attributed sayings, disputes, and precedent stories where Mishnah has none, the engaged student of Mishnah is, as it were, taken behind the correlative Mishnaic ruling to consider its alleged sources. This anonymous ruling in Mishnah is, according to Tosefta, from rabbi x, or was disputed by rabbi y, or stems from this alleged incident conveyed in a precedent story in which rabbi z ruled in such-and-such a way. By presenting a greater number of disputes-cum-debates, where Mishnah has a dispute only, or perhaps an anonymous ruling only, Toseftan materials, again in situ, model asking, Why? Why did rabbi x rule differently than rabbi y? What would rabbi y say to counter rabbi x and vice versa? Why can one, or 57  See, again, David M. Freidenreich, “Comparisons Compared: A Methodological Survey of Comparisons of Religion from ‘A Magic Dwells’ to ‘A Magic Still Dwells’,” 80–101.

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cannot one, differently classify the circumstances of the case than Mishnah does, just as do rabbi x and rabbi y in a dispute preserved in Tosefta? Furthermore, in mitigating somewhat Mishnah’s hyper-laconic formulations, by inserting what appears in situ to explicate Mishnah’s “shorthand,” Toseftan passages model the Mishnah student’s task of interpolating additional content into a Mishnah passage to render it more intelligible. The Mishnah student, like such a Toseftan passage has done, must ask, what are the circumstances that Mishnah is actually dealing with here? So far, I have pointed to literary-rhetorical constructs found in both Mishnaic and Toseftan materials, but with respect to which Mishnaic and Toseftan usages differ in frequency. As noted, it is my observation that attributions, disputes, debates, and precedent stories are used more frequently in Toseftan passages than Mishnah. To conclude this section of the essay, I wish to focus on two formal literary-rhetorical constructs that appear in Tosefta, but seem decidedly “un-Mishnaic.” They are (1) the “redirected dispute” (my nomenclature), and (2) a formal construct which in one or another of its variations is core not to Mishnah, but to much of the Halakhic Midrashim, and, yet, appears in limited fashion among Toseftan passages. Because these are so “un-Mishnaic,”58 permit me to provide an example of each. The “redirected dispute” requires one or another variation of the typical Mishnaic (or Toseftan) dispute as an intelligible context, such as (i) Circumstances c; (ii) Rabbi x says + ruling r; (iii) Rabbi y says + ruling not r. The “redirected dispute” also displays several variations, but typical would be: (i) Rabbi x and Rabbi y did not dispute concerning circumstance c, (ii) [to] which ruling r [applies]. (iii) Concerning what did they dispute? (iv) Concerning circumstances c′, (v) [Concerning] which 58  For a more fulsome presentation of what is typically Mishnaic, one may consult my antecedent essay to this one, Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 27–36.

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(vi) Rabbi x says + ruling r, (vii) And Rabbi y says + not r. My antecedent chapter linked pervasive literary-rhetorical conventions in Mishnah to normative, group-formative skills and traits by reason of the importance of Mishnah study to the inner-group life of the early rabbinic group. In that essay, I described some of these core skills and traits as detailed matrix construction and differentiation.59 I argued that what Mishnah modeled was the ability to classify circumstances, real or imagined, by varying constituent elements that together comprised cases in order to explore whether this or that Torah-based rule applied to this or that configuration of the circumstances. Disputes, in addition to expressing the importance of preserving differing opinions of revered rabbinic masters—a reflection, perhaps, of the ethos of discipleship as well as “big-­ tent” inclusivity60 among the early rabbis—also provided opportunities to ask, why might one legitimately classify a case one way as well as another, as the disputants do? The “redirected disputes” in Tosefta, again in situ, proffer examples of such analyses in which the result may be characterized as follows: on further examination, one cannot argue for paths that legitimately lead to each of the two disputants’ conclusions. Therefore, if we have two preserved, opposing rulings about this topic, we must posit a revised set of circumstances that result in a closely related, but not identical, putative situation, concerning which rabbi x and rabbi y might legitimately disagree. Tosefta Gittin 1:8–9, which in situ explicates and complements Mishnah Gittin 1:5, shows how a Toseftan passage may typically use the “redirected dispute.” Provided below are, first, the Mishnah passage, followed by the Toseftan pericope. As I have done earlier, language in Tosefta that reflects verbatim that found in the correlative Mishnah text is in boldface. First, Mishnah Gittin 1:5: a. Any writ that has upon it [the signature of] a Samaritan witness b. is unfit,  Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” 36–37.  For the “big tent” tent interpretation of the significance of the preservation of disputes in early rabbinic legal sources, I am reliant on the writings of Shaye Cohen. See, for example, Shaye J.D. Cohen, “The Significance of Yavneh: Pharisees, Rabbis and the End of Sectarianism,” Hebrew Union College Annual 55 (1984), 27–53. 59 60

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c. except for writs [of divorce] of women and manumission papers of slaves. d. It once happened that they brought before R.  Gamaliel in Kefar Otnai a writ [of divorce] of a woman, e. and its witnesses were Samaritan witnesses, f. and he declared [it] fit. g. Any bonds issuing from [court] bureaus of the gentiles, h. even though their signatories are gentiles, i. are fit, j. except for writs [of divorce] of women and manumission papers of slaves. k. R. Simeon says: Also these are fit. l. They specified [that the latter were unfit] only when they were done in a nonprofessional tribunal. [m. Gittin 1:5, trans. my own61] Now, Tosefta Gittin 1:8–9: a. R. Judah says: Even though its two witnesses are Kutim [Samaritans], b. it is fit. c. Said R.  Judah [the following] once happened: they brought before R.  Gamaliel to Kefar Otnai a writ of divorce, and its witnesses were Kutim [i.e., Samaritans], d. and he declared it fit [m. 1:5d-f]. e. Any bonds issuing from [court] bureaus of gentiles, even though their signatories are gentiles [m. 1:5g–h]— f. R. Akiva declares fit in the case of all of them, g. and sages declare [them] unfit in the case of writs of divorce and in the case of manumission papers of slaves [m. 1:5j]. h. Said R.  Eleazar son of R.  Yose: Thus they said to the elders at Sidon: R.  Akiva and the sages did not dispute concerning bonds issuing from [court] bureaus of gentiles, that even though their signatories are gentiles i. [they] are fit. j. Concerning what did they dispute? 61  Based on Jack N. Lightstone, Mishnah and Social Formation of the Early Rabbinic Guild: A Socio-Rhetorical Study, with an Appendix by Vernon K. Robbins (Waterloo, ON: Wilfrid Laurier Press, 2002), 26.

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k. Concerning [those] that were done in a non-­professional tribunal [m. 1:5l]— l. that R. Aqiva declares fit in the case of all of them, m. and the sages declare [them] unfit in the case of writs of divorce and in the case of manumission papers of slaves. n. Rabbi Simeon b. Gamaliel says: Even writs of divorce and manumission papers of slaves are fit in the case of a place [in] which an Israelite does not sign. [t. Gittin 1:8–9, trans. my own62] Sections a–d of Tosefta effectively complement Mishnah a–f. The Mishnah student would gather from Tosefta that Judah is the tradent of Mishnah’s precedent story involving Gamaliel, and according to Tosefta, Judah would, like Gamaliel, dispute Mishnah’s anonymous ruling. Permit me to point out that Tosefta a–b is unintelligible without Mishnah a–c. The remainder of the Toseftan passage (e–n) corresponds to Mishnah g–l. First, Tosefta e–n takes up the dispute at Mishnah g–k, attributes Simeon’s view in Mishnah to Aqiva, and attributes the anonymous view in Mishnah to the equally anonymous “sages.” In situ, this amounts to a simple bit of source criticism provided by Tosefta: Simeon’s view derives from Aqiva. Tosefta h now uses attributional formulae in the perfect tense (“Said R. ….” and “Thus they said” + setting) to flag what follows, which is a complete reconstruction of the disputants’ positions as a form of analytic criticism. Aqiva and the sages did not dispute the case adduced in Mishnah; on that case they agree. Rather it is on some other, related case that they disagree. Tosefta n glosses the forgoing by providing an even more lenient view; in regions where Jews do not sign legal documents, gentiles’ signatures will do, even if in other jurisdictions they would not do. Simple formularies, chief among them a variation of the “redirected dispute,” suffice to build such un-Mishnah-like analyses of Mishnah. Again, the effect of reading Mishnah in light of Tosefta pushes the Mishnah student to engage in both source and tradition-historical analysis of Mishnah. As noted above, some Toseftan passages exhibit (or anticipate) typical halakhic-midrashic literary-rhetorical constructs. I have not documented how frequently these occur in Tosefta.63 My impression is that such  Based on Lightstone, Mishnah and Social Formation, 84, based on the Zuckermandel ed.  Nor am I aware of a study that has.

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constructs are relatively scarce in Tosefta. But “relatively” is a slippery term, since as we shall see, they are present, and in materials that complement Mishnah; that is to say, in situ, they rely upon the Mishnah text, or the effective replication of the Mishnah text in Tosefta, for an intelligible context. For an example of such a halakhic-midrashic construct, I return to Mishnah Bekhorot 1, only the first part of which was cited earlier, followed now by the entirety of Tosefta Bekhorot 1:1–2. Again, Toseftan language that is identical to that in the correlative Mishnah passage appears in boldface. First, Mishnah Bekhorot 1:1a–1b: 1:1a a. 1. He who purchases the fetus of an ass of a Gentile[, and the fetus when born will be a firstborn, if it is a male], 2. and he who sells to him [the Gentile, the fetus of an ass], 3. even though it [such a sale] is not permitted 4. and he who forms a partnership with him [the Gentile, so that they co-own the fetus], 5. and he who receives [a pregnant ass] from him [a Gentile], 6. and he who gives [a pregnant ass] to him [a Gentile] in trust—. b. is exempt from the law of the firstborn, c. as it said, “Of an Israelite” (Num. 3:13), d. but not of others. 1:1b a. Priests and Levites are exempt [from the law of the firstling (Rashi: as regards the firstling of an ass)] b. from an argument a fortiori: c. If [the Levites] redeemed that [animal] of an Israelite in the wilderness, it is logical that they should [automatically have] redeem[ed] their own. [m. Bek. 1:1a–1b, trans. my own64] Now, Tosefta Bekhorot 1:1–2:

64  Based on Jack N. Lightstone, The Rhetoric of the Babylonian Talmud, Its Social Meaning and Context (Waterloo: Wilfrid Laurier University Press, 1994), 175.

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1:1 a. 1. H  e who purchases the fetus of an ass of a Gentile[, and the fetus when born will be a firstborn, if it is a male], 2. and he who sells to him [the Gentile, the fetus of an ass], 3. even though it [such a sale] is not permitted 4. and he who forms a partnership with him [the Gentile, so that they co-own the fetus], 5. [that is,] he who gives to him within a partnership 6. and he who receives [a pregnant ass] from him [a Gentile], 7. and he who gives [a pregnant ass] to him [a Gentile] in trust ─ b. is exempt from the law of the firstborn, c. as it said, “Of an Israelite” (Num. 3:13), d. but not of others. 1:2 a. And so you [must] say in the case of priests and in the case of Levites. b. Because, since the priests and the Levites are liable in the case of a clean animal, one might [think] them to be liable in the case of an unclean animal. c. Scripture [however] says: “Of humankind and of animal-­kind” (Ex. 13:2; Num. 18:15)— d. that which applies to you in the case of humankind applies to you in the case of animal-kind. e. That which does not apply to you in the case of humankind does not apply to you in the case of animal-kind. f. [Thus] they exempted the Levites from the law of the firstling of an unclean beast. g. But they give the redemption for firstborn son and the redemption for the firstling of an ass to the priests only [despite priests and Levites being similarly exempted as stated above]. [t. Bek. 1:1–2, trans. my own65]

65  Based on Lightstone, Rhetoric of the Babylonian Talmud, 190–91, based on the Zuckermandel ed.

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Earlier, this essay discussed how Tosefta 1:1 serves to explicate Mishnah 1:1a. I will not go over the same ground here, but focus, rather, on Tosefta 1:2. Tosefta 1:2 explicates Mishnah 1:1b (=Tosefta 1:1, c–d) in a way that we have not yet seen in this paper. Tosefta 1:2 first alerts us to the fact that what follows is intended to shed light on Mishnah 1:1b’s ruling. Tosefta 1:2 then goes on to provide not only a more elaborated argument from Scripture than Mishnah 1:1b, but also one founded on an entirely different exegesis, based on Ex. 13:2 (=Num. 18:15) rather than Num. 3:13. Only when viewed against the background of its like in the Halakhic Midrashim,66 does the argument in Tosefta 1:2 appear to follow a strict conventional form: . rabbinic ruling (here a reference to Mishnah’s ruling); 1 2. a logic-founded, legal conjecture (here a legal analogy) that points to a (false) conclusion that does not accord with the ruling at 1 (“Because, since” the law is x under circumstances a, “one might think” the law is also x in the case of a′); 3. “Scripture says” + citation; 4. argument based on scriptural citation (here the citation points to an alternative, more-appropriate analogy); 5. re-stated legal position conforming to the normative ruling given at the outset. The upshot of this literary–rhetorical construct is this: without the fullest attention to all relevant scriptural data—understood to be both necessary and sufficient—legal logic alone, or legal logic based on only part of the scriptural evidence, will lead to an erroneous ruling. As remarked, however frequently or infrequently this formal construct appears in Tosefta, two matters are worth noting, again. This formal 66  These formalized constructs in the Halakhic Midrashim are well known and well documented. I have done so in Jack N. Lightstone, “Form as Meaning in the Halakic Midrash: a Programmatic Statement,” Semeia 27 (1983) 27: 23–36. Even more comprehensively, so has Jacob Neusner, in, for example, Uniting the Dual Torah: Sifra and the Problem of the Mishnah (Cambridge: Cambridge University Press, 1990), and David Weiss Halivni, in Midrash, Mishnah and Gemara: The Jewish Predilection for Justified Law (Cambridge: Harvard University Press, 1986). While Halivni and Neusner draw diametrically opposed literaryhistorical conclusions from their comparative study of Mishnaic and Halakhic-Midrashic literary forms, they both have contributed to the characterization of the differences in these documents’ literary conventions.

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rhetorical structure is virtually absent from Mishnah and this structure, or one or another of its variations, is a core rhetorical building block of the corpus of halakhic-midrashic literature: Sifra, Sifre Numbers, Sifre Zutta, Sifre Deuteronomy, and the two Mekhiltas. In a Tosefta that serves Mishnah study, this formal halakhic-midrashic construct represents a revolutionary turn in the critical analysis of Mishnah’s substance. It signals the beginning of the need not only explicitly to ground Mishnaic teachings in Scripture (which to a limited degree, Mishnah itself undertakes, and Tosefta pursues more frequently still), but also to make rational-legal argument and analysis, everywhere demanded of the Mishnah student, subject to, and perhaps subservient to, highly formalized scriptural-exegetical justification.67

Concluding Observations The literary-rhetorical traits of Tosefta, taken as a whole in situ, that is, as a composition which in the mid- to late third century comes to serve Mishnah study, seem indirectly and implicitly to covey a number of messages about the nature of being a rabbi. First, whether at the macro-, intermediate, or micro-literary-rhetorical levels, Tosefta would serve to confirm the centrality of Mishnah study and Mishnah’s topical agenda as objects of sustained contemplation and comprehension. Nor is this a circular argument, reflecting the manner in which we have chosen to define the use of the composition of Tosefta. Rather this conclusion devolves from the fact that Mishnah’s topical and subtopical agendas have determined how materials have been gathered and ordered in Tosefta. Even Toseftan materials that “supplement” Mishnah’s topics and are wholly independent of the Mishnaic “chapters” that they serve to supplement, nonetheless, highlight Mishnah’s centrality. As Neusner began asserting at the end of the 1970s,68 Tosefta has no agenda of its own (and this would still be true, even if it were demonstrated that Tosefta’s compilers have halakhic views of their own that differ in  I argued this point long ago in Lightstone, “Form as Meaning in the Halakic Midrash: a Programmatic Statement,” 23–36. As does Neusner in Uniting the Dual Torah. 68  See J. Neusner, Purities, Part 21; see also his Tosefta, An Introduction and his Bavli that Might Have Been. 67

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consistent ways from those of Mishnah’s authorship). Indeed, a Toseftan “chapter” is a literary unit without comparable, significant literary signs of unity or coherence on its own, apart from the Mishnah “chapter” to which it is topically correlated. Furthermore, time and time again, Toseftan passages are not fully intelligible on their own, but appear to assume that the reader has the relevant Mishnah passages in hand. Simply put, Tosefta is a document that assumes its readers are readers of Mishnah, and that assiduous reading of Mishnah makes one a rabbi. Else the entire enterprise of bringing together Tosefta’s materials in the document in hand, formulated (as well as ordered) as they are, would be pointless, when they might have been formulated to stand on their own as an autonomous fully intelligible document with its own agenda and purpose.69 Second, since so much of the micro-literary-rhetorical traits of so many Toseftan passages are so Mishnah-like, we may conclude that the professional skills and traits modeled in Mishnah for the early rabbinic movement are also modeled in Tosefta. These include, as argued in my earlier chapter, command (or acquisition of command) of biblical law and of an elaborate halakhic tradition that in many instances stands logically (and historically) between biblical law and Mishnah’s passages, providing the student of the latter with background essential to its comprehension. They especially include the inculcation of taxonomic discernment aimed at considering whether fine differences that might distinguish one closely related circumstance from another are differences that warrant a different legal ruling. And typically, Mishnah-like disputes in Tosefta similarly invite the reader to question why one authority might classify matters in one way, while another would take the opposite tack. Finally, both background knowledge and taxonomic acumen are required to “in-fill” the highly laconic sentences that characterize both Mishnah passages and many Toseftan passages that exhibit the same type of extreme economy of language as Mishnah. Third, Toseftan passages, when read as aides to Mishnah study, not only convey similar meanings about early rabbinic ethos and identity by way of 69  As Hauptman has in effect argued in one of her essays for what she calls “core Tosefta”; see Hauptman, “Does the Tosefta Precede the Mishnah?” 224–240.

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seeming to imitate Mishnah, but also by the ways Tosefta serves to augment Mishnah. For example, sometimes a Tosefta passage, in situ, is seen to interpolate explicatory language into Mishnah. At other junctures, Tosefta supplies debates for Mishnah’s disputes. In these instances, the Toseftan passage is seen to do what Mishnah’s dispute implicitly begs to be done: to ask, “Why would two authorities disagree, and how would one authority respond to the other?” Fourth, and unlike any skill implicitly demanded of the Mishnah student by reason of Mishnah’s own dominant literary-rhetorical traits, Tosefta passages serve, in situ, to begin to apply a type of tradition-­ historical or source-critical approach to Mishnah. When a Toseftan passage contains an attribution to an authority or has proffered a dispute, where Mishnah has neither, Tosefta serves to try to “get behind” the apparent anonymity of so much of Mishnah’s content. When Tosefta uses a “redirected dispute,” a literary-rhetorical construct not characteristic of Mishnah, the reader of the Toseftan passage is being exposed to a critique of Mishnah’s taxonomy. In effect, Tosefta’s redirected dispute states that the differentiation conveyed in Mishnah’s dispute has no foundation; so, one must redefine the circumstances about which the disputants differed. Tosefta then offers a “historical” source in the redirected dispute to legitimate doing so. An additional element of critique—actually an emergent historical source-criticism of another kind—sees its initial expression in Tosefta in the still-limited use of halakhic midrashic constructs, where formalized Scripture-based analysis, not taxonomic-halakhic reasoning alone, is demonstrated to underpin a Mishnah ruling. This fourth element modeled in Tosefta, Mishnah criticism (i.e., Which authority lies behind this? Does it really make sense that two authorities would dispute this, or must they have disputed something at a more refined level? Can taxonomic-halakhic reasoning really underpin this, without attending to what is encoded in Scripture?) represents something truly new. It is more than Tosefta serving to model what is already implicit in Mishnah’s traits. Moreover, more than any other characteristics of Tosefta that have been adduced in this chapter, these forms of Mishnah criticism attest to a subtle, but probably inexorable, shift in the inner-­group activities that informed early rabbinic identity and fashioned the movement’s social cohesion. That shift can be described as one that overlays the valuing of perfecting high-grid-matrix-making with the valuing of textual-, historical-, and source criticism of a document, the

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Mishnah. And that subtle shift, modeled in Tosefta when its materials are used in Mishnah study, becomes an increasingly dominant trend as one moves to the inner-­group rabbinic activities reflected later in the dominant literary-rhetorical traits of the Jerusalem Talmud and, ultimately, in the Babylonian Talmud, the first rabbinic document the study of which came, eventually, to supplant the study of Mishnah as the core curriculum of being a rabbi. One may say that, when serving Mishnah study, the literary-rhetorical traits of Tosefta’s materials mark the first beginnings of a transition in the nature of the inner-group ethos of the early rabbinic movement, from grid-making, differentiation-discerning, would-be scribal retainers to the limited Jewish-aristocratic administration of post-Bar Kokhba Roman Palestine, to something of an increasingly more scholastic group, ultimately centered, centuries later, in the great rabbinic academies (yeshivot) of the Mesopotamian-Babylonian plain.70

70  This historical transition is the object of discussion in the last chapter of my book, Rhetoric of the Babylonian Talmud.

CHAPTER 9

Studying Mishnah “Talmudic-ly”: What the Basic Literary-Rhetorical Features of the Talmuds’ Legal Compositions and Composite “Essays” Tell Us About Mishnah Study as an Identity-Informing Activity Within Rabbinic Groups at the End of Late Antiquity Jack N. Lightstone

Introduction: Questions and Targeting a Specific Type of Evidence in Response This chapter is my third about traits and competencies, engendered by devoted Mishnah study, that constituted elements of the shared identity of the early rabbinic social formation in Late Antiquity. In this introduction,

J. N. Lightstone (*) Brock University, St. Catharines, ON, Canada © The Author(s) 2020 S. Fishbane et al., Exploring Mishnah’s World(s), https://doi.org/10.1007/978-3-030-53571-1_9

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I briefly unpack the foregoing statement and then describe how this third chapter will complete the first two.1 Well-founded descriptions of the historical processes that led to the first formation of the early rabbinic movement may be known only in general terms, and these often appeal to factors that are quite external to the rabbinic group itself. Appeals are made to the destruction of the Jerusalem Temple and its associated institutions, and to the resulting political, cultural, and religious impact upon Jewish society in the Land of Israel (and beyond). The pre-destruction pattern of Jewish sectarianism is sometimes proffered as a factor in the formation of the early rabbinic movement in two senses. One, the early rabbis are said to have been an outgrowth of one such sectarian group, the pre-70 CE Pharisees. Two, the nascent rabbinic movement sought to avoid the descent into sectarianism after 70 CE by propounding a “big-tent” approach to its own group.2 The social and economic crisis, including significant displacement of the Jewish population that ensued within the Land of Israel at the end of the first third of the second century as a result of the failed Bar Kokhba rebellion, is normally understood to have played a role in the early phases of the formation of the rabbinic movement.3 The creation of the Jewish Patriarchate in the Land of Israel sometime in (the latter half of?) the second century, and the association of the early rabbinic group with the administration of the  The two antecedent papers in question appear in this volume under the titles, “Study as a Socially Formative Activity: The Case of Mishnah Study in the Early Rabbinic Group,” and “When Tosefta Was Read in Service of Mishnah Study: What Pervasive Literary-Rhetorical Traits of Toseftan Materials Divulge About the Evolution of Early Rabbinic Group Identity on the Heels of Mishnah’s Promulgation.” The former is a somewhat revised and retitled version of Jack N. Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” Studies in Judaism, Humanities and the Social Sciences 1.1 (2017): 23–44. The latter is a somewhat revised and retitled version of Jack N. Lightstone, “Textual Study and Social Formation, Part II: Does the Evidence of Tosefta Confirm that of Mishnah?” Annual Review of Studies in Judaism, Humanities and the Social Sciences (forthcoming). 2  This has been argued, for example, by S.J.D. Cohen in his well-known article, “The Significance of Yavneh: Pharisees, the Rabbis and the End of Sectarianism,” Hebrew Union College Annual 55 (1984): 27–53. 3  Seth Schwartz in particular has put forward the view that the two failed rebellions in the Land of Israel against Rome left the Jewish communities of the homeland, especially in Judah, in a state of severe cultural, economic, and religious depression with serious deficits and voids in all these areas of society. In his view, this catastrophic decline was also magnified by what he believes was a slow, constant decline that had already begun to take place in the first twothirds of the first century as a result of Roman mismanagement of the area after the death of Herod. See Seth Schwartz, The Ancient Jews: From Alexander to Muhammad (Cambridge: Cambridge University Press, 2014), cf. chapters 3, 4, and 5, as well as his Imperialism and Jewish Society: 200 BCE to 640 CE (Princeton and Oxford: Princeton University Press, 2001). 1

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Patriarch and with the family of the Patriarch itself, is also thought to have supported in some significant fashion the institutionalization of the early rabbinic guild as a retainer class to the Patriarch’s administration.4 The attribution of the late second- or early third-century production of the Mishnah, the first authoritative literary5 creation of the rabbis, to the agency of Rabbi Judah the Patriarch is (rightly) understood to reflect both actual and aspirational aspects of the third-century rabbis’ symbiotic and patron-client relationship with the Patriarchate.6 4  See, for example, Lee I. Levine, The Rabbinic Class of Roman Palestine in Late Antiquity (New York: Jewish Theological Seminary of America, 1989), translated from his Ma’amad Hakhamim (Jerusalem: Yad Yitzhaq Ben-Zvi, 1985). See also, for example, the work of Catherine Hezser, The Social Structure of the Rabbinic Movement in Roman Palestine (Tübingen: Mohr Siebeck, 1997). On the origins and development of the Jewish Patriarchy in Roman Palestine, see also: David Goodblatt, The Monarchic Principle: Studies in Jewish Self-Government in Antiquity (Tübingen: Mohr Siebeck, 1994), 131–231; Lee I.  Levine, “The Status of the Patriarch in the Third and Fourth Centuries: Sources and Methodology,” Journal of Jewish Studies 47 (1996): 1–32; Shaye J.D. Cohen, “Patriarchs and Scholarchs,” Proceedings of the American Academy of Jewish Research 48 (1981): 57–85; Martin Jacobs, Die Institution des jüdischen Patriarchen (Tübingen: Mohr Siebeck, 1995). 5  I use the term “literary” without intending to prejudice discussion about the relative roles of written versus oral composition of the Mishnah in whole or in part. Similarly, I am not here concerned with the relative role of oral versus written composition for any of the principal legal texts of the early rabbinic corpus referred to in this essay or in the two antecedent ones. I am partial to the conclusions of Yaakov Elman, “Orality and the Redaction of the Babylonian Talmud,” Oral Tradition 14/1 (1999): 52–99, whose position is that Palestinian rabbis made greater use of writing—for example, Mishnah and Tosefta, according to Elman, existed in writing sometime before the mid-fourth century, sometime before the shift from Middle Hebrew I to Middle Hebrew II—within a circle that still valued oral transmission and performance of texts, while the Babylonian rabbis continued more significantly to rely on oral transmission and formulation into the medieval period, even if they possessed texts (particularly of Palestinian provenance) in written form. Again, for the purposes of the argument of this paper and its two antecedent ones, the question of oral versus written composition is not relevant. 6  That some historical relationship existed between the Patriarch’s family and the early rabbinic group seems apparent, but precisely what role Rabbi Judah the Patriarch played in the production of Mishnah we can never really know. In recognition of this uncertainty, for example, Judith Hauptman resorts to using the designation “Rebbe” for the Mishnah’s author(s), expressly choosing to denude the term of any reference to a specific person or persons. See Judith Hauptman, “Does the Tosefta Precede the Mishnah? Halakhah, Aggada, and Narrative Coherence,” Judaism 50 (2001): 224–240; “The Tosefta as a Commentary on an Early Mishnah,” Jewish Studies, Internet Journal 4 (2005): 109–132. See also Judith Hauptman, Rereading Mishnah (Tübingen: Mohr-Siebeck, 2005). That the nature of the relationship between the rabbis and the Patriarch did not always live up to the rabbis’ expectations seems also apparent. The rabbis did not always get from the Patriarch the appoint-

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I will not spend time and effort on evaluating the historical impact, singly or in combination, of any of these factors on the establishment of the early rabbinic movement or guild. To deny that any of them were impactful is, it seems to me, to deny what is so historically probable as to be almost self-evident. Some of these events affected all Jews in the Land of Israel to a significant degree. And so, why not the early rabbinic group as well in the period of its early formation? That said, none of the forgoing sheds much light on what the early rabbis were. That is, what was core to their shared identity in the first few decades and centuries of their social formation? What were the bases for the group’s social cohesion? To such questions, little evidence from outside rabbinic literature provides answers. And using what traditions in rabbinic literature say about the rabbinic movement’s origins, development, culture, and identity is fraught with methodological hurdles.7 Several scholars have done good work here, despite the hurdles.8 But “correcting for” these traditions’ suspected, probable or obvious tendentiousness, anachronisms, “ideal” imaginings and wishful thinking is difficult, nonetheless. My work in this chapter and in its two antecedent ones9 complements these scholars’ endeavors by using evidence and an approach that circumvents many of these methodological difficulties. I look to evidence with two traits. (1) I seek evidence that sheds light on these issues “by the way”—derekh ha-gav, as the saying goes in modern Hebrew—in that the evidence both “reflects” and “models” core, early rabbinic, group identity without expressly talking about such matters at all. Therefore, it is less amenable to being shaped by anachronistic, apologetic, or idealistic motivations. (2) I look to evidence that is tied to frequently engaged-in ments to which they aspired. And as Lee Levine has reminded me in conversations, by the fourth century, the rabbis seem to be increasingly critical of the Patriarch. 7  As I have argued at length in my essay that is a prequel to my trio of papers on Mishnah study as a core, socially formative activity in early rabbinic circles. That prequel essay appears in this volume under the title, “Challenges and Opportunities in the Social Scientific Study of the Evidence of the Mishnah,” which is a somewhat revised version of Jack N. Lightstone, “Sociological and Anthropological Approaches to the Study of the Evidence of the Mishnah: A Call to Scholarly Action and a Programmatic Introduction,” Studies in Judaism, Humanities and the Social Sciences 2 (2019): 1–16. The earliest formulation of this essay was delivered as a paper at the annual meetings of the European Association of Biblical Studies, Cordoba, 2015. 8  And for examples of such scholarly work, I may point again to Lee I. Levine, The Rabbinic Class, and to Catherine Hezser, The Social Structure of the Rabbinic Movement. 9  See note 1.

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activity within the rabbinic group that is core to their social relations as group members and to the establishment of social cohesion among them. Life-long study with other rabbis and would-be rabbis is just such an activity.10 For at least 400 years, beginning near 200 CE, Mishnah study was at the center of the rabbinic curriculum, even if it did not by any means exhaust that curriculum. The production and collection of extra-Mishnaic traditions (beraitot), the compilation of many of these into the Tosefta, ordered for the most part in accordance with Mishnah’s tractates and constituent “chapters,”11 and the production of both the Jerusalem and 10  The evidence for this claim is presented in my first essay of the trio, appearing in this volume under the title, “Study as a Socially Formative Activity: The Case of Mishnah Study in the Early Rabbinic Group,” which is a somewhat revised and retitled version of Jack N. Lightstone, “Textual Study and Social Formation: The Case of Mishnah,” Studies in Judaism, Humanities and the Social Sciences 1.1 (2017): 23–44. 11  As stated in the footnotes to my second essay of this trio, “When Tosefta Was Read in Service of Mishnah Study: What Pervasive Literary-Rhetorical Traits of Toseftan Materials Divulge About the Evolution of Early Rabbinic Group Identity on the Heels of Mishnah’s Promulgation,” my own view about Tosefta’s relationship to Mishnah and to Tosefta’s production largely (but not entirely) accords with that of Jacob Neusner. See Jacob Neusner, Tosefta, An Introduction (Tampa: University of South Florida, 1992). See also J. Neusner, The Bavli that Might Have Been: Tosefta’s Theory of Mishnah Commentary Compared with the Bavli’s (Atlanta: Scholar’s Press, 1991). Neusner’s articulation of the relationship of Toseftan to Mishnaic materials is first substantively and coherently articulated in his History of the Mishnaic Law of Purities, Part 21 (Leiden: Brill, 1977). I base my inclinations not just on his work—and no one to my mind has compared as much of Mishnah to Tosefta than Neusner— but on my own comparisons of many dozens of Mishnah and Tosefta passages over the course of my own research, even though my research was not specifically directed to unraveling the literary-historical relationships between these two compositions. I find the nuanced articulation of Harry Fox on where he stands in this debate helpful. See Harry Fox’s extensive “Introduction” in Introducing Tosefta, eds. Harry Fox and Tirzah Meacham (New York: Ktav, 1999). See also Jacob Neusner, The Yerushalmi: An Introduction (Northvale: Aronson, 1993), 5–13, on relative dating of the completion of the Yerushalmi and the completion of our Tosefta. While I side with Neusner on Tosefta’s literary-historical relationship with Mishnah, I find his dating to the completion of “our” extant Tosefta to near the turn of the fifth century quite late, and certainly other recent scholarship, referred to below, would suggest an earlier date, if not for “our” extant Tosefta, then for some proto-version of it, akin to proto-Mark’s existence before our extant Mark in New Testament studies. Some of these scholars have also argued that a proto-Tosefta, still embedded in “our” Tosefta, predated Mishnah and was a substantial source and even model for Mishnah’s production (a view that I do not share, because I believe that preponderance of evidence speaks against it). Among these scholars are notably Hauptman, Houtman, Friedman, and Kulp, who have all argued for the historical-literary primacy of many Tosefta passages over their Mishnaic counterparts.

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Babylonian Talmuds all amply attest to the importance of the life-long study of Mishnah to the inner-group life of the rabbinic social formation over a period spanning approximately four centuries. Because Mishnah study in large part defined one as a bona fide member of the rabbinic group, if we ask, what does initial and life-long Mishnah study, with its particular, pervasive literary and rhetorical traits, demand as core competencies, then we will invariably know some core elements of shared early rabbinic identity. This is not evidence or an approach so easily undermined by rabbinic literature’s episodic ventures into ideal, wishful, or anachronistic thinking. Moreover, to trace continuities and developments in such core competencies over these 400 or so years is to be able to say something about the continuities and developments of rabbinic group identity itself over that period of time. How, then, does this third chapter fit among, and in some sense complete, the first two that precede it in this volume? The first of this trio examined the most pervasive literary-rhetorical traits of Mishnah itself in order to consider what its traits, taken on their own, required of Mishnah’s life-long students as core competencies and acquired antecedent knowledge. The second examined the dominant literary-rhetorical traits of Toseftan materials, when considered, in situ, as traditions pressed into the service of aides to Mishnah study. (It is unnecessary to summarize the results of these two antecedent studies, as they appear in this volume.) This paper now looks to the most general and pervasive traits of the legal See Joshua Kulp, “Organizational Patterns in the Mishnah in Light of their Toseftan Parallels,” Journal of Jewish Studies 58, no. 1 (2007): 52–78; Judith Hauptman, “Does the Tosefta Precede the Mishnah? Halakhah, Aggada, and Narrative Coherence,” Judaism 50 (2001): 224–240; “The Tosefta as a Commentary on an Early Mishnah,” Jewish Studies, Internet Journal 4 (2005): 109–132; Shamma Friedman, Tosefta Atiqta, Pesah Rishon: Synoptic Parallels of Mishna and Tosefta Analysed with a Methodological Introduction (Ramat Gan: Bar Ilan University Press, 2002); “The Primacy of Tosefta to Mishnah in Synoptic Parallels” in Introducing Tosefta, eds. Harry Fox and Tirzah Meacham, 99–121; Alberdina Houtman, Mishnah and Tosefta: A Synoptic Comparison of Tractates Berakhot and Shebiit (Tübingen: Mohr Siebeck, 1997). See also Judith Hauptman, Rereading Mishnah (Tübingen: Mohr Siebeck, 2005). A similar position on Tosefta may be found in Elizabeth Shanks Alexander, Transmitting Mishnah: The Shaping Influence of Oral Tradition (Cambridge: Cambridge University Press, 2009). Arguments such as those propounded by Hauptman, Houtman, Friedman, and Kulp have been assessed by Robert Brody in Mishnah and Tosefta Studies (Jerusalem: Magnes Press, 2014), who argues that the demonstration that a number of Tosefta passages preserve traditions that are older than their Mishnah parallels is not sufficient grounds for arguing for the existence of a proto-Tosefta that informed the Mishnah’s production. As far as I can tell, Brody does not deal with Neusner’s scholarship on Tosefta.

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compositions and composites of the Talmuds, the Yerushalmi, and the Bavli, in order to characterize how in each the study of Mishnah “talmudic-ly” (re-)defines Mishnah study and, in so doing, reflects and models skills and professional traits that may be core to rabbinic group identity several centuries after Mishnah’s initial promulgation. There is a certain irony12 involved in devoting an academic study to examining what shared traits and competencies (and therefore shared elements of group identity) are engendered by studying Mishnah “talmudic­ly” near the end of Late Antiquity, when the two Talmuds were produced and promulgated within the rabbinic movement.13 How so? Every student in a modern-era rabbinic yeshiva (a traditional rabbinic academy) and all alumni of these institutions will find my description of the most basic and pervasive literary-rhetorical structures and conventions of the Talmuds’ legal compositions and composite essays familiar fare, even if they might never have expressly articulated matters as I shall. But their manner of knowing these things is one that comes from “being inside the tent” as it is currently constituted, as it were, where the normalcy of studying Mishnah “talmudic-ly” (and this through the lens of centuries of commentaries) is simply taken for granted, since this is now the dominant (and, perhaps it is even appropriate to say, only) way Mishnah is studied in modern yeshivot. (Indeed, it is not illegitimate to say that the modern-era yeshiva student does not really think of himself, and now herself, as well, as studying Mishnah, but as studying the Talmud, that is, the Bavli, a point to which I shortly return.) By contrast, this chapter’s description of the most basic and pervasive literary-rhetorical traits, structures, and conventions of the Talmud’s legal materials locates them (in this third of a trio of studies) in a specific context, that is, an approximately 400-year evolution in placing Mishnah study at the center of rabbinic inner-group activity.14 This 12  The impetus for the entire paragraph that follows this sentence derives from a conversation with, and a suggestion from, Prof. Simcha Fishbane of Touro College during conversations at the meetings of the European Association of Biblical Studies, Helsinki, August 1, 2018. 13  For this paper, I will accept the current consensus on the dating of the production of the Yerushalmi and Bavli, respectively—near the turn of the fifth century for the former, and between the mid-sixth and early seventh centuries for the latter. 14  There are other examples of academic works which, in part, describe or re-describe in scholarly terms what may otherwise seem familiar and commonplace knowledge in the world of contemporary, yeshiva-based study of Talmud. Among them, for example, are parts of Richard Rubenstein’s The Culture of the Babylonian Talmud (Baltimore: Johns Hopkins University Press, 2003), cf. 30–53; of David Kraemer’s The Mind of the Talmud: An

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400-year evolution is the result of a series of choices somehow made within rabbinic circles about what Mishnah study entails, which, in turn and in sequence, became normative for members of the rabbinic movement. To use the word “choice” is to recognize that things could have been otherwise. There was nothing inevitable, for example, about preserving, collecting, and using extra-Mishnaic “Tannaitic” sources as aides to Mishnah study. Yet this is what happened, rather than consigning these traditions to the ash-heap, once the “official,” authoritative Mishnah was promulgated under (according to the rabbis) Judah the Patriarch’s authority. And indeed the “choices” subsequently reflected in the Talmuds concerning how “to do” Mishnah study are not identical in the Yerushalmi and Bavli, as I shall remark later in this chapter. Historical circumstances affecting rabbinic circles in the Land of Israel and in Mesopotamia near the end of Late Antiquity led to those “choices” reflected in the Babylonian Talmud’s basic and dominant literary and rhetorical structures and traits becoming entrenched in the medieval period. And it is that entrenchment that is reflected in today’s yeshiva students and alumni. As stated, they rarely, if ever, think of themselves as engaged in Mishnah study, but in Talmud study—specifically, the study of the Babylonian Talmud (the Bavli) with the aid of the meforshim, the principal medieval or early modern commentators on the Bavli’s text. Nor are the students and alumni of contemporary yeshivot necessarily conscious of the specifically identity-­ forming effects of their rabbinic forebearers’ choices to elevate Bavli study above Mishnah study itself. Consequently, the academic description of core and basic literary-rhetorical traits and structures of the Talmud’s legal compositions and composite essays, as intuitively familiar as they may be to today’s devoted students of the Bavli, provides even them, and certainly us social historians, with a vantage point from outside the tent and within a quite different interpretive context. Viewed in the context provided by the two chapters antecedent to this one, they and we gain purchase on the core identity-informing traits and competencies specifically engendered by the choices of the Bavli’s and Yerushalmi’s authorships to treat Mishnah “talmudic-ly.” Intellectual History of the Bavli (Oxford: Oxford University Press, 1990); parts of Shaye J.D. Cohen’s, “The Judean Legal Tradition and the Halakhah of the Mishnah,” in The Cambridge Companion to the Talmud and Rabbinic Literature, eds. Charlotte Elisheva Fonrobert and Martin S. Jaffee (Cambridge: Cambridge University Press, 2007), 121–43; sections of Jacob Neusner’s The Bavli’s One Voice: Types and Forms of Analytical Discourse and Their Fixed Order of Appearance (Atlanta: Scholars Press, 1991) and of his How the Bavli Is Constructed (Lanham: University Press of America, 2009).

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These last remarks provide a segue to the final point I wish to register in this introduction. This chapter focuses on core literary-rhetorical traits of legal discourse in the two Talmuds. Both Talmuds contain non-legal compositions and composites of a homiletic, folkloric, or mythopoeic nature, for which the generic name “aggadah” is used as a descriptor. Bavli, for example, includes “massive miscellanies” of aggadic materials carefully brought together.15 But the dominant discourse of both Talmuds is, arguably, legal/halakhic in subject matter.16 More to the point for this chapter, our interest lies in what the Talmuds reflect about norms for the conduct of Mishnah study, centuries after Mishnah’s initial promulgation as the core of the rabbinic curriculum. Mishnah is overwhelmingly legal in content, so much so that non-legal sections of Mishnah seem anomalous.17 And so, our focus on legal materials in the Talmuds is, in fact, part and parcel of our attention to Mishnah study and its evolution within early rabbinic circles as identity-(in)forming. Our principal question is, where will the Talmuds have taken Mishnah study as a centrally formative activity of early rabbinic identity formation?18 15   See Jacob Neusner, Bavli’s Massive Miscellanies (Tampa: University of South Florida, 1992). 16  About 80% of Bavli (and likely even more of the Yerushalmi) is devoted to the analysis of Mishnah or to topics and materials related to Mishnah analysis, and is, consequently, legal/ halakhic in nature. Neusner is unequivocal when on this point he states, in Jacob Neusner, First Steps in the Talmud: A Guide to the Confused (Lanham: University Press of America, 2011), 44ff, that four-fifths of Bavli’s discourse (its composites, compositions, and conglomerates) may be classified as either Mishnah commentary of various sorts (i.e., what does Mishnah mean? What is the basis of Mishnah’s rulings, including its basis in scripture? To what circumstances does it apply or not, who is the rabbinic authority behind which ruling? etc.) or the examination of other legal issues related to but not directly addressed in the analysis of the Mishnah text at hand, sometimes concerning abstract legal principles suggested by analysis of Mishnah. This leaves about 20% of Bavli’s sugyot, which may be classified as either Scriptural commentary or “other” content. Moreover, in The Rules of Composition of the Talmud of Babylonia (Atlanta: Scholars Press, 1991), 15, Jacob Neusner observes that the Bavli tends to consistently order these classes of materials: “Mishnah exegesis nearly always comes first, abstract legal speculation, last.” Rules of Composition is in some respects a synopsis of aspects of, and in other respects represents the underlying “spreadsheet” of quantified observations for, Jacob Neusner, The Bavli’s One Voice (Atlanta: Scholars Press, 1991). 17  Of course the largest “chunk” of non-legal material in the Mishnah is Tractate Avot, which most scholars view as not being integral to Mishnah at all. Avot is very much its own document, whether or not one subscribes to the view that it is a later addition to Mishnah. 18  With this focus, I am not here particularly concerned with the Talmuds in their own right or with the many questions and issues that pertain to how they came to be as they are and what they do, beyond what they might reflect about normative patterns of Mishnah study. This means, among other things, that I wish to look at the types of things Talmud does to/with Mishnah passages, when ostensibly illuminating the latter.

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Some Core, Pervasive Literary-Rhetorical Traits of the Yerushalmi’s and Bavli’s Legal Compositions In my opinion,19 the basic literary-rhetorical structural traits of the two Talmuds’ legal compositions, when specifically considered as exemplars of undertaking Mishnah study “Talmudic-ly,” are either startlingly similar or significantly different, depending upon the queries one brings to the evidence. I begin with the startlingly similar, basic, literary-rhetorical traits and structural norms of the two Talmuds. Despite the approximately two centuries separating the Talmuds (the turn of the fifth and the late sixth to early seventh centuries, respectively), and their different political, social, and cultural environments, the Yerushalmi and Bavli not only share a wealth of common Tannaitic and amoraic traditions.20 But also the very basic structural plans of the two 19  As I write this essay, I am in the final stages of writing an introduction to early rabbinic legal rhetoric. In this nearly completed volume I have attempted to introduce the novice reader of legal materials in Mishnah, Tosefta, the Halakhic Midrashim, the Yerushalmi, and the Bavli to the core, basic, literary-rhetorical features, structures, and norms of these materials, because, in my view, familiarity with these core and basic norms is an important key to being able to decipher these texts. (The other is familiarity with the rabbinic halakhah and its legal antecedents. But of course gaining familiarity with early halakhah cannot be but via reading these texts, to which [to repeat myself] a key is the literary-rhetorical norms for their articulation of matters.) The opening statement to this section of this essay and most of the points that I shall make in the remainder of this paper very much reflect the impressions I have gained by the challenge of having to explain these rabbinic texts’ core literary-rhetorical traits and structures to my intended readership of this soon-to-be-completed book. It has forced me, as someone who has worked with these texts for decades in my capacity as a social historian of early Judaism and for whom these texts’ traits have become normal and familiar, to look at these texts traits as if I were looking at them for the first time in order to discern anew their literary-rhetorical features, the knowledge of which makes these ancient rabbinic legal materials intelligible. When I began writing this book, I did not expect that it would help me better understand literary-rhetorical choices explicitly or implicitly made within early rabbinic circles that reflect consciously or unconsciously driven changes in what it meant to be a rabbi in Late Antiquity. But such is one of the benefits of making the familiar, unfamiliar in order to make it familiar again. My book (in press) is titled, In the Seat of Moses: An Introductory Guide to Early Rabbinic Legal Rhetoric and Literary Conventions (Eugene, OR: Westar and Cascade/Wipf & Stock Publishers, projected 2020). 20  Obviously, shared amoraic traditions in the Talmuds have a terminus ante quem of sometime just before the composition of the “earlier Talmud,” the Yerushalmi, near the turn of the fifth century. That is not to say that exchange of traditions between rabbinic circles in Babylonia and rabbinic circles in the Land of Israel ceased after the turn of the fifth century. For one, a host of rabbinic texts were composed in the Land of Israel in the fifth and into the sixth centuries which have been preserved because of their transmission to us primarily via Babylonian rabbinic circles.

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Talmuds’ legal compositions and composite essays (sugyot)21 are remarkably similar—this notwithstanding what I think is the most defensible stance on their historical-literary relationship, which is that the authors of the Bavli generally seemed not have looked into the extant Yerushalmi’s compositions and composite essays to create their own.22  For the purposes of this essay, I use stipulated definitions of “composition,” “composite/composite essay,” and “sugya” (an Aramaic term that may be roughly translated as “the lesson”). For the former two, I am influenced by Neusner’s use of the terms. See, for example, Jacob Neusner, The Rules of Composition of the Talmud of Babylonia (Atlanta: Scholars Press, 1991). For my purposes, a “composition” presents a literarily tight treatment of a Mishnah passage, sentence, or phrase and has a definite beginning, middle, and end, and therefore displays unity and coherence. A “composite” or “composite essay” is the stacking of several discrete compositions treating the same Mishnah passage, sentence, or phrase, or other closely related traditions. A composite ends when the Talmud—Yerushalmi or Bavli— has moved on to the treatment of the next Mishnah passage, sentence, or phrase. Thus, there may be a logical ordering of compositions of a composite, but it is a stretch to say that composites display unity and coherence, such as one tends to see in their constituent compositions. I use the term sugya in the following manner: the complete treatment of a Mishnah passage, sentence, or phrase, demarcated at the end by the Talmud moving on to the treatment of the next Mishnah passage, sentence, or phrase. Therefore, a sugya may be just one composition, if the text of the Talmud’s treatment of a Mishnah passage, sentence, or phrase is just one composition in length. Or a sugya may be a composite of a number of compositions stacked together as the treatment of a Mishnah passage, sentence, or phrase. Whether the one or the other, the sugya is the Talmud’s “lesson” on the Mishnah text in question. This accords well with Yaakov Elman’s description of sugyot in the Bavli as (in my words, not his) redactional imaginative (re)inventions (“reconstituted lectures” in Elman’s words) of (alleged) “lessons” using available bits and pieces transmitted from Amoraic times, some of which bits may well have originated in “real” lessons of particular Amoraic masters, whose lessons Elman shows may sometimes be reconstructed from here and there; see Yaakov Elman, “Orality,” 52–99, cf. 85. 22  It is not centrally germane to the argument of this essay to discuss the literary-historical relationship of the Yerushalmi (JT) and Bavli (BT), especially the question of whether the Bavli’s authors tended to have before them the extant Yerushalmi’s compositions or composite essays when composing their own. Nor can this issue be adequately addressed in the confines of a paper such this with its particular foci. There is ample scholarly literature on this topic, and a variety of opinions, and I shall reference in this note some of the more recent scholarship only. Given the generally accepted conclusion that the JT was formulated between, let us say, 150–200 years before the BT, and given that the rabbinic movements of the Land of Israel and Mesopotamia were regularly in contact with one another, it stands to reason that a burning scholarly question will have been whether the JT formed a basis for the authoring of the BT. Their authors certainly shared an overlapping pool of both Tannaitic and amoraic traditions, and both authorships similarly organized their work as Mishnah commentary and analysis. Moreover, as I shall point out later in this essay, the “questions” that both the JT and BT “ask” in their respective enterprises of Mishnah elucidation often resemble one another, as do, in many instances, how these questions are addressed. This cannot be the 21

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What are those basic, shared, literary-rhetorical and structural plans of the Yerushalmi and the Bavli?23 result of some historical accident. That said, it appears to be the case that the vast majority of composites and mini essays of the BT are not developments of their putative “parallels” in the JT, even when these parallels adduce the same Tannaitic traditions (and sometimes the same amoraic sources) in their respective analyses of Mishnah. More often than not BT’s composite mini-essays are not modeled on their parallels in JT, in my experience. That said, there are many contemporary scholarly works on this topic, and the matter is undoubtedly one that remains hotly debated. For an example of this debate one may read, Christine Elizabeth Hayes, Between the Babylonian and Palestinian Talmuds: Accounting for the Halakhic Difference in Selected sugyot from Tractate Avodah Zarah (New York: Oxford University Press, 1997), countered by Jacob Neusner, Are the Talmuds Interchangeable? Christine Hayes’s Blunder (Atlanta: Scholars Press, 1995). (Neusner’s counterargument is to Hayes’s dissertation, of which her book by Oxford University Press is the published version.) See also Alyssa M. Gray, A Talmud in Exile: The Influence of Yerushalmi Avodah Zarah on the Formation of Bavli Avodah Zarah (Providence: Brown University, 2005); Jacob Neusner, The Two Talmuds Compared (Atlanta: Scholars Press, 1996). Amid the scholarly debate on this issue, I find elucidating, well-balanced, and nuanced Yaakov Elman’s view on the role of Palestinian traditions in the work of Babylonian rabbis’ formulation of their Talmud. Elman, “Orality,” 87, states: [T]he existence of large-scale Palestinian structures within the Bavli may point to some written transmission; we have already seen that the evidence for written texts of the Amoraic period is Palestinian in provenance. Nevertheless, there is little doubt, as modern scholarship has maintained for the last century, that the Bavli’s redactors did not have the redacted Yerushalmi before them. Nevertheless, it would seem that some more elaborate Palestinian texts reached them, beyond the relatively short memrot that are explicitly attributed to (usually early) Palestinian Amoraim. Of course, the statement I have just made in the body of the text of this essay betrays my leanings on this question (as do the opening sentences of this footnote), and the exemplary Yerushalmi and Bavli composite essays discussed and analyzed later in this essay unequivocally support my leanings. As we shall see later in this essay regarding these two composite essays discussing one and the same Mishnah passage, the authors of the Bavli composite did not use the “parallel” Yerushalmi composite at all as a model for their own essay. However, let me stress once again that these are issues which are critically important from a literaryhistorical perspective, but they are not my preoccupation here. 23  The Talmuds’ five basic and core structural traits spelled out in the following paragraphs are adapted from my book (in press) titled, In the Seat of Moses. For other (different?) articulations of how the Bavli in particular structures its content, one may consult Jacob Neusner, First Steps in the Talmud: A Guide to the Confused (University Press of America, 2010), or Jacob Neusner, A Readers Guide to the Talmud (Leiden, Netherlands: Brill, 2001). See also Louis Jacobs, Structure and Form in the Babylonian Talmud (Cambridge, UK: Cambridge University Press, 1991); David Weiss Halivni, The Formation of the Babylonian Talmud,

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First, both are organized “mishnaically,” like Tosefta, that is, in accordance with Mishnah’s tractates, chapters, and constituent passages. Each composition and composite essay of the Yerushalmi or Bavli takes a Mishnah passage (or part thereof) as its point of departure, after which it proceeds to another Mishnah passage (or part thereof), usually following the sequence in which these appear in Mishnah—just as Tosefta orders its materials that came to be used to aid Mishnah study. Again, while this seems “natural” to those who have devoted themselves to the study of the Talmud (i.e., the Bavli), there is nothing that made this a historical inevitability. Some Late Antique rabbinic authors, specifically those who produced the Halakhic Midrashim, took to ordering early rabbinic legal traditions “scripturally”; that is, following the order of how legal subjects unfold in Exodus, Leviticus, Numbers, and Deuteronomy. And the Halakhic Midrashim were preserved and transmitted for posterity by those same rabbinic circles that produced and promulgated the Bavli. Yet, the latter chose not to undertake their work along the lines of the former. Second, for both Talmuds, the elements routinely brought together in a legal composition analyzing a Mishnah passage are: . citations of other Mishnah passages; 1 2. citations of Tosefta or Tosefta-like materials (as beraitot, that is, extra-­Mishnaic traditions of deemed Tannaitic origin); 3. citations of halakhic midrashic materials (again, as beraitot); 4. traditions attributed to amoraim that resemble in content Mishnaic, Toseftan or Toseftan-like materials, or (on occasion) halakhic midrashic materials. These four elements are the authoritative data regularly adduced in compositions of both Talmuds. The first three are all said to be translated, introduced, and annotated by Jeffrey L. Rubenstein (Oxford: Oxford University Press, 2013). Halivni’s understanding of the literary form, gemara (the Aramaic cognate term of talmud), also informs his Midrash, Mishnah and Gemara: The Jewish Predilection for Justified Law (Cambridge: Harvard University Press, 1986). See also Abraham Weiss, Mehqarim Be-Talmud (Jerusalem, 1975), cf. the entire chapter entitled “Darkhei Ha-Sugya U-Mataratah;” David Kraemer, “The Beginning of the Preservation of Argumentation in Amoraic Babylonia,” in New Perspectives of Ancient Judaism, vol. 4, The Literature of Early Rabbinic Judaism: Issues in Talmudic Redaction and Interpretation, ed. Alan J. Avery-Peck (Lanham: University Press of America, 1989); Hanokh Albeck, Mavo Le-Talmudim (TelAviv: Dvir, 1987), cf. 557–96. See also note 14.

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“Tannaitic,” that is, said to stem from authorities who are contemporaries of rabbinic masters to which Mishnah’s content is attributed. The traditions of the fourth kind, portrayed as coming from post-Mishnaicera rabbis, are treated as lesser in authority, and yet they are adduced routinely in Talmudic compositions and not all that differently than “Tannaitic” traditions in terms of the flow of Talmudic discourse. Third, these aforementioned four types of source content are adduced within: 5. a layer of materials (sometimes attributed to amoraim, often anonymous) that answer questions and make arguments or counter-­ arguments to arguments, using a highly formalized vocabulary of logical operators, 6. framed by formalized questions, invitations for (further) analysis, and registering impending objections to answers or to analyses already given—also served by stock terminology, which differs in the Yerushalmi and Bavli, the latter’s repertoire being the richer. Fourth, modes of argument in both Talmuds overwhelmingly fall into three broad categories: (i) proffering or defending a position, by citing an authoritative tradition/source; (ii) arguments from analogy—that is, if “there,” in that case, which evinces characteristic x, the law is such-and-such, then “here,” in this case, which evinces characteristic x’, the law should be/should not be such-and-such; (iii) arguments that merge the former two modes. In form, these broad categories of argument in the Talmuds have precursors in Mishnah and especially in Toseftan and Tosefta-like materials (most notably in “debates”). Arguments from analogy also appear in halakhic midrashic passages. In halakhic midrashic passages, characteristics x and x’ are Scripture’s word choices, to the similarities or differences of which intent and compelling significance are attributed. There is a fifth, core, ubiquitous trait of both Talmuds. It is not sufficient to answer questions and provide supporting arguments. The latter must be “pressure tested,” by attempting to disprove them.24 So, ­routinely,  In conversation with me (April 2018) Professor Daniel Boyarin stressed this point, noting that the Yerushalmi and Bavli differently use the “disprove test.” For the former to dis24

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what I have characterized as type-5 and type-6 elements are concatenated in a composition: questions are seen to generate answers and supporting arguments, which engender further questions and objections, supported by counter-arguments, and so on. That is it! At their most basic and core levels—notwithstanding the many technical, literary, literary-historical, and terminological details that may be added to such an account25—an overwhelming proportion of legal compositions in both Talmuds may be structurally and literary-rhetorically broken down into these elements, structured similarly, and this despite well-known, important differences between the two Talmuds, some of which I discuss later. On the basis of these basic, shared traits in evidence in the two Talmuds, and notwithstanding their differences and the nature of their literary (in)dependence,26 the aforementioned five observations would seem to drive one to certain conclusions (revisited later in this chapter at several junctures). Notably, while the redactors/formulators of the Yerushalmi and Bavli are generally and rightly understood to be post-­ amoraic rabbis27 working in Palestinian centers near or soon after the turn prove one opinion, argument or reason is effectively to prove the opposing view; consequently, the Yerushalmi has probatively answered the query it has posed by leaving one answer still standing. The Bavli, when it can, will happily disprove all competing answers, reasons, or arguments, this without necessary regard for leaving any response standing at the end. While I do not articulate matters this way in what follows in this essay, there are aspects of my conclusions that generally dovetail with Boyarin’s characterization of the respective ethoi of the Yerushalmi and Bavli. 25  See, for example, David Weiss Halivni, The Formation of the Babylonian Talmud. 26  See note 22. 27  Of course, “post-amoraic” temporally means different things in terms of the Yerushalmi and Bavli, respectively, as the latest amoraim cited in the Yerushalmi lived in the latter decades of the fourth century, while Ravina II, the latest Babylonian-based amora referenced in the Bavli, is believed to have died around the last decade of the fifth century. This identification of Ravina II as the terminus ante quem for “amoraic teachings” in Babylonian rabbinic circles is argued at many junctures by M.A. Tenenblatt in his Ha-Talmud Ha-Bavli Be-Hithavuto Ha-Historit (Tel-Aviv: Dvir, 1972), in which he also comprehensively reviews antecedent scholarship on the matter. That the extant Talmuds’ compositions are the work of postamoraic, anonymous authors have been widely recognized since, and because of, the work of David Weiss Halivni. Halivni calls these anonymous authors “Stammaim.” While his work is mainly based on the evidence of the Bavli, I am of the opinion that his general thesis about the anonymous, post-amoraic authors of the Talmud applies mutatis mutandi for the Yerushalmi too. See David Weiss Halivni, Mishna, Midrash, Gemara: The Jewish Predilection for Justified Law (Cambridge: Harvard, 1986). I mention this work of Halivni for a second reason; in it Halivni talks of “gemara” as a literary genre. That comes very close to my use of the term in this chapter, and to my characterization of gemara as a normative literary template.

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of the fifth century in the former case, and in the sixth to early seventh centuries in the latter instance,28 there seems already to have existed in amoraic circles by/before29 the turn of the fifth century some established, commonly shared tradition and modus operandi of what it meant to study Mishnah. And it is these that are reflected in our previously identified, five general structural traits shared by the two Talmuds. For the purposes of this essay, we shall deem that shared tradition to be some normative sense of studying Mishnah “Talmudic-ly.” This normative sense informed, is evident in, and is “baked into,” the compositions and composite essays of the Yerushalmi and Bavli, even though these compositions and composites were to some significant degree contrived inventions of their respective post-amoraic authorships. To say more about this and its significance at this juncture is, however, to get ahead of ourselves. When we return to this matter, it will be after we have made some other relevant general observations and examined two substantial, “parallel” passages in the Yerushalmi and Bavli as illustrative of our thesis.

The Literary-Rhetorical “Interrogative Drivers” of Compositions in Yerushalmi and Bavli From the foregoing it is apparent that the literary-rhetorical, structuring element that is the driver of a Talmudic legal composition is a question, challenge, or some comparable invitation to engage in critical analysis of a

28  For the Bavli, this means that what I have characterized as anonymous “type-5 elements” as well as the “type-6 elements” stem from the sixth-century work of what Halivni called the “Stammaim” and from the continuing efforts of the “Saboraim” in the latter part of the sixth century into (possibly) the early seventh. Halivni (in Formation of the Babylonian Talmud and in Midrash, Mishnah and Gemara) favors a Stammaic authorship. Some others (among them myself in Rhetoric of the Babylonian Talmud, 272–81, and Richard Kalmin, The Redaction of the Babylonian Talmud: Amoraic or Saboraic? [Cincinnati: Hebrew Union College Press, 1989]) argue for a completion that extended into the Saboraic period. The matter is discussed in Elman, “Orality,” 53; for his purposes in “Orality,” as for mine in this particular essay, it does not matter whether “Stammaic” or “Stammaic cum Saboraic” authorship of Bavli was the case. 29  How much before, I am not prepared to discuss in this paper. Nor am I prepared in this essay to deal with the evidence that would address the question of whether by or before the end of the fourth century this shared notion of how to deal with Mishnah “talmudic-ly” was normative in both Palestinian and Babylonian rabbinic circles (although I am inclined to the notion that it was).

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particular type.30 In the previous section of this essay, I classified these as “type-6 elements.” Let me say more about them and their generative role in a Talmudic composition. The question, challenge, or invitation may be explicitly articulated, in which case standard formulaic language which is “stock” terminology for each Talmud respectively is used. Or the question, challenge, or invitation for analysis may be implicit in glossing the base Mishnah text with a Tannaitic or amoraic tradition. Instances of the latter are reminiscent of points made in the second study of this trio. There I argued that juxtaposing Tosefta passages with their correlative Mishnah passages, when Tosefta is viewed in situ as having become an aid to Mishnah study, implicitly begs questions about the Mishnah passage for which the Tosefta passage provides the basis for an answer. Let me illustrate this via a “thought experiment.” Imagine a Tosefta passage used in situ as an aid in the study of an imagined Mishnah passage. Our imaginary Mishnah passage states: …, rabbi x permits, and rabbi y forbids, and the correlative, imagined Tosefta passage reads, …, rabbi x permits, and rabbi y forbids, because of z. Viewed in situ, Tosefta cites and glosses Mishnah, adding reason z to y’s ruling. Several questions are now begged. For example, the Tosefta is seen to answer the unstated question, What is the reason that rabbi y forbids in 30  The recognition of the literarily generative function in a Talmudic composition of what I have called type-6 elements is, in my view, what underlies David Weiss Halivni’s views on the role of the “Stamma’im” (post-amoraic, anonymous, rabbinic authorities) in the creation of Bavli’s compositions. See David Weiss Halivni, The Formation of the Babylonian Talmud, as well as his Midrash, Mishnah and Gemara. See also, Richard Kalmin, The Redaction of the Babylonian Talmud: Amoraic or Saboraic?; Richard Kalmin, “The Stam and the Final Generation of the Amoraim: Assessing the Importance of their Relationship in the Redaction of the Talmud,” in New Perspectives of Ancient Judaism, vol. 4, The Literature of Early Rabbinic Judaism: Issues in Talmudic Redaction and Interpretation, ed. Alan J. Avery-Peck (Lanham: University Press of America, 1989). Of course, the scholarship of the role of the Stammaim and/or Saboraim in the formation of the Talmud was much debated in modern scholarly circles before the well-recognized work of Halivni and Kalmin. For example, M. A. Tenenblatt in his Ha-Talmud Ha-Bavli Be-Hithavuto Ha-Historit deals with the matter; on these issues too he reviews and assesses all of the modern scholarship to his day, with special regard for what he considers the too-much ignored work of Julius Kaplan, The Redaction of the Babylonian Talmud (New York: Bloch, 1933).

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our Mishnah passage? But that is not the end. A second obvious question begged is, So what is the reason that rabbi x permits? And two more questions are drawn in the wake of these two. Why would rabbi x not see the validity of rabbi y’s reason? And why would rabbi y not see the validity of rabbi x’s reason? If our imagined Tosefta passage were to have continued with a typical Mishnaic-Toseftan “debate,” He [y] said to him [x] + reason/argument countering x’s ruling, He [x] said to him [y] + reason/argument countering y’s ruling, then the “debate” would not only beg the questions at hand, but also will have supplied partial answers. For anyone familiar with Yerushalmi’s or Bavli’s legal compositions, it is easy to see how our thought experiment would lead one to generate a typical, albeit short, Talmudic composition concerning the Mishnah passage at hand, if one made explicit the queries begged by the juxtaposition of our imagined Mishnaic and Toseftan passages, and cited the latter in support of responses to those queries about the former. One need only add some “pressure testing” of some answers and supporting arguments (by attempting to prove some of the answers to be wrong), and one would have an immediately recognizable exemplar of its literary genre, gemara, if one used the appropriate, stock-formulaic language for Bavli’s or Yerushalmi’s articulation of questions, objections, analyses and arguments, answers, and for citing authoritative sources in the process.31 In other words, there is a line of continuity joining the use of Tosefta and/or Tosefta-like passages viewed as aids to Mishnah study, on the one hand, 31  Let me try an even simpler contrived hypothetical example: For example, let us imagine the following: Mishnah presents a dispute by having an anonymous ruling glossed by an opposing ruling that is attributed to a named rabbi y, and the correlative Tosefta passage contains the same opposing rulings attributed to named rabbis x and y. Tosefta’s juxtaposition with Mishnah begs the question: Who is the anonymous authority in the Mishnah? The answer given by the Tosefta to such an implicit or begged question is, rabbi x. Now let us consider use of type-6 elements in the earlier of the two Talmuds; the Yerushalmi’s compositions have begun a process of explicitly exploring issues that, as argued in my second paper, the mere juxtaposition of Mishnah passages and its related Tosefta passage(s) beg implicitly to be explored. Let us consider a hypothetical example. A Yerushalmi composition concerning the type of Mishnah dispute alluded to earlier might commence with something like: Who taught [this anonymous Mishnah ruling]? The answer, “rabbi x,” followed by the citation of “our” posited Tosefta passage in which rabbis x and y are the disputants. This might constitute a very short Yerushalmi composition.

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and, on the other, the structuring of Talmudic compositions in the Yerushalmi or Bavli, where formalized questions about and invitations for analysis of Mishnah engender arguments in support of which other Tannaitic and amoraic traditions are adduced. Let us extend our thought experiment, albeit in a manner which, while illuminating, is a bit more questionable methodologically.32 If we place ourselves in the context of reading Mishnah as is33 and asking questions about its content, would questions like the following not come to mind as a result of extended and intensive engagement with the text? • What does the passage actually mean? • What precise circumstances does the law assume to be present? • Why should the rule be what it is said to be? • Why should the rule be different in some seemingly comparable case, if indeed it is? • What or who is the authoritative source for the ruling that bears no attribution? • In the case of disputes, why do the two “disputants” disagree about what the appropriate ruling ought to be for ostensibly the same posited circumstances? • Is there a basis for deciding which disputant’s position is correct? • Can one posit additional circumstances that would render both positions correct? • In the case of debates, do the arguments of two “debaters” make equally good sense? • Why might one of the parties to the “debate” not concede to the reasoning of the other party? • Are the posited circumstances that comprise the case ruled upon clearly or fully articulated? • Why do we need a ruling about these circumstances at all? 32  The methodological “yellow flag” has to do with the following two issues. First, what one may “imagine,” however helpful in the scholarly process, proves nothing. Second, since those of us who study the Yerushalmi and Bavli are well versed in the types of questions it asks of Mishnah, our imaginings are certainly informed by this familiarity. We are in danger of “imagining” what we already know to be the case. Still, I suggest this exercise as a useful technique to prepare the reader who may not yet be intimately familiar with these texts, which are complex, to perceive what they do at their core. In other words, it is a pedagogical exercise in preparation for an academic analysis. 33  As to a certain degree we do in the first essay of this trio.

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• Are there different, but related circumstances for which a ruling is needed, but not provided? • How would each of the disputing parties rule in the case defined by these different, but related circumstances? Not only questions just like these but, indeed, these very questions (and additional ones) are driving forces of gemara compositions encountered in Yerushalmi and Bavli. Of course, in the Talmuds, the questions are not posed in fully formed, discursive prose as I have done. Rather they are couched in each Talmud’s highly laconic, stock, formulaic terminologies. The responses, and the analyses and arguments they are portrayed as engendering, are seeded with citations of Mishnah, Tosefta, Tosefta-like materials, halakhic midrashic texts, and amoraic traditions. The amoraic sources are legal lemmas (said x + ruling), or amoraic precedent stories (x did such and such in this circumstance), or a combination of both (said x: y did such and such in this circumstance). As noted, the other, related structural driver of Talmudic compositions is the penchant to “pressure test” responses, by trying to disprove them. These challenges too are launched or “signaled” by laconic, stock terminology characteristic of each Talmud. How laconic? Often, as short-hand as this: What!? That is, a simple expression of disbelief, followed by a counter-reason or counter-argument. This may lead to reposing the generative question (e.g., What!? + counter-argument + [So, now] what is the reason?), or simply to the positing of an alternative answer, and the process may repeat itself. The final kind of structuring, formulaic terminology in Talmudic compositions “signposts” the adducing of an authoritative tradition, for example (using Bavli’s formularies), as we have taught [in another Mishnah passage], or as it has been taught [in an extra-Mishnaic Tannaitic tradition], or

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[lo,] said rabbi x: rabbi y said [plus an authoritative amoraic legal tradition], either for the purposes of being analyzed or in order to be considered as the basis for an alternative response to an invited analysis.34 These literary-rhetorical drivers (and other stock language of their ilk35) provide the structural latticework of Bavli and Yerushalmi legal compositions. Without them, couched in their admittedly highly laconic short-­ hand, the arguments and analyses, and the sources adduced in the process, would hang on nothing from a literary-rhetorical perspective.

Take, for Example, These Two “Parallel” Composite Essays from the Yerushalmi and Bavli This section aims both to illustrate and to lend some further credence to claims made in the antecedent sections. It does so by taking a brief look (all that one can do in this context) at two, co-relative Talmudic composites—one from the Yerushalmi (y. Avodah Zarah 1:6) and one from the Bavli (b. Avodah Zarah 14b-16a)—that treat one and the same Mishnah passage (m. Avodah Zarah 1:6). I present and compare these two composites, not because they are special in any way—indeed, the value of the comparison hinges on them being quite ordinary—but because I have had

34  As M.A. Tenenblatt, in his Ha-Talmud Ha-Bavli Be-Hithavuto Ha-Historit, cf. appendices, makes clear, the stock citation-formularies for introducing Mishnaic and extra-Mishnaic, Tannaitic citations (beraitot) in the Bavli do not always follow the rule. Moreover, sometimes a tradition that appears at one juncture as a baraita appears elsewhere as an amoraic teaching. Let us leave aside, for the moment, the question (dealt with by Tenenblatt) whether these are (1) copiests’ errors or (2) reflections of use of terminology in original compositions that later redactors failed to assimilate to their wholesale harmonization of terminological usage in the Bavli. What is interesting to me is the use in Bavli compositions of the traditions cited—Mishnaic, extra-Mishnaic-Tannaitic, and amoraic teachings alike to the point that citation formularies confuse their provenance—as authoritative materials juxtaposed with one another and with the base Mishnah passage under analysis. Of course, eventually over time the use of stock terminological formularies in the Bavli was more or less completely harmonized and standardized, to the degree that medieval and early modern rabbinic scholars would produce lexicons of them. 35  The vocabulary of stock formulaic language in the Bavli is so rich, stylized, and consistent that it is readily amenable to lexigraphic works (medieval and modern) intended to aid the novice yeshiva/Talmud student. An example of such a lexicon of Bavli terminology produced in the modern era is Joseph Schechter’s Otzar Ha-Talmud, second edition (TelAviv: Dvir: 1964–65, repr. 1972–73). Of course, “The Talmud” in the title of Schechter’s volume is the Bavli; no specification was required, in his mind.

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occasion to analyze them in depth before.36 Just not in the manner and for the purposes that I do so here. That they both are gemara to the same Mishnah passage is, of course, important, because their similarities and differences become more meaningful, as options taken and not taken by the respective authors of their constituent compositions and of the composites as a whole. For those seized by the literary-historical relationship of Bavli and Yerushalmi passages, seeing each in light of the other is crucial. But that is not our purpose here. For us, each is a place to “stand” in order to “view” the other “in perspective.” That is the point of comparison in the human sciences. Following are my own translations in full of m. AZ 1:6, y. AZ 1:6, and b. AZ 14b-16a, in that order. As you will see, I have formatted the Yerushalmi and Bavli passages in my own idiomatic way, in order to highlight some of the six types of elements (language that poses questions and invites analysis) that earlier in this chapter I characterized as a structural taxonomy of the building blocks of legal compositions in both the Bavli and the Yerushalmi. My formatting also facilitates focusing specifically on those stock, rhetorical formularies that serve type-5 elements (that formulate arguments, reasons, and counter-arguments, adducing source-­ evidence along the way). Both these elements (type-5 and type-6) stand out as the structural and sub-structural latticework of a Talmudic composition in both Talmuds. Everything else in these compositions is “attached” to them in some manner. Now, how have I highlighted these? Structural formulaic language that poses questions, invites analysis, signals challenges and objections, and denotes that an authoritative source is forthcoming is in ALL CAPS. Formulaic language that provides the sub-structure for articulating reasons, for making arguments, and for undertaking analyses is in UNDERSCORED ALL CAPS. The remainder of the language in a composition is either (a) a citation of an authoritative source (i.e., elements of types 1–4), or (b) is the idiomatic language of the particular question about, answer or challenge to, and argument concerning the subject at hand. I have cast verbatim citations of Mishnah in boldface; language that parallels Tosefta is underscored, but not in all caps. Aramaic is in italics.

36  In Jack N. Lightstone, The Rhetoric of the Babylonian Talmud: Its Social Meaning and Context, 27–74. And they are presented and parsed in detail in chapters 7 and 8 of Jack N. Lightstone, In the Seat of Moses.

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I have also segmented y. AZ 1:6 and b. AZ 14b-16a into what I consider to be their constituent compositions, each numbered by a Roman numeral (I, II, III, etc.). Within compositions, individual literary sub-­ units are numbered using Arabic numerals (1, 2, 3, etc.). Some might have segmented these texts differently than I have. I believe that mine suffices for the tasks at hand. In any case, a different division of the composite into its constituent compositions will not significantly change the results of this chapter or impact the discussion that follows in the remainder of this section or the next. Here, then, are m. AZ 1:6, y. AZ 1:6, and b. AZ 14b-16a. Mishnah Avodah Zarah 1:637 A. [In] a locale [in] which they are accustomed to sell small cattle [e.g., sheep or goats] to idolaters, B. they [are permitted to] sell. C. [In] a locale [in] which they are not accustomed to sell [small cattle] to them, D. they do not [permit one to] sell. E.1. And in any locale, they do not [permit one to] sell to them E.2. large cattle [e.g., oxen, asses, and horses], E.3. calves, E.4. and foals [of asses or of horses] – F. whether whole, or maimed. G. R. Judah permits in the case of a maimed [animal], H. and Ben-Batayra permits in the case of a horse. Yerushalmi Avodah Zarah 1:638 I . WHAT!? And is one permitted to rear [small cattle]!? 1 2. SAID R. Ba: As is the case of the Mahir, which is sixteen [Roman] miles by 16 [Roman] miles, [in which district one may rear small cattle]. 37  The translation that follows is my own and adapts that done for my previous work in Jack N. Lightstone, The Rhetoric of the Babylonian Talmud, 27. 38  The translation that follows is my own and adapts that done for my previous work in Jack N. Lightstone, The Rhetoric of the Babylonian Talmud, 49–57.

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II  1. THEY SHOULD HAVE SAID (havvan b‘eyy maymar):  2. THE ONE WHO SAID (ma’n demar) it is permitted to sell [also maintains] it is permitted to billet (my emendation) [cattle owed by an Israelite with an idolater].  3. AND THE ONE WHO SAID (ma’n demar) it is forbidden to sell [also maintains] it is forbidden to billet.   4. [Said] R. Jonah: [Said] R. Leazar in the name of Rav: And EVEN THE ONE WHO SAID (ma’n demar) in the case of the one who said it is permitted to sell, it would be [nevertheless] forbidden to billet.  5. and what distinguishes [endeavoring] to sell from [endeavoring] to billet?  6. From the moment one sells it to him it is the cattle of the idolater.   7. From the moment he billets it with him, it is [still] the cattle of the Israelite,   8. and he [the idolater] is suspect with respect to it[s treatment]. III  1. [In] a locale [in] which they are not accustomed to sell [small cattle] to them, they do not [permit one to] sell.  2. WHY?  3. BECAUSE one removes it from the purview [of the laws pertaining to] shearing.  4. [Then] CONSIDER that it was a goat [and not shorn]. [So now why?]   5. BECAUSE one removes it from the purview of the laws of the firstling.  6. [Then] CONSIDER that it was a male [which will, obviously never give birth to firstling]. [So now why?]  7. BECAUSE one removes it from the purview of the priestly gifts.  8. HENCEFORTH [if this were the reason] one should not sell him wheat,  9. BECAUSE one removes it from [liability for] the dough offering.

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10. [And similarly] one should not sell him wine and oil, 11. BECAUSE one removes them from [liability for] the blessing [said before partaking of them]. IV  1. [In] any locale they do not [permit one to] sell to them large cattle.   2. WHY [the distinction between large and small cattle]?  3. [BECAUSE in the case of] a large cattle, there is with respect to it [the matter of] liability for a sin offering [as when one uses them to do labor on the Sabbath, for example, by hitching it to a plow or a wagon].  4. BUT [in the case of] a small cattle, there is not with respect to it [the matter of] liability for a sin offering [since one does not do such labor with small cattle].  5. BUT will [the idolater] not milk and will he not shear [small cattle on the Sabbath, acts also incurring a sin offering]?   6. [So now WHY?]  7. ONE [can] SAY:  8. THERE (taman) [in the former case], it [the animal, by its own labor] is liable [that is, makes the owner liable].  9. VERILY, HERE (baram hakha) he [the owner, by reason of an act which is his only] is liable. 10. SINCE [i.e., from the moment] he has sold it to him, is it not considered the non-Jew’s animal [i.e., no longer subject to the laws of the Sabbath]? 11. SAID R. Ami the Babylonian in the name of Ravnin THAT THERE (de-taman) [in the former case, with respect to large cattle], sometimes one sells it on trial, and he [the idolater] returns it after three days, and it happens that [on the Sabbath] he [the idolater] works an animal which is an Israelite’s. 12. HENCEFORTH [if this were the reason], [selling] on trial [should be] forbidden, [BUT] when not on trial, [selling should be] permitted. 13. THIS[, the latter, was forbidden] ON ACCOUNT OF [fear that the idolater might work the animal on the Sabbath in] THAT[, the former, case, that is to say, one usually leads to the other].

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V  1. [If] one transgressed and sold [cattle to an idolater], they fine one.  2. JUST AS they fine one for [cases in which] the law [forbids such a sale], SO [TOO] they fine one for [cases in which] custom [forbids such a sale].   3. AND WHENCE [do we learn] that they fine one for [cases in which] custom [forbids such a sale]?  4. A certain person sold his camel to an Aramean [alternative reading: Roman].  5. The case came before Resh Lakish [aka Rabbi Simeon b. Lakish],  6. And he fined him double [the value of the animal],  7. so that [the Israelite] will [feel compelled to arrange that the idolater] return the camel to him.  8. SAID R. Yose b. R. Bun:  9. [He must have fined] the agent, [not the Israelite owner], 10. and they accused him, this man [of being] the [Israelite] agent of the Aramean [alternative reading: Roman]. 11. [Let us hypothesize that] R.  Simeon b. Lakish ACCORDS WITH (ke-) [i.e., is based upon the view of]R. Judah, 12. AS IT IS TAUGHT (de-tny) (in a beraita paralleled at t. Bek. 2:1) in the name of R. Judah: 13. He who buys an animal from a non-Jew and it gave birth [and the offspring was] a firstling ─ 14. they estimate with him its [the firstling’s] worth, and they give half the value to the priest. 15. [If the Israelite] gave it to him in trust, 16. one estimates with him what its value is worth, and he gives [an amount equal to] all of the value to the priest. 17. And sages say: Since the hand of the non-Jew intervenes, [then the animal] has ceased [to be subject to] the law of the firstling (cf. m. Bek. 1:1). 18. [No, that hypothesis is not substantiated, because] [Of] GREATER [legal weight] THAN [the law according to] R. Simeon b. Lakish IS [the law according to] R. Judah. 19. THAT WHICH SAID R. Judah[was said] ON ACCOUNT OF the laws of the firstling.

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20. THAT WHICH SAID R. Simeon b. Lakish [was said] FOR the laws of [the sale of] large cattle[, so the view attributed to R. Judah in the “Tannaitic”/baraita source cannot be considered the authoritative basis for the view of Simeon b. Lakish]. VI  1. R. Judah permits in the case of a maimed [animal].   2. R. Judah stated [his view] only in the case of a maimed [animal] which cannot be healed (parallels t. Avodah Zarah 2:1).  3. They said to him: and is it not [the case] that (parallels t. Avodah Zarah 2:1) he [the non-Jew] brings over to her [, the maimed animal,] a male, and he mounts her and she gives birth (parallels t. Avodah Zarah 2:1)?   4. He said to them: Moreover, I stated [my view] only in the case of a male horse which cannot be healed.   5. They said to him: And is it not [the case] that [the non-Jew] brings to him a female, and she is mounted by him, and she gives birth?  6. [SAID] R. Abin in the name of Ravanin THAT THERE (detaman) IT IS STATED THAT it is forbidden to sell to them [unborn] foeti.  7. THERE WE HAVE LEARNED (taman tnynan) [in m. Bek. 1:1]:  8. He who buys the fetus of an ass of a gentile [, and the fetus, if male, will be the firstborn offspring of the ass],  9. and he who sells to him [the fetus of an ass], 10. even though it is not permitted, 11. and he who forms a partnership with him [the gentile], 12. and he who receives from him [, the gentile, such a fetus in trust], 13. and he who gives [such a fetus] to him [the gentile] in trust— 14. [the fetus] is exempt from the law of the firstling. 15. R. Haggai INQUIRED BEFORE (ba‘a qomay) R. Yose: 16. DOES THIS NOT STATE (layt hada amara) that it is forbidden to sell them [unborn] foeti? 17. He said to him: R. Abin [speaking] in the name of Ravnin (alternative read: rabbanin, “our rabbis”) has already anticipated you: 18. THAT THERE (de-taman) IT IS STATED THAT it is forbidden to sell to them [unborn] foeti.

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VII  1. Ben Betayra permits in the case of a horse.   2. Ben Betayra STATED [his view] ONLY in the case of a male horse, WHICH kills its owner in battle.  3. AND THERE ARE THOSE WHO SAY: WHICH pursues females.  4. AND THERE ARE THOSE WHO SAY: WHICH stands and urinates.  5. WHAT [case(s) account for] THE DIFFERENCES BETWEEN THEM (ma baynaiyhon)?   6. A gelding.  7. [With respect to] THE ONE WHO SAYS (man damar): WHICH pursues females,[a gelding] does not pursue [females].  8. BUT [with respect to] THE ONE WHO SAYS (man damar): it stands and urinates, EVEN SO this one [i.e., the gelding] stands and urinates.   9. R. Tanhum b. Hiyya [said]: When they [i.e., horses] do harm [to people] they [idolaters] hitch it to millstones [and make the horse work on the Sabbath]. 10. [Said] R. Yose b. R. Bun in the name of R. Huna: Ben Betayra and R. Nathan have both said [essentially] the same thing. 11. AS IT HAS TAUGHT (de-tny) [in a baraita paralleled at t. Shabbat 8(9):34]: 12. [If on the Sabbath] one removed [from a private to a public domain] cattle, wild beasts, or birds—whether alive or dead— one is liable [on account of transgressing the Sabbath]. 13. R. Nathan says:[In the case of] dead [ones], one is liable;[in the case of] live [ones], one is exempt. 14. AND [WHAT IS THE VIEW OF] our rabbis? 15. THEY ARE [OF THE VIEW THAT] WITH RESPECT TO THEM (iyt lehon), one is liable for a sin-offering [in the latter case]. 16. AND/BUT HOW [WOULD] THEY [i.e., then anonymous authorities in the Mishnah] HAVE RESPONDED TO HIM [Ben Betayra] (ve-iynun metivin layh akhan)? 17. IN ACCORDANCE WITH HIS APPROACH THEY RESPONDED TO HIM ─ 18. IN ACCORDANCE WITH YOUR APPROACH, WHEN YOU [Ben Betayra] SAY:

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because of the law of the Sabbath rest [which is not at issue in the sale of a horse to idolaters, since riding a horse on the Sabbath is not prohibited by biblical law], 19. THEN I [WOULD] BE [OF THE VIEW THAT] (af ana iyt ly) when they [horses] do harm they hitch it to millstones [and the horse is made to do work on the Sabbath in a fashion which is prohibited by biblical law]. 20. Rabbi [Judah the Patriarch] says: Say I that it is forbidden on account of two things – 21. on account of [the laws pertaining to the sale of] the accoutrements of weaponry [to idolaters], 22. and on account of [the laws pertaining to the sale of] large cattle [to idolaters] (baraita parallel to t. Avodah Zarah 2:1). VIII  1. AND IT [HAS BEEN] TAUGHT (u-tny):   2. so [too] is a large wild beast like small cattle [with respect to the matter of selling to idolaters] (in a baraita, only the underscored terms are paralleled at t. Avodah Zarah 2:1).  3. WHO TAUGHT IT (man tenytah)?   4. Rabbi [Judah the Patriarch].   5. [However] the words [i.e., view] of the sages [is][as] R. Bisna [said:]R. Hannan b. Ba [said] in the name of Rav:  6. A large wild beast is like large cattle (again see parallel terms at t. Avodah Zarah 2:1) [with respect to the matter of selling to an idolater]. b. Avodah Zarah 14b-16a39 I  1. IS THAT TO SAY THAT THERE IS NO prohibition, [AND] THERE IS [i.e., it is a matter of] custom [only]?  2. [No] WHERE it is the custom [to have] a prohibition, it is [so] accustomed; WHERE it is the custom [to have] a dispensation, it is [so] accustomed.

 The translation that follows is my own and adapts that done for my previous work in Jack N. Lightstone, The Rhetoric of the Babylonian Talmud, 28–44. 39

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 3. AND THEY REBUFFED IT [by citing the following from m. AZ 2:1]:  4. One does not stable a cattle at the inns of idolaters, because they are suspect with respect to bestiality.  5. SAID Rav: In a locale where they permitted to sell, they permitted to billet; [in] a locale where they forbade to billet, they forbade to sell.   6. But R. Eliezer SAYS: EVEN in a locale where they forbade to billet, it is permitted to sell.  7. WHAT IS THE REASON?  8. An idolater worries that his [own] animal will become infertile.  9. BUT EVEN SO [MUST] Rav [HAVE] REVERSED [HIS VIEW]. 10. FOR Rav SAID THE OPPOSITE [AS WELL]. 11. SAID R. Shila b. Abimi IN THE NAME OF Rav: An idolater worries that his [own] animal will become infertile. II  1. And in any locale they do [not permit one to] sell to them large cattle, etc.  2. WHAT IS THE REASON?  3. LET IT BE [ASSUMED] THAT we do not fear bestiality (m. AZ 2:1) [will take place];  4. [RATHER, NOW] we fear that [the idolater] does work with it [on the Sabbath].  5. BUT LET it [the animal] be worked [on the Sabbath]!  6. SINCE [IT IS THE CASE] THAT [the Israelite] sold it, [THEN] [the idolater] has acquired it[, and the animal is no longer subject to the laws of the Sabbath].  7. [RATHER], [they instituted] a decree [against the sale of large cattle] ON ACCOUNT OF [cases of idolaters] borrowing [the animal and working it on the Sabbath], AND ON ACCOUNT OF [cases of idolaters] leasing [the animal and working it on the Sabbath, in which two cases the animal is still owned by the Israelite.]   8. [BUT] [also in the case of] borrowing he acquires [possession of] it, [and so too in the case of] leasing he acquires [possession of] it.

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 9. RATHER SAID Rami b. R. Yiva: ON ACCOUNT OF [cases of selling animals on a] trial [basis]; SINCE at times when one sells it oneself close to the setting of the sun on the onset of the Sabbath, AND he himself said to him come try it, AND he listens to him, AND he goes on account of him. 10. BUT IT IS ALRIGHT THAT he goes, [is it not?] 11. BUT he is driving his animal on the Sabbath. 12. AND he who drives his animal on the Sabbath is liable for a sin-­offering [if the act was done in error] (see b. Shabbat 153b). 13. R. Shisha b. R. Idi CHALLENGED IT: 14. BUT [in the case of] leasing, WHO [HOLDS THAT] he acquired possession of it [in the first place]!? 15. AND SO WE HAVE TAUGHT [in m. AZ 1:9]: Even in the locale where they say [that it is permitted] to lease [a house to an idolater], they did not say [thus if the house will be used] as a dwelling, because [the idolater] will bring into it an idol [and the Israelite will thereby be participating indirectly in idolatry]. 16. AND IF IT SHOULD OCCUR TO YOU [THAT in] leasing, [the lessee] acquired [possession], [THEN IN] THIS [CASE JUST CITED] whatever he wishes to bring into his house, let him bring in. 17. Idolatry DIFFERS IN THAT it is [a more] severe [case]. 18. AS IT IS WRITTEN [in Deut. 7 and cited in m. AZ 1:9], “You shall not bring an abomination [i.e., an idol] into your house.” 19. R. Isaac b. R. Mesharsheya CHALLENGED IT: 20. BUT [in the case of] leasing, WHO [HOLDS THAT] he acquired possession of it [in the first place]!? 21. AND SO WE HAVE TAUGHT [in m. Ter. 11:9]: An Israelite who leased a cow from a priest may feed it beans that are heave offering; but a priest who leased a cow from an Israelite—even though its feeding is his obligation, he may not feed her beans that are heave offering [i.e., the cow’s status as regards being able to be fed sanctified produce does not change as a result of being leased]. 22. AND IF IT SHOULD OCCUR TO YOU [that in] leasing, [the lessee] acquired [possession], [THEN] WHY [IN CASE JUST CITED] should he not feed her [heave offering], [since] the cow [presumably] is his!?

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23. RATHER LEARN FROM THIS [i.e., from the immediately preceding] [that in] leasing, [the lessee] has not acquired [possession]. 24. AND NOW THAT YOU HAVE SAID [that in] leasing, [the lessee] has not acquired [possession], 25. [WE CONCLUDE THAT] 25.1. [they instituted] a decree [against the sale of large cattle] on account of [cases of idolaters] leasing [the animal and working it on the Sabbath], 25.2. [and they instituted] a decree [against the sale of large cattle] on account of [cases of idolaters] borrowing [the animal and working it on the Sabbath], 25.3. [and they instituted] a decree [against the sale of large cattle] on account of [cases of idolaters buying an animal on a] trial [basis and, with the complicity of the Israelite, working it on the Sabbath]. III  1. Rav Ada permitted the sale of an ass by the agency of a broker.  2. [WHY COULD HE HAVE PERMITTED IT IN THIS CASE?] IF [as we have deduced above, they instituted a decree against the sale of large cattle] ON ACCOUNT OF [cases of idolaters buying an animal on a] trial [basis and, with the complicity of the Israelite, working it on the Sabbath], [THEN] THIS ONE [i.e., the Israelite owner who uses the services of a broker] does not [even] know [the buyer, such that he can] listen to him and go on account of him [and be complicit in driving the animal on the Sabbath].  3. AND IF [as we also have deduced above, they instituted a decree against the sale of large cattle] ON ACCOUNT OF [cases of idolaters] borrowing and leasing [an animal and working the Israelite’s animal on the Sabbath], SINCE [the animal] is not his [i.e., the broker’s, to lend or lease], [THEN] he does not lend or lease [the animal].   4. AND FURTHERMORE [we may conclude in this last case that the broker will neither lend nor lease the animal] ON ACCOUNT OF [the fact] that he does not [wish to] reveal [to the prospective buyer] any blemish in it.

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IV  1. Rav Huna sold a certain cow to an idolater.  2. SAID TO HIM Rav Hisda: WHAT IS THE REASON the master did thus [in apparent violation of m. Avodah Zarah 1:6]?  3. HE [Huna] SAID TO HIM: SAY [THAT] [the idolater] bought it for slaughter.  4. AND WHENCE WILL YOU SAY THAT WE HAVE [SO] SAID [I.E, TAUGHT] AS IN THIS MANNER [I.E., IN SUCH A CASE]?  5. AS WE HAVE TAUGHT [in m. Shevi’it 5:8]: 5.1. The House of Shamai say: one may not sell to him [a non-Jew] a threshing cow on the sabbatical year; 5.2. but the House of Hillel permit [such a sale], because he [the non-Jew] might [intend to] slaughter it.  6. SAID Rabbah:  7. WHAT IS SIMILAR [about the cases]!?  8. THERE [in the case just cited] a person is not commanded with respect to causing his animal to rest on the Sabbatical Year; HERE [in the case of Huna’s sale of his animal] a person is commanded with respect to causing his animal to rest on the Sabbath.  9. SAID TO HIM Abbaye: AND [IS IT THE CASE THAT] EVERYWHERE THAT a person is commanded [with respect to it] it is forbidden? 10. BUT, LO, [CONSIDER] [the case of] a field—FOR WHICH apersoniscommandedwithrespecttoitsrestontheSabbaticalYear— 11. BUT WE HAVE TAUGHT (marginal note Vilna ed. emends: AS IT HAS BEEN TAUGHT) [see t. Shev. 4:5]: 11.1.  The House of Shamai say: A person may not sell a plowed field [to a non-Jew] during the Sabbatical Year (t. missing: plowed). 11.2.  But The House of Hillel permit [such a sale], because he may leave it fallow (t. missing: because ... fallow). 12. R. Ashi CHALLENGED IT: 13. AND [IS IT THE CASE THAT] EVERYWHERE THAT a person is not commanded [with respect to it], it is permitted? 14. BUT, LO, [CONSIDER] [agricultural] tools— FOR WHICH a person is not commanded with respect to causing [agricultural] tools to rest on the Sabbatical Year.

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15. BUT WE HAVE TAUGHT [in m. Shev. 5:6]: These are the tools which a person (some m. texts read: an artisan) is not permitted to sell to them [i.e., to non-Jews] on the sabbatical year: a plow and its accoutrements; a harness; a seeder; and a hoe. 16. RATHER SAID R. Ashi: WHENEVER IT IS POSSIBLE to posit (lit.: hang it on) [some extenuating circumstance], we [so] posit, AND [THIS] EVEN THOUGH one is commanded [explicitly with respect to the matter]; AND WHENEVER IT IS NOT POSSIBLE to [so] posit, we do not [so] posit, EVEN THOUGH one is not commanded [explicitly with respect to the matter]. V  1. Rabbah sold a certain ass to an Israelite suspected of selling [large cattle] to idolaters.  2. SAID TO HIM Abbaye: WHAT IS THE REASON the master did thus [in apparent violation of m. Avodah Zarah 1:6]?  3. HE [Rabbah] SAID TO HIM: I sold it to an Israelite.  4. HE [Abbaye] SAID TO HIM: BUT, LO, [CONSIDER THAT]40 He goes and sells it to an idolater!  5. [Rabbah responded: Does it make sense that] to an idolater they sell [when one can posit extenuating circumstances], [BUT] to an Israelite they do not sell [lest he in turn sell it to an idolater]!?  6. HE [Abbaye] RESPONDED TO HIM [by, seemingly, citing a Tannaitic source that substitutes “Sammaritans” for m. AZ 1:6’s “idolaters”]: 6.1. In a locale in which they are accustomed to sell small cattle to Samaritans, they [are permitted to] sell; 6.2. [where they are accustomed] not to sell, they do not sell.  7. WHAT IS THE REASON? 40  This line is missing in the digitized text of the standard Vilna edition found on www. mechon-mamre.org, but appears in the digitized text of the Vilna edition on the CDs of Otzar Ha-Torah Ha-Memuhshevet (Bnai Brak, Israel).

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 8. IF ONE SAYS IT IS ON ACCOUNT OF their being suspect with respect to bestiality, [THEN IN THE VIEW OF]WHOM are they suspect?  9. AND (i.e., for), LO, IT IS TAUGHT [in a Tannaitic source that parallels t. AZ 3:2 and 3:1]: they do not billet cattle at the stables of idolaters (m. AZ 2:1)— 9.2. [neither] male [cattle] with male [idolaters], 9.3. and [not] female [cattle] with female [idolaters], 9.4. and one need not mention [the obvious cases of] 9.5. female [cattle] with male [idolaters], 9.6. and male [cattle] with female [idolaters]. 9.7. And they do not entrust cattle to their shepherds. 9.8. And they do not leave themselves alone with them, 9.9. And they do not entrust a minor child with them so that he will instruct him in the study of books, 9.10. and to instruct him crafts. 9 .11. But they do billet cattle at the stables of Samaritans (m.AZ 2:1)— 9.12. [whether] male [cattle] with female [Samaritans], 9.13. and female [cattle] with male [Samaritans], 9.14. and one need not mention [the obvious cases of] 9.15. male [cattle] with male [Samaritans], 9.16. and female [cattle] with female [Samaritans]. 9.17. And they do entrust cattle to their shepherds. 9.18. And they do leave themselves alone with them 9.19. And they do entrust a minor child with them so that he will instruct him in the study of books, 9.20. and to instruct him [in] crafts. 10. THEREFORE [it would appear that], they [Samaritans] are not suspect. 11. BUT, MOREOVER, IT IS [ALSO] TAUGHT [in another Tannaitic source, that has parallels at t. AZ 2:4]: 9.1.

11.1. 11.2. 11.3. 11.4. 11.5.

They sell to them neither weapons, nor the accoutrements of weapons, And they sell to them neither a block [for placing on prisoners’ feet],

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11.6. 11.7. 11.8. 11.9.

nor collars [for placing on prisoners’ necks], nor leg-irons, nor iron chains— the same [holds for] an idolater, as [for] a Samaritan.

12. WHAT IS THE REASON? 13. IF WE SAY THAT they are suspect with respect to shedding of [innocent] blood, [THEN IN THE VIEW OF] WHOM are they suspect? 14. LO, YOU HAVE [ALREADY] SAID [as cited above in a Tannaitic source that has a parallel at t. AZ 3:1]: And they do leave themselves alone with them [i.e., Samaritans]. 15. RATHER [one does not sell them weapons, etc.] ON ACCOUNT OF [THE FACT] THAT [the Samaritan] will go and sell it to an idolater. 16. AND IF YOU SAY: [Is there not a distinction to be made between an Israelite and a Samaritan because] a Samaritan does not do repentance but an Israelite does do repentance? 17. BUT, LO, SAID R. Nahman: SAID: Rabbah b. Avuha: JUST AS they said it is forbidden to sell to an idolater, SO TOO it is forbidden to sell to an Israelite suspected of selling to an idolater. 18. He [Rabbah, upon learning of the just-cited tradition,] hurried after him [the Israelite to whom he had sold the ass] for a distance of three Persian miles [in order to buy back the animal]— 19. AND THERE ARE THOSE WHO SAY [THAT IT WAS]one Persian mile in the badlands— 20. and he did not meet him. VI  1. SAID R. Dimi b. Abba: JUST AS it is forbidden to sell [arms] to an idolater, [SO TOO] it is forbidden to sell [arms] to bandits.  2. HOW ARE [THE TWO CASES] COMPARABLE [i.e., So, why do we need both articulated]?  3. IF he [the bandit] is suspected of killing, [THEN]IT IS SELF-­ EVIDENT THAT THESE ARE [i.e., we are dealing with] idolaters [and the second part of the above-cited tradition is not required].

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 4. AND IF [IT IS THE CASE] THAT he does not kill [and he is an Israelite], WHY [should one] not sell arms to him [in which case the second part of the above-cited tradition is again not required]?  5. [INDEED, WE MUST] ALWAYS [i.e., NORMALLY, ASSUME IN THIS CASE] THAT he does not kill [and he is an Israelite],  6. AND HERE [IN THIS CASE] WITH WHAT ARE WE DEALING?  7. [IT IS] THE CASE OF a hold-up, [during which] sometimes he acts to save himself [and may kill or injure his pursuers]. VII  1. OUR RABBIS TAUGHT [this in a Tannaitic source, without parallel in either m. or t.]: .1. 1 1.2.

They do not sell them [i.e., idolaters] shields; and there are those who say: They sell them shields.

 2. WHAT IS THE REASON [that they forbid such a sale according to the former opinion]?  3. IF [YOU WERE] TO SAY [THAT IT IS] ON ACCOUNT OF [THE FACT] THAT they defend themselves,  4. [THEN] IF SO, EVEN wheat and barley ALSO [should] not [be sold to idolaters, since they use them as well to sustain themselves; but one may sell wheat and barley idolaters. So why not shields?].  5. SAID Rav (Rosh reads or emends to: R. Pappa): IT IS NOT POSSIBLE [THAT] HERE TOO [regarding shields one can say the same, namely, they sustain their lives only with them]!  6. [RATHER] THERE ARE THOSE THAT SAY [REGARDING]shields [THAT] THE REASON IS THIS THAT it is not [permitted to sell shields to them]—  7. THAT BECAUSE WHEN their weapons are complete[ly used up],[THEN]they kill with them [i.e., with their shields].  8. [BUT AS REGARDS] [the second part of the Tannaitic source, i.e.,] and there are those who say: They sell them shields—[WHAT IS THE REASON]? [THEIR REASON IS]  9. THAT BECAUSE WHEN their weapons are complete[ly used up], [THEN] they surely flee.

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10. SAID R.  Nahman: SAID Rabbah b. Avuha: The law is in accordance with [the view of] those who say [that they do sell shields to them]. VIII  1. SAID R. Adda b. Ahavah: They do not sell them iron bars.  2. WHAT IS THE REASON?  3. [IT IS] ON ACCOUNT OF [THE FACT] THAT they forge from them weapons.  4. [BUT] IF SO EVEN hoes and pick-axes ALSO [should not be sold to them, as they may be re-forged as weapons]!  5. SAID R. Zavid: [INDEED, EVEN SO] WITH REGARD TO Hindu tools [which presumably are made of metal of a type that can also be made into weapons].  6. BUT [REGARDING] our current era, IN WHICH we sell [such things to them]—SAID R. Ashi [we sell] to Persians,  7. SINCE they defend us. IX  1. calves and foals, [etc.] (= m. AZ 1:6, sections E.3-E.4)—  2. IT WAS TAUGHT (in a Tannaitic source that parallels t. AZ 2:1): 2.1. R. Judah permits in the case of a maimed [animal] (= m. 1:6, sec. G), 2.2. which cannot be healed 2.3. and live (sec. 2.1. missing in Erfurt ms. of t.). 2.4. They said to him: But do they not have her mounted [by a male], and she gives birth?  3. AND SINCE they have her mounted, and she gives birth, they [the rabbis] came to [opinion of] delaying it[s transfer of ownership to the idolater].  4. [AND] HE [WOULD HAVE] SAID TO THEM [IN RESPONSE]: When will she [indeed] give birth!?  5. WHY [does R. Judah believe she will not give birth]?  6. She [once maimed] will not receive a male [attempting to mount her].

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X  1. Ben Betayra permits in the case of a horse (m. AZ 1:6).  2. IT WAS TAUGHT (in a Tannaitic source that parallels t. AZ 2:1): 2.1. Ben Betayra permits in the case of a horse (m. AZ 1:6), 2.2. because he does work [on the Sabbath], for which one is not liable for a sin-offering. 2.3. And Rabbi [Judah the Patriarch] (Erfurt and Vilna editions of t. read: the Sages forbid) forbids 2.4. on account of two things: 2.5. one, on account of the teaching regarding the accoutrements of weapons, 2.6. and the other, on account of the teaching regarding large cattle.  3. WELL AND GOOD [THE REASON STATED, NAMELY,]  4. [on account of] the teaching regarding the accoutrements of weapons (t. AZ 2:1),  5. [AS] THERE ARE THOSE THAT are killed by its kick.  6. BUT [WITH REGARD TO THE OTHER REASON STATED, NAMELY,] the teaching regarding large cattle (t. AZ 2:1),  7. WHAT IS [THE REASONING OF R. Judah the Patriarch]?  8. SAID R. Yohanan: When it grows old they [hitch it to a mill and] they grind with it [grain] in millstones on the Sabbath.  9. SAID R.  Yohanan: The law accords with [the view of] Ben Betayra. XI  1. IT WAS ASKED OF THEM:   2. [In the case] of a fattened ox,  3. WHAT IS [THE LAW REGARDING] IT?  4. ASK OF  5. R. Judah [i.e., how Judah would rule, and you would reason to one response].  6. ASK OF

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 7. Our rabbis [i.e., how our rabbis would rule, and you would reason to another response].  8. ASK OF  9. R. Judah [i.e., how Judah would rule, and you would reason to this response]? 10. THUS FAR R. Judah permitted 11. ONLY IN THE CASE OF a maimed [animal] (m. AZ 1:6), 12. WHICH does not fall within the category of [the prohibition with respect to] work [on the Sabbath, because the animal is unfit for work]. 13. BUT THIS ONE [the fattened ox]— 14. SINCE he [the idolater who has purchased it] leaves it [to lose sufficient weight to work, and then] it does fall within the category of [the prohibition with respect to] work [on the Sabbath], 15. [THEN] it [would be] forbidden[, in R. Judah’s view, to sell it to an idolater]. 16. OR PERHAPS: 17. EVEN our rabbis forbade [sale to an idolater] 18. IN THAT CASE [i.e., of a maimed animal] ONLY 19. [those maimed animals] WHOSE normal course is other than for slaughter. 20. BUT, 21. THIS ONE [i.e., the fattened ox], 22. WHOSE normal course is for slaughter— 23. EVEN our rabbis [would have] permitted. 24. COME AND HEAR [what a relevant Tannaitic source has to say that may shed light on the matter at hand, namely,] 25. THAT WHICH SAID Rav Judah: SAID Samuel: 25.1. Those of the House of Rabbi [Judah the Patriarch] used to sacrifice a fattened ox on [i.e., in honor of] their [the Roman’s] festival day. 25.2. [Rabbi Judah] deducted [from his revenues] forty thousand [in coin as a bribe] so that they did not sacrifice it on the self-same day, but on the morrow. 25.3. [Later, Rabbi Judah] deducted [from his revenues an additional] forty thousand [in coin as a bribe] so that they did not sacrifice it [i.e., they did not hand it over] alive, but [already] slaughtered.

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26. 27.

28. 29. 30. 31.

32.

33.

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25.4. [Still later, Rabbi Judah] deducted [from his revenues an additional] forty thousand [in coin as a bribe] so that they did not sacrifice it at all. WHAT IS THE REASON [for Rabbi Judah the Patriarch’s actions]? IT IS [CERTAINLY] NOT ON ACCOUNT OF [CONCERN THAT] PERHAPS he [the idolater] will leave it [until it loses sufficient weight to be used as a work-animal and be worked on the Sabbath]! AND [SO] ACCORDING TO YOUR REASONING [when it states explicitly: so] that they did not sacrifice it on the self-­same day, but on the morrow— WHAT IS THE REASON [for such an action taken by Rabbi Judah the Patriarch]!? RATHER Rabbi [Judah the Patriarch] wished to do away with the thing [altogether], and he thought about how to do away [with it], and came [to the view that the best strategy was to have it done away with] little by little. BUT IS IT [i.e., the reason we sought earlier for why it might be forbidden to sell a fattened ox to idolaters,] THAT one leaves it [the f­attened ox to lose weight and] to get strong and one does work [with it on the Sabbath]? SAID R. Ashi: SAID TO ME Zavida: [With respect to] a [fattened] ox—we leave it [to slim down], and [then] one does the work of two [normal oxen].

Obviously, a study such as this does not permit me to comprehensively review the entirety of these extended, “parallel,” composite essays in the Yerushalmi and Bavli. Some key observations will suffice for our arguments. To begin with, first, these two Talmudic texts aptly bear out what I described in earlier sections of this essay as the structural elements of Talmudic compositions, the substance of which is attached to a latticework of questions, requests for analysis, challenges, and the “signposting” of appeals to authoritative sources, all served by formalized terminologies. But the comparison of the Yerushalmi and Bavli passages serves as well to highlight some important differences between the two Talmuds, to be discussed later. Second, while this chapter is not interested in Bavli’s and Yerushalmi’s literary-historical relationship, I feel compelled to point out

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that not a single constituent composition in b. AZ 14b-16a seems directly literarily dependent upon any composition in y. AZ 1:6, despite some obvious, thematic points of contact. The latter, therefore, must be indirect. These first two observations are significant. Because not only do the Talmuds significantly share a common body of sources;41 but also, the fact that our typology of the elements and structuring of Talmudic compositions applies equally well to both Talmuds strongly suggests that the two Talmuds are, independently, exemplars of the same genre. Each Talmud’s authorship, generally understood to be post-amoraic, has pursued its work in accordance with the same general, seemingly normative, and pre-existent template for what stands as a composition and composite essay of gemara. A third observation concerns the degree to which, despite (or perhaps, because of) the use of stock “sign-post” terminology in the two Talmuds, I have had to interpolate (in square brackets) much into both passages to make them intelligible, in particular to make the back-and-forth cadence— question, answer, argument, challenge, re-posed question, answer, argument, challenge, and so on—of the compositions fully evident. This says something about the initial social contexts in which both Talmuds’ sugyot (“lessons”) were “read” (or recited, if in oral-learning mode42), particularly by novice students. Yes, one must learn the use and meaning of the stock rhetorical “signpost” terminology to decipher compositions. But this is not sufficient. The engaged student must learn to construct or re-­ construct the dialectical flow of individual compositions, in part by inserting “missing” (but logically necessary) language. Since no one is born with this skill, its mastery bespeaks of institutionalized settings where this skill is acquired. And later in this chapter, we consider whether these skills are akin to, or are different than, those engendered by pre-“gemara-ic” Mishnah study, and we ask what this might mean for our understanding of early rabbinic identity. A fourth observation concerns the relative richness in the Bavli of formulaic, laconic terminology for asking questions, inviting analyses, and challenging answers and arguments once presented. More than 39 distinct formularies are used in the Bavli composite; only 11 or so in the Yerushalmi composite. The Bavli composite’s 39-plus stock formularies are used at least 65 times. The Yerushalmi composite’s 11-plus are used a little more than 14 times. This means that Yerushalmi has “launched” about 14 inquiries concerning the same Mishnah passage across 8 compositions, for  See the discussion and references in note 22.  See Elman, “Orality.”

41 42

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which the Bavli has launched more than 65 queries and analyses across 11 constituent compositions. The greater penchant in Bavli to launch, consider, dismiss, and reconsider arguments and analyses in its compositions is well reflected in our two sample passages. Fifth, seven of eight of the Yerushalmi composite’s compositions treat matters arising from our Mishnah passage; the eighth is the exception. In Bavli, 4 of 11 compositions (I, II, IX, and X) treat language in the Mishnah passage; fully 7 of 11 do not “originate” with the analysis of our Mishnah. Five of these seven (III, IV, V, VI, VIII) take as their departure-points amoraic legal traditions. Another one (VII) opens with the citation of a baraita (not paralleled in Tosefta). The final composition of the Bavli passage (XI), like the final composition (VIII) in the Yerushalmi composite, simply starts with a question: “IT WAS ASKED OF THEM, in the case of …, WHAT IS [THE LAW REGARDING] IT?” Nonetheless, in all of seven compositions in Bavli that do not originate in addressing “our” Mishnah, including the five treating amoraic traditions, the “gemara-ic” analysis ensues, just as it would if the composition were a treating an aspect of the base Mishnah text.

What Has Happened to Mishnah Study in Studying It “Talmudic-ly” as an Identify-Forming Activity Within the Rabbinic Movement? Some Observations and Proposals What do the basic, core overarching traits of the two Talmuds, articulated earlier and illustrated by our two “parallel” composite essays in the Yerushalmi and Bavli, suggest about the evolving meaning and impact of Mishnah study in forming core shared identity traits in the early rabbinic guild centuries after Mishnah’s initial promulgation within rabbinic circles as an authoritative text? First, that both Talmuds were organized “Mishnaic-ly” attests to the continuing status of Mishnah study centuries after Mishnah’s promulgation. Second, in both Talmuds, the study of Tosefta and Tosefta-like passages, and halakhic midrashim is presented as having no significant value in its own right. All are, formally speaking, adduced in the process of Mishnah analysis, together with similar traditions attributed to amoraim. This claim must be qualified for the Bavli, a point to which I will return. On the other hand, third, all of these extra-Mishnaic legal traditions

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warranted preservation and consideration, and their content must be, in some sense, harmonized with Mishnah’s in a process exploring their significance for Mishnah’s meaning and their intersection with one another and with Mishnah. Both of these points, singly and together, are important. Why? Because, to hark back to remarks made earlier, it could well have been different. There is no historical inevitability within rabbinic culture that all other Tannaitic and amoraic sources should be marshaled gemara-ic-ly in the effort to discuss Mishnah. The halakhic midrashists, for example, with their very different conception of the place of Scripture in halakhic discourse, could have won the day, and one or both “Talmuds” might have been organized “scripturally” rather than “Mishnaic-ly.” Or turn-of-the-­ fifth-century rabbis in the Galilee and turn-of-the-seventh-century rabbis of Babylonia might have anticipated Maimonides’ Mishneh Torah, and produced a new “Mishnah” that was a true law code that in effect arbitrated among all Tannaitic and amoraic legal traditions. They may then have made such a code the primary object of rabbinic study and its mastery the hallmark of being a rabbi.43 But none of this happened, and the most likely reason that it did not is that Mishnah study continued (formally) to occupy the place of privilege in rabbinic inner-group pursuits. Fourth, the authors of both Talmuds, working largely independently with many common sources, nonetheless seemed to have worked within a prior, late fourth-century, normative definition of what counted as gemara.44 Mishnah study, as the central core activity, was to be undertaken within this “gemara-ic” template. The recipe is straightforward: 43  Maimonides, in his introduction to the Mishneh Torah, indelicately suggested that his Mishneh Torah should largely supplant study of the Bavli, in order to free up rabbis’ time to study philosophy, which for Maimonides was a higher calling. The Maimonidean controversy took about a century to dissipate. 44  The notion that there developed a “gemara-ic” norm for studying Mishnah prior to that norm informing the production of the Talmuds is not only strongly suggested by this paper’s demonstration that both Talmuds reflect the very same structural template for creating Talmud-compositions, but have created these compositions largely independently on one another. This notion also finds some echo in rabbinic traditions that talk about Talmudic study that patently predate the production of “our” Talmuds. Take, for example, an alleged baraita (without any parallel to knowledge in Tosefta) cited at b. BM 33a:

“Our Rabbis taught: Those that occupy themselves [just] with [the study of] scripture are of limited value; with [the study] of Mishnah [but not of other associated or subsequent rabbinic teachings] are certainly of value and will be recompensed [for their

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(i) one organizes matters around Mishnah texts, taken in order, by tractate, “chapter,” and Mishnah passage; (ii) one musters Tannaitic and amoraic traditions that complement, comment upon, or topically supplement the Mishnah passage at hand; (iii) on their basis, one formulates questions about, and identifies issues seemingly begging for critical analysis in, the Mishnah passage, and (iv) one proceeds to create answers and arguments, together with “pressure-testing” challenges and counter-arguments, that address these questions, using the ancillary sources at hand. Are the core, identity-forming skills and knowledge entailed in devoted Mishnah study done “gemara-ic-ly” the same, similar, or quite different than those demanded by devoted Mishnah study undertaken with just or primarily the traits of the Mishnah text before one (as examined in our first study of this trio of papers)? Yes and no! Some requisite skills carry forward to the gemara-ic study of Mishnah, some do but are mitigated by what gemara does, some are new, augmented or modified. Let me briefly catalogue these skills and requisites. Knowledge of scriptural law and of post-scriptural-but-pre-Mishnaic law—as spelled out in the first study of the trio—largely remains as a requisite. But when other relevant Tannaitic and amoraic sources are amassed in accordance with the gemara-ic recipe, this knowledge gap may be filled in for one. But by the same token, since we now know that the core model for treating Mishnah gemara-ic-ly seems to predate both the Yerushalmi and the Bavli, the student of Mishnah processing Mishnah gemara-ic-ly before our Talmudic compositions were produced must already have been conversant with these other sources, or have had recourse to a master who does. One requisite is made easier; another perhaps equally-onerous, but different, one is demanded of the Mishnah student. As we argued in the first study of the trio, Mishnah study done “straight up” (a) requires one to fill in the circumstances of the hypothetical cases, study]; with [the study of] talmud, nothing is of greater value. But always pursue the [study of] Mishnah more than the [study of] Talmud” [my translation, but edified by that of Joel Zaiman in his essay, “The Traditional Study of the Mishnah,” in The Modern Study of the Mishnah, ed. Jacob Neusner (Leiden: Brill, 1973)].

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so that they are complete, and so that the ruling or rulings which follow them make sense. In a closely related vein, (b) when Mishnah varies circumstances, producing a string of closely related cases, followed by, or punctuated with, rulings, the Mishnah student understands the question that begs exploration to be: Why should these changes in the circumstances matter and how? When (c) there are opposing rulings in Mishnah to the same set of posited circumstances, as in a Mishnaic dispute, the Mishnah student is implicitly invited to ask: Why might the two disputants rule differently? This triad of required skills is part and parcel of what in the first study of the trio I called advanced taxonomic thinking demanded by Mishnah study in order to understand why one rule is appropriate in one instance, but not in another seemingly closely related instance. All three of these intellectual enterprises, regularly demanded implicitly when contemplating Mishnah passages, are among the questions routinely and often explicitly posed in a gemara composition. Except that the collected, relevant Tannaitic, halakhic-midrashic and amoraic sources that are the raw materials for gemara-ic examination of a Mishnah passage may be read as some ready-made answers to such questions. This is, to my mind, a significant shift in the identity-forming skill-set for members of the rabbinic group. Because now the Mishnah student is not necessarily reasoning from the direct confrontation with the Mishnah text, but “reading backwards” from the collected, relevant “secondary” sources. This is a different skill, because it involves at its core the “harmonization” of collated sources brought into relation with one another and with Mishnah. This is now becoming a “source-relating” exercise, rather than (or in addition to) the exercise of taxonomic, high-grid-defining skills engendered by Mishnah study, as articulated in our first study of the trio. As we have seen, an important element of the gemara-template is “pressure testing” the validity of answers and arguments by attempting to disprove them. This process of “testing” creates much of the back-and-forth cadence of a gemara composition. The Bavli often takes this much further than the Yerushalmi and without necessarily needing a probative conclusion, since the Bavli does not hesitate in many instances to disprove all possible solutions to its queries. For Bavli, it is as though the process of spinning out counter-arguments was understood to be a “good” in and of

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itself. Again, this represents the modeling a different (or additional) skill requisite, quite unrelated to the goal of rendering Mishnah more intelligible. We argued in the second study of our trio that juxtaposing Toseftan material containing attributions to named authorities with a Mishnah ruling that is anonymous implicitly invites subjecting Mishnah passages to source criticism and tradition-history. Studying Mishnah “gemara-ic-ly,” among other things, makes explicit, normalizes and routinizes such source-­ criticism. Both Yerushalmi and Bavli regularly deploy their respective stock terminology to solicit options for “who taught it [i.e., this Mishnah ruling]” or “whence [this Mishnah ruling].” As shown by our translations of Yerushalmi and Bavli composites, the (extant) gemara compositions are highly laconic. Their back-and-forth flow of question, answer, argument, challenge, counter-argument, counter-­answer, and so on is not fully discernable or intelligible without extensive interpolation. The reading of Mishnah texts also requires the capacity to interpolate additional information, usually the “filling in” of the missing bits that are essential factors of the hypothetical case for which Mishnah provides a ruling. That is, the Mishnah student is completing the taxonomic exercise in which Mishnah is engaged. These two demands to “in-fill” before a text is intelligible—in the case of Mishnah, on the one hand, and in the two Talmuds, on the other—do not really appeal to the same intellectual skills at all. For the Mishnah it is the skill of the taxonomic expert, as just mentioned; for the Talmuds, it is the skill of the dialectical expert, that is, the discernment and reconstruction of the back-­ and-­forth, point-and-counter-point flow of argument. Both are transferable, complementary skills to activities and duties outside of the inner-group activities of Mishnah study, whether done “straight up” or now “gemara-­ ic-­ly,” but they are not at all the same. Moreover, the dialectical expert is one for whom “pressure testing” is also a normative skill, again a transferable professional asset to a world outside that of rabbinic circles or institutions. Sometime after the rise of Islam, the study of the Bavli effectively supplanted the study of Mishnah as a core, identity-forming activity within rabbinic circles. The skills entailed in Bavli study then became the valued traits of being a rabbi, and therefore informed shared rabbinic identity and

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valued professional expertise.45 The rabbinic identity forged in Mishnah study slipped away (or was subsumed), and Mishnah study never again occupied a place as the quintessentially rabbinic activity within rabbinic circles.

45  We certainly know that sometime over the course of the seventh through ninth centuries the study of the Babylonian Talmud supplanted the study of Mishnah as the core, innergroup rabbinic activity that marked one as a rabbi—for those members of the rabbinate who saw the Babylonian rabbinic academies as seats of authority. The geographical range of those who acknowledged the hegemonic authority of the Babylonian academies expanded greatly during the period of Islam’s spread in the Middle East and Mediterranean basin. Indeed, before that 300-year period was concluded, precious few, if any, within rabbinic circles would have seen that rabbinic leadership of the Land of Israel or their Talmud Yerushalmi in similar light. We cannot really discern the state of affairs around the time when the Bavli came into existence sometime over the course of the sixth century and/or early seventh century. Even less so in the fifth century in the Land of Israel, just after the Yerushalmi was produced. Indeed, we do not know whether in the Land of Israel the study of the Yerushalmi in rabbinic circles was ever understood to have entirely supplanted the importance of the study of Mishnah, as the Bavli later did. On the evolution of the study and status of the Bavli in the medieval period, I have found the work of Daniel Boyarin particularly helpful; see Daniel Boyarin, A Travelling Homeland: The Babylonian Talmud as Diaspora (Philadelphia: University of Pennsylvania, 2015).

Index1

A Aaron (biblical leader), 140 Abba Saul, 33, 47 Abbaye, 291, 292 Abin, 285 Abraham (patriarch), 34, 48, 63, 70 Abtalion (Avtalyon), 133, 139 Actual practices/behavior, 179 Adar (Jewish month), 115 Adda b. Ahavah, R., vi, vii, xiii, 7, 120, 121, 154, 176, 187n9, 188n17, 189, 190, 190n19, 190n20, 191, 192, 192n22, 201, 216, 257, 260, 261 Adda b. Ahavah, R., 296 Admon (tannaitic figure), 171 Adultery, 114, 115, 156, 173–176 husband’s suspicions of, 156, 173, 175 Adulthood age of (see Maturity) transition to, 148, 149, 165

Age, 31, 99, 100, 107n32, 112, 113, 148, 155, 156, 164–166, 173, 176, 180 Aggadah/Aggadot (non-legal materials in Midrash and Talmud), 195, 228, 267 See also Talmud, non-legal compositions/composites in Agricultural gifts/dues See also Matanot aniyim (gifts to the poor); Matanot kehunah (gifts to the priests) Agricultural gifts/dues, 11, 22, 27n12, 28, 29n17, 32, 36, 38, 39, 46, 47n64, 48, 57–59, 65, 201 Agriculturalists, see Farmers Agricultural law, 59, 65 Agricultural practices in rural areas (The term “Agricultural practices in rural areas” is not found in the text. Kindly suggest.)

 Note: Page numbers followed by ‘n’ refer to notes.

1

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INDEX

Agricultural production, 202 Agricultural society/economy, 27n12, 36 Agriculture, 20, 36, 59, 65, 66, 77–82, 84, 85 Agronomists/agronomy, 40, 76 Akiva (ben Joseph), R., vi, 34, 131, 140, 177, 249 Alexander, Elizabeth Shanks, 192–193n23, 198n32, 198n33, 224n15, 264n11 Alexandria, 78n51, 191 Almsgiving See also Matanot aniyim (gifts to the poor) Almsgiving, 36n34, 60, 61n104 Am ha’aretz (amei ha’aretz), 35, 79, 100, 127 Ami the Babylonian, R., 283 Ammonites, 161 Amoraic legal traditions, 279, 301, 302 Amoraic sources, 93n91, 270, 278, 302–305 Amoraim (The term “Amoraim” occurs in both italics and non–italics style in the text. Kindly suggest the format to follow in the index.) Amoraim, 226, 271, 272, 273n27, 301 Analogy/analogies, 131, 177, 253, 272 Ani, 27, 28, 34, 36, 41, 45 See also Evyon; Poor, the Animals blemishes of (The sub term “blemishes of ” is not match with main term “Animals.” Kindly suggest.) firstborn/firstlings of, 207, 210 infertile, 281

infertile, 288 maimed, 281, 285, 296, 298 possession/borrowing of, 288, 290 sale/leasing of (see also Lessee) sale/leasing of, 288, 290 See also Wild beasts Anthropological/anthropology/ anthropologists, ix, x, xii, xiv, 3, 9, 11, 12, 15, 18, 20–42, 215n54, 219n5 Anti-evolutionists, 17 Antignos, 131 Apodase, see Mishnah, rulings in Aqabia (Akavya) b. Mahalalel, 114 Aramaic, ix, 228, 269, 280 Aramean, 284 Arba’ah Turim (by Jacob ben Asher), 199 Archeological evidence/material remains, 9, 10 Archons (Ptolemaic administrative figures), 189n18, 190, 191 Aretz (Temple-era designation), see Israel, Land in Argument(s)/analysis circular, 254 persuasive, 132 rational-legal, 254 Aristocratic, 5, 191 Ashi, R., 291, 292, 296, 299 Asses (donkeys; example of unclean species) pregnant; giving birth, 209; male firstborn of, 206, 209, 210; offspring of, 208 Assyrian Empire (The term “Assyrian Empire” is not found in the text. Kindly suggest.) Athens, 191 Atonement offering, 70 Augé, Marc, 66, 93 Aunts, 149, 159, 160

 INDEX 

Authority decentralization of, 129 in families (The sub term “in families” is not match with main term “Authority.” Kindly suggest.) generational transmission of, 122, 136–138 oral transmission of (The sub term “oral transmission of ” is not match with main term “Authority.” Kindly suggest.) Roman, 5, 6, vii Temple, 120, 121, 121, 123, 129, 130, 137, 144, 145, vi Avery-Peck, Alan J. (The term “Avery–Peck, Alan J.” is found in reference like notes only. Kindly suggest.) Avery-Peck, Alan J., 77n49, 81n59, 152n5, 271n22, 275n30 Avot de Rabbi Nathan (AVRN), 194, 195n27 B Babylonia (Mesopotamia) Persian, 7n9, 8 rabbinic academies (yeshivot) in, 9n13, 257 Babylonian Talmud (Bavli) authors of, 269, 270n22 commentators (mefarshim) on, 266 composite essays in, 269, 270n22, 271, 274, 279–301 compositions in, 259–306 conglomerates in, 267n16 literary-rhetorical traits of, 265–274 Scriptural commentary in, 267n16 study of, 219, 265n14, 266, 271, 302n43, 305, 306n45

309

use of counter-arguments for modeling of skills in study of (The sub term “use of counter–arguments for modeling of skills in study of” is not match with main term “Babylonian Talmud (Bavli)”. Kindly suggest.) Babylonian Talmud by tractate Avodah Zarah, 279 Berakhot, 123, 137n17, 201 Megillah, 141 Menahot, 83–84, 146, 146n18, 203 Sanhedrin, 87, 128, 129n11, 160 Shabbat, 31n23, 34, 135, 143, 152, 201 Bandit(s), 53n83 See also Robberies/hold-ups Ba (Abba), R., 10 Ba (Abba), R., 281 Barley, sale of, 295 Bathhouse (The term “Bathhouse” is not found in the text. Kindly suggest.) Beans, 289 “Be fruitful and multiply,” see Reproduction Beggars/begging, 34, 48, 49, 54, 171, 303 Behavior/conduct (The term “Behavior/conduct” is not found in the text. Kindly suggest.) Behavior/conduct, 141 Beitar, 78n51 Beit ha’peras (The term “Beit ha’peras” is not found in the text. Kindly suggest.) Ben Azai, 142 Ben Betayra, 286, 297 Benefit of the doubt, 195

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INDEX

Ben Sira (Hellenistic figure), 186n8, 187n9, 191 Ben Sira, Book of, 187 Beraita (beraitot), 197, 199, 225, 226, 226n20, 226n21, 227, 229n26, 243, 263, 271, 279n34, 284 See also Extra-Mishnaic Berlin, Rabbi Naftali Zvi, 111n35 Bestiality, 288, 293 Bet Din (Jewish court), 129, 134 Bet ha’midrash (house of study; batei midrash), 207 Bet haperas, 73–76 See also Graves Betrothal, 115, 153, 168 Bialik, Hayyim N. (The term “Bialik, Hayyim N.” is not found in the text. Kindly suggest.) Bible, the, see Scriptures Biblical evidence, 21n24 Biblical law, 11, 22, 204, 207, 210, 211, 255 Mishnah’s dependency upon, 28n15 (see also Mishnah’s dependency upon; Scriptures) Biblical literature, x, 188, 191 Biblical models, 180 Biblical passages, 114 Biblical past, 121 Biblical proof texts, 160 Biblical references, 144, 152 Biblical responsibilities, 37 Biblical rules/injunctions, 47, 129, 137, 139, 142, 152, 156, 158, 160, 207 Biblical texts ambiguities in/of, 123, 142 literal reading of, 123 simple meaning of, 123 written, 123 Biblical verses, 17, 195 “Big tent,” 213, 248, 248n60, 260

Biology/biological relationships, 117, 159 Birds, 138 Bisna, R., 287 Bitter water ritual (for woman accused of adultery), 173, 175 Blessing(s), 11, 37, 141, 283 Blind, the, 103, 177 Blood, shedding of, 54 Bloodstains, 100, 101 Body dead (see Corpse/deceased person) human (live) (The sub term “human (live)” is not match with main term “Body.” Kindly suggest.) Bogeret, 162, 165, 172, 173 See also Women/females, virgin Boils, 169 Bonds (from court bureaus of non-Jews), 249 signatories of, 249 Bondswoman, see Slaves, women/girl Books, study of, 293 Boundaries among insiders, 116 between Jews and non-Jews, 116 Boyarin, Daniel, 272–273n24, 306n45 Boys, 107, 156, 160, 164, 170, 190 Bread, 30, 32, 53, 84, 167 Bribe, 298, 299 Bride, 153, 156, 166, 171 Broker, 290 Brooks, Rodger, 40, 42, 43, 51 Brother, 28, 33, 43, 44, 89n81, 104, 107, 152, 157–159, 162, 163, 165, 168, 170 Brother-in-law, 163 Bureaucrat(s)/bureaucratic, 177, 187n9, 188–190 Burial (The term “Burial” is not found in the text. Kindly suggest.) Burning bush, 70 Business, 31, 154, 154n7, 157

 INDEX 

C Calves, 281, 296 Canaan, Land of, 71 See also Israel (ancient); Israel, Land of Capital punishment, see Death penalty Captivity, redemption from, 166 Case, hypothetical, 210, 220, 303, 305 Caste purity, 162 Castes/caste system, 110, 121, 121n2, 122, 127, 155, 156, 162, 164, 202 Cattle large, 281, 283, 285, 287, 288, 290, 292, 297 small, 281–283, 287, 292 Censorship, non-Jewish (during Middle Ages), 236n45 Chain of direct transmission/ legitimacy, 131, 137, 186 Chaos, 5, 68, 126, 130, 143, 144, 160 Charismatic leadership/authority, 120, 125 Charity, 28, 31, 31n22, 32, 35, 36, 49n72, 54, 57, 58n93, 59, 60n99 organized, 36n34, 47, 47n64, 48, 48n67, 49, 58, 60, 61n104 Chastity, lack of, 167 Chief rabbi, ruling of, 139 Childbearing, 148, 155, 160, 161, 175, 178 Child bride, 156 Child marriages, 155 Children, 34, 48, 48n70, 89n81, 91, 101, 105–107, 111, 136, 138, 149, 152, 153, 153n6, 155–158, 160, 161, 163, 164, 170, 177–179 See also Minors status of, 162 Children of Israel (bnei Yisrael), 103, 105, 106, 114, 115

311

Circumcised males, 102 See also Uncircumcised males Circumcision, 101, 102, 102n21 Circumstance(s) (in a case/argument) extenuating, 292 Citation(s) (in general) Mishnaic, 55 Scriptural, 253 City/cities hinterland of (tehum), 241 of refuge, 201 charter, 190 surrounded by a wall, 69 See also Towns/villages Civil/criminal law, 199, 231 Civil servants, 125, 126 See also Retainers/retainership Clean/cleanness, see Pure/impure Cleanliness, 52 Clean species, 210 Clothes/clothing, 32n27, 51–53, 53n81, 167, 174 forbidden textile mixtures in, 91 Cloths, see Clothes/clothing Cohabitation, 156 Cohn, Naftali, 64n3, 129n9 Collective consciousness, 126 Collective memory, 69n25 Commander (imperial Persian post), 189n18 Commitments, v, 140, 153, 169, 173 See also Vows Communal arrangements, 54 Communal boundaries/ boundary system closed, 98 porous, 121n2 Communal consensus, 144 Communal funds/charitable institutions/public funds, 31, 31n21, 48, 55, 58, 168 Communal leadership crises, 121

312 

INDEX

Communal life, 60, 120 Communal membership obligations/privileges of, 116 Communal penalty, 156 Communal re-structuring, internal, 121 Communal solidarity, 61, 142 See also Social solidarity Community building blocks of, 148, 178 constructed, 147 functioning of, 123, 148 generational changes in composition of, 156 generational survival of, 161 imaginary, 120, 122, 147, 147n1, 163 inclusion of others within, 156 integrity of, 138 norms of, 160 participation in, 163 stability of, 25 status in the, 154 total, 116 See also Congregation Community cohesion, 116 Comparative methodologies/studies, 183n2, 230n27, 253 Comparator, 184, 185, 223 Comparison of other groups, 182 Compensation, 49, 90, 155, 178 Composition, vin1, 15, 16, 152, 152n5, 156, 162, 193n23, 195, 195n27, 202n41, 207n48, 219, 220, 223, 223n14, 226, 226n21, 227n22, 228, 228n25, 229, 233, 254, 259–306 Conceptual issues/challenges/ dilemmas, 5, 12, 133 Conclusions (to disputes, debates, etc.), 214, 248 Confession, 113, 174

Congregation, 101, 110, 111 See also Community Containers, 79 Contamination, 98 Continuity (on other levels) patriarchal authority, 149 between Tosefta and Talmud, 276 Continuity (on social level) community, 161, 164, 178, 179 family/generational/kinship, 94, 148, 150, 155, 157–161, 164, 178 group, 179 Contractual exchanges/language, 157 Converts/conversion ritual process of, 102 as unlearned, 102 See also Ger (proselyte); Strangers Cooking as a woman’s responsibility, 153 Corpse/deceased person contact with, 101 impurity from, 74 Coser, Lewis A., 30 Cosmos, Jewish/Temple society as, 93 Courts decisions/rulings of, 139 of laypersons and individual scholars, 129 power/authority of, 139 Cousins, 149, 160 Cow(s), 74, 103, 103n26, 289, 291 Crafts, instruction in, 293 Creditor(s), 31, 170 Cultural hybrid, 97 Cultures, xii, 3–9, 13, 19–21, 31n21, 60n99, 65, 87, 97, 112–113, 122, 126, 148, 159, 262, 302 Currency, 172 See also Dinar (currency in the Roman Empire); Maneh (currency among Jews in

 INDEX 

Roman-era Israel); Money; Sela (currency among Jews in Roman-era Israel); Shekel/ half-shekel (ancient Israelite currency); Zuz (currency among Jews in Roman-­ era Israel) Custom(s) (manners), 99 local, 129, 141–144, 166 D Dal, see Evyon Damage(s)/injury, 11, 50, 130, 165, 295 payment for, 167 Damages (Nezikin-Mishnaic order/ division), 130 Danby, Herbert, 235, 235n42 Dauf (character in ancient Egyptian wisdom literature), 189 Daughter(s), 52, 110, 111, 114, 135, 141, 154, 155, 158, 159, 162–164, 166, 172–173, 175 labor/property of, 168, 171 Deaf mutes, 103 Death penalty, 79, 108 Debate(s), 2, 12, 43, 214, 223n14, 228, 245–247, 256, 263n11, 270, 272, 276, 277 scholarly, 198n32, 224, 243, 270n22 See also Mishnah (mishnayot), debate form in Debt, 47, 107 Deception, 51, 169, 178 Decurions (Roman administrative figures), 191 Demai, 79 Derekh ha’gav (in an indirect way), 208, 262 Deriving benefit, 50, 52

313

Destitute, see Needy, the Deuteronomic reformation, 185 Deuteronomy, Book of, 28, 29, 33, 99n13, 157, 162n10, 177, 188, 271 Deviancy (The term “Deviancy” is not found in the text. Kindly suggest.) Diaspora Jewish communities in, 6, 237n46; inscriptions in, 192n22 See also Eretz ha’amim; Hutz la’aretz; Medinat hayam Dickie-Clark, H.F., 98, 117 Dicta (scriptural and rabbinic alike), 219 Dimi b. Abba, R., 294 Dinar (currency in the Roman Empire), 31, 107, 112, 167 Disabilities/disabled, the, 132, 157 Disciple/discipleship, 100, 140, 194, 248 Discussion, 21, 27n12, 28n14, 32, 33n33, 36, 40n43, 45, 47n62, 53n81, 53n82, 60n98, 63n1, 64n3, 64n5, 68, 77n49, 78n52, 79, 79n54, 80n58, 83, 84, 91n84, 92n85, 96, 97n8, 99, 106, 122, 128–132, 134, 135, 138, 139, 141, 142, 144, 146n19, 150, 151, 157, 159, 161, 170, 172–178, 183n2, 190n20, 211, 257n70, 261n5, 281 Disputes monetary, 129 resolution/adjudication of, 144 unsettled, 134 See also Mishnah, dispute form in Divine intervention, 135 Divine presence, 46 Divine retribution, 46 Divine revelation, 123, 131

314 

INDEX

Divorce against one’s will, 169 consent for, 153, 179 custody of children in, 177 grounds for, 153, 177, 177n15, 178 intention in, 176 laws of, 104 role of agents/courts in, 176 writ of (see Divorce document) See also Marital dissolution Divorce document authentication of, 242 signatory requirements for, 199 See also Get (writ of divorce) Divorcee, 154, 171, 175 Donors/donations, 30, 33, 39, 57, 129 See also Giving Dosa b. Harkinas, R., 140 Double inheritance/portion for firstborn sons, 106 Dough offering (separation of the dough), 77, 78, 78n51, 282 Douglas, Mary, 57, 215n54 Dowry, 168, 171 Durkheim, Émile, 67, 76, 119, 124–126, 130, 143, 144, 185n5, 200n36 E Early rabbinic evidence, 16, 194–197 Early rabbinic group full(-fledged) members of, 33, 216 as a guild, vii, xii, 7, 219, 261, 262 institutionalization of, vii, 261 membership in, 184 professional competencies of, 215 social formation of (group-­ formative), vii, xi, 181–185, 192–197, 218–220, 222, 224, 225, 234, 244, 259, 264 social identity of, xi, 193, 202, 218, 220, 222–225, 234

Early rabbinic legal traditions, 271 Early rabbinic literature proof texts, 95 sayings and stories, 182, 182n1 Early rabbinic movement centrality of Mishnah study in, 184, 194–197, 225, 254 origins/development/organization of, 7, 9, 182, 213, 219 social description of, 219 social developments within, 184 Early rabbinic texts/documents, ix, 2, 2n3, 12, 14, 15, 47, 95, 183n3, 201n38, 232n33 Economic networks, 148 Economic obligations, 152 Economic relationships, 155 Economic resources, 121, 148 Economics, vii, 28, 30, 31n24, 49, 58, 77n48, 117, 121, 126, 136, 137, 148, 150, 152, 154, 155, 157, 164, 169, 176, 179, 260, 260n3 Economic transitions, 169 Education, 100, 136, 144, 187, 190, 191, 193 See also Literacy; Teachers Educational/instructional institutions, see Schools Educational opportunities, for the many vs. for the few, 136 Educational systems, 189 Elder(s)/Elders (the), 8n13, 44, 54, 101, 128, 249 Eleazar ben Azariah, Rabbi, 43, 44, 85 Eleazar ben Rabbi Yose (the Galilean), Rabbi, 34, 48, 105 Eleazar, Rabbi, 137, 249 Elephantine Papyri, 189 Eliade, Mircea, 67, 67n18, 68, 92, 93, 93n91 Eliezer ben Jacob, Rabbi, 44, 53, 72, 77, 77n48, 78, 78n51, 84, 102, 111, 174

 INDEX 

Eliezer (ben Hyrcanus), Rabbi, 212, 237n46 Elite(s), xi, 120–122, 124, 130n12, 133–137, 164n13, 204, 230 Elman, Yaakov, 261n5, 269n21, 270, 274n28 Engagement (pre-marriage), 153, 169, 209, 210, 214, 218, 220–222, 229, 243, 277 See also Fiancé(e) Epstein, J.N., 2n3, 227n22 Eretz ha’amim, 73–77, 89, 93 See also Diaspora; Hutz la’aretz; Medinat hayam Eretz (Temple-era designation), see Israel, Land of Erfurt (manuscript), 218n2, 236 See also Medieval scribes/scholars/ rabbinic codes Erusin (betrothal ceremony), 153, 156, 162, 166, 169, 170, 173 See also Kiddushin; Marriage, process of; Nisuin; Wedding Eruv, 137 Ervah Davar, 177 Esler, Philip F., 10n15 (The term “Esler, Philip F.” is found in reference like notes only. Kindly suggest.) Ethnicity/ethnic groups, 99, 161, 162 European Association of Biblical Studies (EABS), v, 1n1, 2, 2n1, 147, 198n33, 218n1, 218n3, 262n7, 265n12 Eusebius, 11 Evyon, 28, 28n16 See also Ani; Needy, the Exclusion(s), 13, 99, 116, 117, 148 See also Marginality/Marginal situation Exegesis/exegetical, 103, 203, 253, 267n16 See also Midrash

315

Exilarch, 7 Exodus, Book of, 70, 71, 102, 105, 106, 108, 115, 135n15, 140, 271 Extended family/kin, 108, 148, 149, 156–159 Extra-Mishnaic evidence, 184, 194–197, 203 legal traditions, 301 See also Beraita Ezekiel, Book of, 63 Ezra (the Scribe), 185–187, 189, 189n18, 191 See also Nehemiah Ezra-Nehemiah, Book(s) of, 186, 186n7, 187, 189 F Families, male authority/control in, 153, 155 Family formation/new families, 94, 149, 150, 153, 155–157 peer/kinship pressure for, 179 Family integrity, 175 Family/kinship/fraternal relationships, 5, 11, 20, 32n26, 47, 48, 88, 90, 94, 108–109, 119, 121, 122, 127, 130–132, 135, 136, 138, 143, 147–180, 199, 231, 233n36, 261, 261n6 Family/kinship traditions, 121, 122 Family law, 11, 199, 231 Family life, 149, 151, 152 Family networks, 148 Family patterns, 149, 151, 152, 155, 180 Family principles/norms, 130, 136, 176 Family processes, 148–152, 155, 178 Family roles, 149 Family size, 148, 160 Family structure, 147–180 Family support, 168

316 

INDEX

Family system, 151 Family transitions, 155 Family unit, 152n5 Family values, 167 Farmers, 40, 41, 42n50, 43, 50, 51, 57–59, 61, 77, 83, 85 See also Field owners Farms, 77, 83, 85–87, 150 Father, 105–107, 109, 112–115, 130n12, 152–156, 158–159, 165, 166, 168–173, 177 Father-in-law, 159 Female animals giving birth, 208 Festivals (Moed-Mishnaic order/ division), 11, 20, 31n23, 46, 92, 143, 230, 231, 298 Festivals/feasts, see Holidays Fiancé(e), 166, 168, 173 See also Engagement Field(s) plowed (see also plow/plowing) Field(s) fallow, 291 guarding from intruders, 41 plowed, 291 Field owners, 30, 37, 40, 41n48, 42, 45, 51, 57, 58 See also Farmers Financial matters, 188n17 Fine (monetary penalty), 31n23, 109, 112, 113, 165, 255, 284 Firepans, Biblical Hebrew terms for, 203 First fruits (bikkurim), 69, 69n27, 81, 113 Firstling, law of, 206, 209, 210, 235, 236, 251, 252, 282, 284, 285 Fishbane, Simcha, x, xi, xii, xiii, xiv, 2n1 Fixed point in sacred space, 68, 93 Flesh, 74, 105 Flux, uncleanness by, 105, 115 See also Zav

Foals (young horses), 281, 296 Food/foodstuff(s) forbidden, 82 misappropriation of, 42 sanctified, 80 Foote Moore, George, 16n21 Forbidden, 18, 51, 56, 75, 79, 82, 91, 107, 140, 163, 175, 176, 282, 283, 285, 287, 291, 294, 298, 299 “Form analysis” (Neusner’s analysis of dispute form among proto-­ rabbis), 211n51 Fornication, see Adultery; Sexual relations, outside marriage Four species (Arbah Minim), 142 Fox, Harry, 2n1, 223n14, 263n11 Frankel, Zachariah, 2n2 Fraud, claim of, 106 Fruit, 5, 51, 81, 82, 88 G Galilee, vi, viii, 6, 172, 302 Gamliel, Rabban, 131, 140, 167, 171 Gardner, Gregg E., 26n10–27n10, 31, 31n22, 39n41, 47, 48n67, 53n81, 57, 58, 60n99 Garments, see Clothes/clothing Geiger, Abraham, 21n2 Gelding (castrated male horse) (The term “Gelding (castrated male horse)” is not found in the text. Kindly suggest.) Gemara (Talmudic elaboration on Mishnah; in plural, gemarot) “gemara-ic,” 300–304 as literary genre, 203n44, 273n27, 276 See also Talmud as Mishnah commentary

 INDEX 

Gender differentiation in, 176 indeterminate, 68 Generational responsibilities, 149 Genesis, Book of, 63, 70, 160 Gentiles, see Non-Jews Ger (proselyte), 28, 96, 96n5, 98, 99, 99n14, 101–103, 105, 106, 112, 116, 117 See also Converts/conversion; Strangers Get (writ of divorce) as business contract, 154 See also Divorce document Gezel aniyim (stealing from the poor), 38, 38n39 See also Stealing Gezerot (decrees), 90 Gibeonites, 100n16, 127 Girls, 52, 90, 110–115, 153, 155, 156, 160, 161, 164–167, 170, 172 taken captive, 112, 113, 165 See also Women, taken captive Giving, 30, 45, 57, 60, 131 reciprocity in, 57 See also Donors/donations Gleanings, see Leket Goats, 281 God covenant with, 44, 59, 66, 94 legal determination by, 135 Goldscheider, Calvin, x, xi, xii, xiii, xiv, 2, 94, 116n41, 120n1, 120n2, 146n19, 148n2, 161n9 Goodblatt, David, 88, 105, 183n3, 193, 221n9, 237, 261 Goodman, Martin, 7n7 Gospels, the, 187, 189, 190, 233n37 See also Mark; Matthew Governmental-administrative system, 189

317

Grandchild(ren), 149, 158, 162n10 Grandparent(s), 22, 149 Grapes clusters of, 29 separated, 29, 51 See also Vineyards Graves, 73, 73n39, 74, 84, 101 See also Beit ha’peras Gray, Alyssa M., 36n34, 49, 60, 270n22 Great Revolt (66–71 CE), 6 Greco-Roman, 8n11, 10, 16n21, 31, 60n99, 189–192 imperial administration, 189, 191 See also Hellenistic Greenspoon, Leonard J., 26n10 Green, William S., 17 Grid-group theory, 26n4 See also High-grid thinking/analysis; Mishnah, matrix analysis of Group(s) interaction in, 26, 26n7, 61, 97 member of/membership in, vii, xii, xiv, 33, 60, 61, 97, 98, 184, 212, 215, 216, 264, 304 Group boundaries, 148 Group exclusion, 148 Gymnasium (Ptolemaic school), 190, 191 H Hadash, 82 Haggai, R. (The term “Haggai, R.” is not found in the text. Kindly suggest.) Hair allowed to grow long, 34, 48 pubic, 166 Halakhah, 35, 82, 114–116, 195, 220, 228, 268 See also Rabbinic laws

318 

INDEX

Halakhic discourse, place of Scripture in, 302 Halakhic documents, 15 Halakhic principles, 43, 108, 112, 115, 117 Halakhic rulings, 137 Halakhic situation, 108 Hallah, see Dough offering Hannan bar Ba, R., 287 Harvest/harvesting, 22, 29, 40–42, 46, 50, 51, 102 Hasmonean(s), 5, 186, 187, 187n9, 190 Hauptman, Judith, 60n98, 183n3, 197–198n32, 224n15, 226n20, 227n21, 227n22, 228n23, 230n29, 232n32, 233n34, 233n37, 243, 261, 261n6, 263–264n11 Hayes, Christine, 270 Hazakah (acquisition), 109 Healing, 121, 167 Heavenly voice (bat kol), 137 Heavens, the, 37, 44, 68, 71, 94, 157 Heave offering (terumah), 37–39, 44, 75, 80, 81, 90 burning due to impurity of, 75, 82 Hebrew construct form (smikhut), 71n32 Hebrew verb in participial substantive form, 236 Heifer broken neck of (eglah arufah), 54 red (para adumah), 73, 142 Heirs, see Inheritance/inheritors Hellenistic, 185, 187 See also Greco-Roman Hellinger, Michael, 49 Herod, 5 Herodian, see Hasmonean(s) Heuristic, 4, 199, 228 Hezser, Catharine, 220n7, 221n9

Hierarchy/ranking, 100, 117, 122, 126–130, 203, 228 Hierophany, 67 High Court, see Sanhedrin High-grid thinking/analysis, 215, 221, 229 See also Grid-group theory; Mishnah, matrix analysis of High priest, 70, 100, 127, 135, 141, 152, 162, 163, 171, 175 See also Priest(s) Hillel, House of (Bet Hillel), 91, 101 Hisda, R. (The term “Hisda, R.” is not found in the text. Kindly suggest.) Historical circumstances, 15, 266 Historical documents, remembered, 145 Historical events, 93 Historical evidence, 14 Historical facts, 112, 113, 231 Historical/social processes, 186, 260 Historical/sociological/anthropological studies, 20–42, 223 Historical traditions, 13 Historiography/ historiographical, 12, 182 History, Jewish, 59, 65 Hitching animals to plow/wagon, 283 Hoe(s), 292, 296 See also Plow/plowing; tools Holidays carrying on, 131 mistakes/miscalculations in timing of, 139 practices on, 121, 141 sanctity of, 140 Holy/holiness, see Sacred/sacredness Holy of Holies, 68, 70–72, 76 Holy seed, 110–112 Holy Things (Kodashim-Mishnaic order/division), 20, 83, 86, 105, 144

 INDEX 

Homophonic-homosemantic markers, 83 Honey, 71 Horses, 281, 285–287, 297 See also Foals; Gelding Household/domestic economy, 149, 167 Households/householders, 8, 22, 31, 34, 35, 38, 40, 42, 43, 45, 50–52, 57, 58, 83, 149, 150, 152–154, 167, 172, 178, 179 Humankind, 207, 210, 252 Humiliation, 49, 174, 175 Huna, R., 286, 291 Husband(s) missing, 130 who die(s), 132, 163 Hutz la’aretz, 72, 73, 76–89, 93, 94 See also Diaspora; Eretz ha’amim; Medinat hayam Hvinden, Bjorn, 33 Hygiene, see Cleanliness I Ibn Daud, Abraham, 219n6 “Ideal type/typology” (Weberian concept), x, 123n3, 124–126, 144, 151 Identity, vii, xi, xii, xiii, 66, 67, 182, 192, 193, 202, 204, 217–257, 259–306 Idiots, 103 Idol(s), 87, 107, 161, 162, 289 Idol worship/idolatry, 100, 107, 161, 162, 289 Idol worshippers, 236n45 leasing a house to, 289 See also Non-Jews Ilai, R., 137, 138, 212 Immersion (in a ritual bath), 52 Immersion pool, see Ritual bath

319

Imposing order on the world, 93 Impure/impurity (tamei/tumah), 35, 67, 68, 73, 73n39, 73n40, 74–76, 84, 84n68, 93, 94, 105, 115, 135, 139, 165, 173 Inclusion, 69n25, 144, 145, 148, 156, 162, 179, 244 See also Insiders Inheritance/inheritors, 63, 105–109, 121, 123, 136, 143, 158, 160, 165, 167–171 of daughters in absence of sons, 135 In-laws, 115, 149, 160 Innocent blood, shedding of, 294 Insiders, 33, 35, 54, 55, 60, 116, 117 See also Inclusion Intermarriage, 155, 156, 161–165, 179 See also Marriages, inter-caste/ intergroup/inter-religious/ inter-tribal Intermediate days (hol ha’moed), 91 Interrogation, 174 Irrigation, 41, 41n48 Isaac (patriarch), 34, 48, 70 Isaac, Benjamin, 10n15 Isaac b. R. Mesharsheya, R., 289 Isaiah, Book of, 71, 160 Ishmael, R., 43, 52 Islam, see Muslims Isolation/segregation, 117, 169 Israel (ancient) cultural system of (The sub term “cultural system of” is not match with main term “Israel (ancient)”. Kindly suggest.) external control of, 194, 196 Jewish communities in, 191, 237n46, 260n3 Jewish institutions in, 8 Jewish life in, 6

320 

INDEX

Israel (ancient) (cont.) Jewish society/culture in; social and cultural constructs, 3, 4; social and cultural dissolution/ dislocation, 5; social and cultural dynamics/ landscape, 12 Jewish-Greek tensions, 6 Jews in, vi, vii, 65, 262 monarchy of, 189 (see also Kings) other competing groups in, 186 pagan practices of, 161 people of, 59, 64, 65, 77, 186 (see also Jewish People, the) political chaos in (The sub term “political chaos in” is not match with main term “Israel (ancient)”. Kindly suggest.) Roman, vi, 189–191 Roman (Hadrianic) persecutions in, 7 sacred economy of, 37, 59, 65 social disruption in, 144 social organization (The sub term “social organization” is not match with main term “Israel (ancient)”. Kindly suggest.) urbanization/cities/towns in, 88n77, 201 See also Israel, Land of; Judah (Land of), Kingdom of; Judea Israelites (non-priests/non-Levites among the Jews), 162 Israelite society, see Jewish society Israelites, see Jews Israel, Land in, 46, 65, 72, 75–78, 80, 81, 84, 87, 88, 88n77, 93 Israel, Land in, 71, 71n32, 72, 74n41, 76–78, 82–83, 85–88, 93 Israel, Land of agricultural laws of (mitzvot hateluyot ba’aretz), 65

boundaries of, 45, 63, 70 as central point of sacred space, 76 coastal plain of, 237n46 dispersal/dispersion/displacement of the population of, 141, 260 flowing with milk and honey, 71 fruits/produce of, 37, 39, 59, 80 holiness/sanctity of, 59, 64, 65, 71, 76–78, 93 as holy, 71 importance/centrality of, 84, 89 Jewish claim to/possession of, 63 Jewish conquest/settlement of legal knowledge/practices of, 237n46 as the Promised Land, 71 society in, xiii, 91, 94, 215, 260 See also Israel (ancient); Judah (Land of), Kingdom of; Judea J Jacob (patriarch), 34, 48, 70 Jacob ben Asher, 199n34, 231 Jaffee, Martin S., 37, 59, 199n35, 200n38, 203n44 Jerusalem destruction of, vi, 6, 7, 10, 16, 87, 88, 183n3, 211n51, 231, 260 (see also Temple in Jerusalem, destruction of) pilgrimage(s) to, 45n56 Jerusalem Talmud (Palestinian Talmud; Yerushalmi) composite essays in, 266, 269, 271, 279–301 compositions in, 268–279 Jerusalem Talmud by tractate Avodah Zarah, 279, 281, 285, 287, 291, 292 (The term “Avodah Zarah” occurs in both italics and non–italics style in the text.

 INDEX 

Kindly suggest the format to follow in the index.) Horayot, 91, 92n85, 99, 101, 127, 228 Jesus, vi, vii, 189 Jewelry, 168, 174 Jewish community/communities organization, 8 social history of, 185 Jewish family, preservation of, 88 Jewish law, see Halakhah Jewish Levantine society, see Mediterranean, Jewish communities of Jewish Patriarchate, 6, 7, 7n10, 260 Jewish People, the, 64, 164, 182n2 See also Israel (ancient), People of Jewish society impact of the destruction of the Jerusalem Temple on (The sub term “impact of the destruction of the Jerusalem Temple on” is not match with main term “Jewish society.” Kindly suggest.) institutionalized structures of, 215 social and historical reconstruction of, 16n21 threats to, 86 Jewish tradition, violation of, 178 Jews from birth, 108 as children of Abraham, 34, 48 daily life of, 8 non-Jewish influence on, 160 poor, 33, 39, 54–56 pregnant ass of (The sub term “pregnant ass of” is not match with main term “Jews.” Kindly suggest.) Jonah, R., 282 Jordan, see Transjordan (east bank of the Jordan)

321

Josephus, 10 Joshua (prophet), 130 Joshua ben Perahiah, 194 Joshua, Book of, 63, 100n16 Joshua (ben Hananiah), Rabbi, 131, 139, 140, 212 Josiah (king of Judah), 185, 188n15, 188n17 Judah (Land of) controlled by Persia, 185 Kingdom of (see also Israel (ancient); Israel, Land of; Judea) (The sub term “Kingdom of” is not match with main term “Judah (Land of)”. Kindly suggest.) Judah (ben Rabbi Ilai), Rabbi, 34, 43, 48, 100–102, 108, 183n3, 212, 238, 249, 261, 261n6, 281, 284, 285, 287, 296–299 Judah the Patriarch, Rabbi (also called Rabbi Judah ha-Nasi), 183n3, 261, 261n6, 266, 287, 297–299 Judaism authoritative texts/literature in, 184 development of, 124 ideological framework of, 8 institutions of, 8 in Israel/Palestine (The sub term “in Israel/Palestine” is not match with main term “Judaism.” Kindly suggest.) legal framework of, 8 liturgical-ritual framework of, 8 organizational framework of, 8 place of converts in, 95 Judaism (ancient), modern study of, 2 Judea, vi, 6 See also Israel (ancient); Israel, Land of; Judah (Land of), Kingdom of Judges/magistrates, 87, 90, 188, 189, 195

322 

INDEX

Judging, suitability for (The term “Judging, suitability for” is not found in the text. Kindly suggest.) Judicial proceedings/processes/ structures/systems, 11, 121, 199, 231 K Kahal, 103, 111, 164 See also Community; Congregation Kairouan, 8n13 Kalmin, Richard, 274n28, 275n30 Kal v’homer (a fortiori), 131, 132 Karo, Joseph, 199n34 Kefar Otnai, 249 Kehati, Pinhas, 31n23, 38n38, 40, 42n52, 45n55, 84n69, 88, 91n84, 92n85, 100n17, 101n19, 101n20, 104n28, 107n32, 115n38, 115n39, 116n40 Kerckhoff, Alan C., 98 Ketanah, 165 See also Maidens; Naarah; Tinoket Ketubah (marriage contract) adjudication of payment in absence of, 154 condition (contractual), 157 formulaic procedures of, 176 legitimation of (by the court) (The sub term “legitimation of (by the court)” is not match with main term “Ketubah (marriage contract)”. Kindly suggest.) payment of, 176 Kiddushin (sanctification of marriage), 72, 76, 82, 90, 91, 104, 153–157, 158n8, 161, 164, 165, 201 See also Erusin (betrothal ceremony); Marriage, process of; Nisuin (last part of marriage ceremony); Wedding

Kilayim (forbidden textile mixtures), see Clothes/clothing, forbidden textile mixtures in Kings, 185, 188 See also Israel (ancient), monarchy of Kings, Book of, 185, 185n6, 188n15, 188n17 Kin, resources and values among, 149 Kinship, 20, 119, 121, 143, 147–180 Kinship group, 153n5, 158, 180 Kinship interests, 179 Kinship obligations, 149, 157 Kinship rules, 160 Knowledge antecedent, 204, 208, 220, 264 control of, 123 inheritance of, 136 Kohen gadol, see High priest Kohen, see Priest(s) (kohen/kohanim) Korah, 135n15 kuppah, see communal/charitable institutions/public funds kutit/kutim, see Samaritan(s) L Labor, 166, 167, 170, 283 division of, 189n18 See also Occupations; Professions; Work Lamb (example of clean species; used for redemption of firstborn), 210 Landowners, 33, 36, 38, 39, 41, 42, 45, 51, 57, 102, 186n7 taxes from, 121 Landownership (The term “Landownership” is not found in the text. Kindly suggest.) Land/resources, access to, 32n25, 116 Law, application/enforcement of the, 242 Leadership qualities, 125

 INDEX 

“Learneds,” see Scholars (ancient) Leazar, R., 282 Legal apparatus, 126 Legal decisions, 129 Legal-historical, 241 Legal precedents, 137 Legal status, 108 Legal terms, 13 Leket (gleanings from fields), 29, 30, 37, 42n52, 46, 102, 103 Lepers, 69 Lessee, 289, 290 See also Animals, sale/leasing of Levant, see Mediterranean, Eastern Levine, Lee I., 262n6 Levir, 104, 166, 168 Levi, see Levites Levites gifts to the, 22 (see also Matanot kehunah (gifts to the priests)) redemption of animals from, 251 Leviticus, Book of, 29, 56n86, 99n13, 103, 105, 115, 140, 142, 143, 271 Libanius, 191 Libations, 109 Life course, 116, 147–180 Lifestyle(s), 52, 99 Lightstone, J.N., v, vii, xi, xii, xiii, xiv, 60n99, 82, 95, 146n19, 192n22, 209n50, 262n7, 280n36, 281n37, 281n38, 287n39 Lineage/line blemished, 110, 111 family, 90, 158 of tradition/opinion, 212 Literacy, 99–102 See also Education; Teachers Literary-critical, 2, 182 Literary-cultural, 245 Literary evidence (other than from Mishnah), 14

323

Literary-historical, 226, 228, 232, 233n37, 234, 241, 243, 244, 246, 253n66, 269n22, 270n22 relationship between Mishnah and Tosefta, 223n14, 263n11 Literary-rhetorical, 17, 182, 197, 210–213, 217–306 Lod, 237 Loewenberg, Frank M., 46, 54 Logic/logical, 4, 16, 17, 67, 131, 132, 144, 195, 204, 221, 251, 253, 269n21, 272 Low, Martina, 66 Lulav, 140, 142, 143 M Maaser ani, see Tithe/tithing Maidens, 112, 113, 115 See also Ketanah; Naarah; Tinoket Maimonides, 29, 29n17, 101n20, 104n28, 199n34, 231, 302, 302n43 Male line, preservation of, 158 Mamzer(et) (children of prohibited marriages), 100, 101, 110, 111, 127, 161, 163, 163n12, 171 Mandelbaum, Irving, 92 Maneh (currency among Jews in Roman-era Israel), 34, 48 Marginal communities, 127 Marginality/marginal situation, 95–117 See also Exclusion(s) Marginal man/marginal person, 95–117 See also Outsiders Marginal women, 170 Marital choices, 157, 164 Marital dissolution, 155, 179 money for wife upon, 154 See also Divorce; Marriage, annulment of

324 

INDEX

Marital obligations/rights, 167–170 Marital restrictions, 162 Mark, 223, 233, 263 See also Gospels, the; Matthew; Proto-Mark Maror, 137 Marriage age of, 164 (see also maturity) annulment of, 154, 156 (see also Marital dissolution) arranged, 164, 165, 170 biblical restrictions on/prohibitions of, 156, 161 blemishes in, 169 consent for, 153, 157, 176, 179 as “fated,” 157 as financial contract, 154 intention in, 157, 158 levirate (see Yibum (levirate marriage)) process of, 153 (see also Erusin (betrothal ceremony); Kiddushin (sanctification of marriage); Nisuin (last part of marriage ceremony); Wedding) as sacred, 157 sexual activity as ideal within, 156 theological significance of, 157 trust in (or lack thereof), 169 Marriage contract, see Ketubah (marriage contract) Marriage market, demographic constraints in the, 153n6 Marriages, inter-caste/intergroup/ inter-religious/inter-tribal, 148, 162–164 See also Intermarriage Married couple(s), 160, 161, 179 Master-disciple circles, see Rabbinic discipleship Matanot aniyim (gifts to the poor), 28, 29n17, 32, 36, 37, 39, 42, 42n52, 46, 57–60, 61n104, 65 See also Almsgiving

Matanot kehuna (gifts to the priests), 38n39, 59, 65 Material/monetary exchanges between families (before marriage), 153 Matthew, 233n37 See also Gospels, the; Mark Maturity, 103, 107, 156, 157, 164–166, 170, 176 See also Marriage, age of Mauss, Marcel, 36, 56, 58 Meals, 30, 32, 32n26, 33, 54, 55, 57, 83, 153, 167, 177 Medieval scribes/scholars/rabbinic codes, 201, 236n45 Medinat hayam, 73, 88–94, 237n46 as preceded by Hebrew terms for going or coming (The sub term “as preceded by Hebrew terms for going or coming” is not match with main term “Medinat hayam”. Kindly suggest.) See also Diaspora; Eretz ha’amim; Hutz la’aretz Mediterranean Eastern, 185, 189–192, 237n46 economy, 59, 65 Jewish communities of, vii, 7, 8, 191 province(s), 237, 237n46, 238–241 Megillat Esther, 28n16 Megillat Ta’anit, 11n16 Meir, R., 41–43, 238, 240 Mekah ta’ut (business arrangement made in error), 154 Mekhilta(s) (Exodus), 254 See also Midrash, halakhic/legal Men/males firstborn (bekhor), 207, 210 impotent, 173 roles of, 149 Men of the Great Assembly, 130, 136 Menstruation/menstruating women, 69, 87

 INDEX 

Methodological issues/challenges, ix, 3, 12–20, 219n5, 220 Methodology, 96, 182, 183, 216, 218, 227, 230n27 Middle East, vi, vii, 6–8, 185, 188, 189, 216, 306n45 Midrash halakhic/legal, 195, 227n22 (see also Sifra (Leviticus); Sifre (Numbers Deuteronomy); Tosefta, halakhic-midrashic constructs in; Zutta) Tannaitic, 112 See also Exegesis/exegetical Milk, 71, 283 Millstones, horses being hitched to, 286, 287 Minority group/status, 121, 122, 144 Minors, 103, 107, 107n32, 144, 151, 156, 157, 161, 164, 165, 168, 199n34, 293 sexual activity of, 156 See also Children “Minor tractates,” 199n34 Miscarriage (of an embryo), 109 Mishnah (mishnayot) adducing authorities in, 212 adducing beraitot in the service of, 226 adducing evidence for, 226 agenda of, 220 alternative rulings in, vii, 214 (see also Mishnah (mishnayot), rulings in) analysis of, xii, 12, 27n11, 215, 225, 250, 254, 267n16, 277 analytic categories of, xii, 20 attribution to authorities/individual personalities in, 14, 49–56, 213, 256, 305 as authoritative text/document, 2, 4, 184, 301 authors of, 13, 22

325

axioms in, 202 biblically grounded rules in, 209 canonization of, 141 categorizing things in (see Mishnah (mishnayot), taxonomy in) chapters in, 17, 75, 96, 202, 204, 227n21, 229, 232, 232n33, 233, 234n38, 235, 236, 244, 254, 255, 303 circumstance(s) in, 209, 212, 247 coherent system of, 64 commentaries and commentators on, 31n23, 39n42, 101 compassion in, 38, 106 concatenation/permutation of terms in, 214 conceptual model of layout of cities/towns in, 201 conceptual patterns in, 82 the concrete/specific in, 204, 205 content(s) of, 227n21 coverage/treatment of grand theme subject matters in, 199, 202 critical analysis of, 246, 254, 303 criticism of, 2n3, 242, 246 debate form in, 214 (see also Debates) declarative sentence(s) in, 205, 244, 245 discussion in (see Mishnaic discussion(s)) dispute form in, 181–182n1, 211, 211n51, 212 (see also Disputes) editors of (see Mishnah, authors of) evidence of, v, viii, x, xi, xii, 1–23, 143, 181, 181n1, 198n33, 217–222 exhaustiveness of (with regard to subtopics), 199 family issues in, 150, 151 “fill in the blank” system of, 83 (see also Mishnah (mishnayot), linking of items through formulae in)

326 

INDEX

Mishnah (mishnayot) (cont.) formularies in, 279n34 as foundational document of rabbinic Judaism, vii, 147 (see also Mishnah (mishnayot), rabbinic Judaism emerging in) framers of, viii, xiii, 13, 201, 202, 226 as homogeneous document (or not), 180 the hypothetical/theoretical in, 14, 71, 138, 204, 220, 305 idealized/imagined/utopian world of, 22, 122, 125, 136, 151, 163, 200, 202, 275, 276; geography of, 202 inferences in, 131, 158 information relevant to, 241 joining language in, 17, 245 knowledge transfer in study of, 220 lack of clear enforcement in, 136 as law code (see Mishnah (mishnayot), legal aspects of (in general)) legal aspects of (in general), 165 legal content of, xiii, 16, 199 as legal document (see Mishnah (mishnayot), legal aspects of) legal positions in, 15, 17, 213, 243 legal principles in, 199, 267n16 legal traditions in, 301 linking of items through formulae in, 83 (see also Mishnah (mishnayot), “fill in the blank” system of) as literary creation, 183 literary evidence of, 14 literary-rhetorical traits of; macro, 199–205, 219, 232; micro, 205, 206, 208, 209, 211, 213, 214, 218, 219, 245 literary style/traits, 12–20, 69n27, 202, 205, 207n48, 229, 244

locative system of, 93 logical-analytical approach/process of, 195, 301 mastery of, 11, 184, 192, 208, 220 matrix analysis of, 214, 221 (see also Grid-group theory; High-grid thinking/analysis) memorization of, 196 mentorship/co-mentoring in study of, 182 minutia in, 199 morphological/word/phrase repetition in, 245 named authorities in, 14, 213, 305 non-legal sections of, 267 novice readers of (see Mishnah (mishnayot), readers/users/ readership of) opinions/views in, 151, 250 oral sources of, 14, 192n23 oral tradition of, 121, 134 oral transmission of, 131, 193n23, 207n48 orders/divisions of, 29, 36, 146, 150, 150n3 passages in, 209, 212, 227n21, 230n29 political orientation of, 122 and politics, 119, 124 postulates in, 204 premises in/about, 193n23, 204 production of, 14–16, 21, 213, 261, 261n6 promulgation of, vii, 19, 183n3, 184, 191, 192, 199, 203, 207, 217–257, 265, 267, 301 rabbinic Judaism emerging in, 147 (see also Mishnah (mishnayot), as foundational document of rabbinic Judaism) readers/users/readership of, 207, 235, 255

 INDEX 

redactors of (see Mishnah (mishnayot), authors of) refashioning/reformulation of language for, 17, 181n1 religious/rabbinic authority in, 59, 120, 122, 124–126, 130, 133, 137, 146, 195n27 repetition of lexical terms/ opposites in, 245 as repository, 13, 14 rhetoric of/rhetorical traits of, 12, 83, 92n86, 192, 205, 206, 208, 218, 264 as ritual guidelines (or not), 145 rulings in, 17, 19, 211, 212, 214, 267n16, 304 (see also Mishnah (mishnayot), alternative rulings in) sequencing of, 16n22 slightly differentiated cases/ circumstances in, 143, 210 social context of, 207 sociology of, 116n41 source criticism of, 246, 305 structure of, 36n34 substantive traits of, 4 supplementary materials for, 199 as systematic document, 203n44 system of, 130n12 taxonomy in, 256 text of, 96, 124, 168, 178, 192n23, 207 thematization of, 20 theoretical framework of, 130n12 theory/conception of family themes in, 130, 180 topical organization/agenda of, 220, 243, 254 Tosefta’s dependency upon, 232 tractates in, xii, 16, 30, 41, 55, 71, 73, 74, 76, 82, 84, 88, 101, 104, 107, 109, 111–113, 116,

327

121n2, 123, 129n8, 129n11, 130, 133, 140, 141, 145, 150, 150n3, 194, 201, 205, 219, 226, 231, 232n33, 263, 271 tradition-historical analysis of/ approach to, xi, 27, 60, 181, 195, 250, 256 transition of authority in, 144 translator(s) of, 205, 235 as “unstuck,” 200, 202 world of; centrality of Temple in Jerusalem in, viii, 147n1; as integrative (“whole”) religio-­ cultural system, 200; as patriarchal, 153, 155 written form of, 120, 122 written sources of, 14, 121, 122, 134, 135 see also Proto-Mishnah Mishnah by tractate Arakhin, 129n8 Avodah Zarah, 279, 281, 285, 287, 291 Avot; compilation of, 197; as distinct document from Mishnah, 194; insertion in Mishnah of, 194; as wisdom literature, 194 Bava Batra, 109, 160 Bava Kama, 34, 48, 108, 109 Bava Metzia, 46, 106 Beitzah, 140 Bekhorot, 17, 83, 105, 159, 205–210, 215, 235, 236, 251 Berakhot, 48n70, 123, 136n16, 137n17, 197n31, 201 Bikkurim, 111, 113 Demai, 58, 78, 79, 107 Eduyot, 91, 91n84, 101, 114, 133, 134, 139, 141, 146n19, 151, 161 Eruvin, 137, 200, 201

328 

INDEX

Mishnah by tractate (cont.) Gittin, 50, 55, 56, 56n87, 86, 88–91, 103, 103n27, 104, 128, 134n14, 150n3, 153, 154, 161, 175–177, 201, 202n41, 236, 237n46, 238, 240, 241, 248–250 Hallah, 77, 78, 78n51, 103, 178 Horayot, 49n74, 91, 92n85, 99, 101, 127, 228 Hullin, 83, 85, 103, 103n26, 146 Kelim, 31n23, 51, 69, 71, 72 Keritot, 102 Ketubot, 90, 107, 112, 114, 152–156, 165–173, 177, 178 Kiddushin, 72, 76, 82, 90, 91, 104, 153–157, 158n8, 161, 164, 165, 201 Kilayim, 82, 91 Maaserot, 37, 38, 81 Ma’aser Sheni, 37, 44, 45, 45n56, 84n70, 113, 114 Makkot, 87 Megillah, 141, 146n18 Menahot, 83, 146, 146n18, 203 Mikvaot, 52, 87 Moed Kattan, 91, 164 Nazir, 73, 74, 130 Nedarim, 52, 172, 173 Negaim, 105 Niddah, 100, 165, 166, 166n14 Ohalot, 73, 74, 84, 91 Orlah, 72, 77n48, 81, 82 Parah, 84, 142 Peah, 29–32, 32n27, 33, 35–42, 46, 48–51, 53, 55, 57, 58, 102, 103 Pesahim, 34, 55, 101, 141 Rosh Hashanah, 139, 140, 142 Sanhedrin, 87, 128, 129n10, 129n11, 146n18, 160

Shabbat, 31n33, 34, 48n70, 52, 54, 58, 75n44, 135, 143, 152, 201, 286, 289 Shekalim, 47, 48, 58, 91, 109, 115, 116, 116n40 Sheviit, 50, 55, 79, 80, 106 Sotah, 54, 151, 153n5, 157, 162, 173–176 Sukkah, 142 Temurah, 85, 86 Terumot, 37, 37n37, 39, 79n53, 80, 80n58 Tohorot, 58 Yadayim, 43, 46n60, 84 Yevamot, 90, 90n82, 91, 104, 109, 111, 113, 130, 132, 138, 153, 157, 158, 158n8, 159, 160, 162, 163, 163n12, 164–166, 170 Yoma, 127, 152, 200 Zavim, 69, 104, 115 Mishnah students, xii, 199, 204, 207n48, 214, 220, 221, 236, 241, 242, 246, 247, 250, 254, 256, 303–305 resources of, 198 Mishnah study advanced taxonomic thinking in, 304 (see also Mishnah (mishnayot), matrix analysis of) Amoraic shared tradition of, 226, 275, 277, 278, 301, 303 analytical skills in, 234 with associate/partner, 59 as equivalent to Torah study, 194 intellectual/analytic engagement in, 209, 214 knowledge acquisition in (whether or not “gemara-ic”-ly), 208 knowledge gap in (whether or not “gemara-ic”-ly), 207, 303 modelling of skills in, 305

 INDEX 

as normative activity of early rabbis, 225 normative definition of gemara in context of, 302 novice in, 207, 234, 235, 268n19 primacy of, 192, 196, 203, 229 skills/expertise in, ix, 229, 305 socio-cultural impact/meaning of, 193, 214 “talmudic-ly,” 259–306 use of sources in, viii, x, 2, 21, 23 use of Tosefta to aid in, 276 See also Rabbinic learning/education Mishnah subtopics, 199, 202, 231, 243, 254 Mishnah translation interpolation in, 235 square brackets for interpolation in, 205 Mishnaic community as a scholarly elite, 204 of scholarship, 205 Mishnaic context(s), 160 Mishnaic discussion(s), 129, 144, 157 Mishnaic language/style as formalized, 19 as laconic, 205, 207n48, 211, 214, 220, 236 Mishnaic law evolution of, 242 historical criticism of, 242 Mishnaic system of marital selection, 156 Mishneh Torah (by Maimonides), 199n34, 302, 302n43 Mitzvah (mitzvot), see Religious obligation(s) Mixed seeds, 72, 77n48 Moab/Moabite(s), 43–45, 45n55, 84, 85, 161 Modern academic circles, 3

329

Money, 30, 31, 31n24, 32, 47, 53, 107, 112, 115, 132, 139, 140, 154, 158, 166, 167, 170–172, 176, 177 See also Currency Monotheism, 186 Moral/ethical, 38, 39, 41, 72n34, 130, 136, 137, 176 Moses (Biblical leader), 44, 63, 70, 130, 131, 135, 140 Torah of, 185, 185n6, 186–188 Mother, 106, 111, 113, 152, 155, 158–160, 165, 166, 168, 170, 171 Mother-in-law, 159 Mourning, house of, 169 Multiple wives, 155, 158 See also Polygamy Muslims, 7, 216, 236n45 “My Lord/Master,” as honorific translation of “Rabbi,” 212 N Naarah, 112, 165, 172, 173 See also Ketanah; Maidens; Tinoket Naarah meoreset (engaged girl), 172 Nadab and Abihu (two of Aaron’s sons), 140 Nahman (b. Jacob), R., 294, 296 Nathan, R., 286 Nationality, see Ethnicity/ ethnic groups Nazir/nezirah (nazirite) Needy, the, 25, 25n1, 26–28, 32–36, 38, 39, 39n41, 40–43, 45–47, 49–52, 56–58, 60 See also Evyon; Poor, the Nehemiah (late biblical figure), 185, 186, 186n7, 191 See also Ezra (the Scribe)

330 

INDEX

Nehemiah, Book of, see Ezra-­ Nehemiah, Book(s) of Netin(ah), 100, 100n16, 101, 110, 127, 161, 163, 165, 171 (The term “Netin(ah)” occurs in both italics and non–italics style in the text. Kindly suggest the format to follow in the index.) Neusner, Jacob, 7n9, 16, 16n20–22, 17, 19, 30n20, 32n27, 59, 60n98, 69n26, 84n67, 95, 96, 96n2, 96n3, 102n22, 124, 183n2, 183n3, 195, 196n29, 197n31, 197n32, 198n33, 200, 205n45, 211n51, 223n14, 227n21, 227n22, 228, 229n26, 230n29, 231n31, 232n33, 233–234n38, 233n34, 241, 241n50, 243, 243n52, 243n53, 244n56, 253n66, 254, 254n67, 263–264n11, 267n16, 269n21, 270, 270n23, 303 Newman, Louis E., 80 New moon/month (Rosh Hodesh), 139 New Testament, 223n14, 263n11 Nezirut, 73 Nisuin (last part of marriage ceremony), 153, 156, 162, 166, 169, 170, 173 See also Erusin (betrothal ceremony); kiddushin (sanctification of marriage); Marriage, process of; Wedding Nithai the Arbelite, 194 Nomes/toparchies (Ptolemaic administrative units in Egypt and the Land of Israel), 189, 190 Non-Jews partnership with, (The sub term “partnership with” is not match with main term “Non–Jews.” Kindly suggest.)

poor, 132 pregnant ass of, (The sub term “pregnant ass of” is not match with main term “Non–Jews.” Kindly suggest.) purchasing a fetus of ass of, (The sub term “purchasing a fetus of ass of” is not match with main term “Non–Jews.” Kindly suggest.) selling a plowed field to, 291 See also Idol worshippers Non-priests, 156, 162 Non-space, 66, 67, 93 Normative, vii, viii, xi, xii, 13, 36, 119, 132, 138, 156, 161, 188, 197–198, 201, 216, 225, 248, 253, 266, 267n18, 273n27, 274, 274n29, 300, 302, 305 North Africa, 6, 9n13 Noun, 236 Numbers, Book of, 63, 73, 77, 79n53, 81n60, 99n12, 103n25, 114, 271 Numeracy, 188n17 Nutrition, see Lifestyle(s) O Oaths, see Vows Obligations, system of, 59, 66, 94 Observation(s), 21, 125, 192n23, 199n34, 199n35, 202, 214, 225–227, 230, 233n38, 234, 243n53, 247, 254–257, 267n16, 273, 274, 299–306 Occupational class/niche/groups, 121, 185–189, 191, 192 Occupations, 16, 26, 97, 169, 190 See also Labor; Professions; Work Oil (e.g. olive oil), 79, 80, 283 Omer offering (The term “Omer offering” is not found in the text. Kindly suggest.)

 INDEX 

Orchard, 41, 50, 82, 82n64 Orlah, 72, 77n48, 81, 82 Orphans/foundlings, 28, 31n24, 99, 108, 110, 163, 168, 170 Outsiders, 33, 55, 97, 116, 156, 179 See also Marginal man/ marginal person Ownerless (hefker), 44, 108, 109, 164 Oxen, 108, 281, 299 fattened, 297–299 P Paganism, see Idol(s); Idol worship/ idolatry Palestine/Palestinian, see Israel (ancient) Palestinian Talmud, see Jerusalem Talmud (Palestinian Talmud; Yerushalmi) Pappa, R., 295 Parables See also Stories Parables, 36, 52 Parenthood/parenting, 148, 149 Parents, 22, 149, 164, 178 Park, Robert, 97, 97n8 Parturition (childbirth), 114 Party (celebration), 42, 133, 135, 167, 169, 176, 202n41, 214, 277, 278 Passover (holiday), 34, 91, 101, 102, 135, 140–142 Passover seder, 35, 55, 137 Paternal/maternal relationships, 160 Pauper, see Needy, the Peace, 128, 132, 140 interest of (mipnei darkhei shalom), 50, 55, 56 Peah (corner of the field), 29–33, 35–42, 46, 48–51, 53, 55, 57, 58, 102, 103 equal access to, 40

331

Penalty, 79, 108, 128, 143, 156, 175 Pentateuch, the (Humash; first division of Scripture), 71, 201, 202 Pericope(s) Mishnaic, 58, 205, 248 Toseftan, 58, 248 Permitted, 18, 32, 43, 47, 52, 53, 80, 82, 87, 103n27, 107, 110, 111, 140, 156, 163, 174, 206, 235, 236, 251, 252, 281–283, 285, 289–292, 295, 298 Persian, 294, 296 Persian Empire (Imperial), 186, 189, 189n18 See also Babylonia(Mesopotamia); Persian Petra, see Rekem Pharisees, 15, 189, 260 Philological/stemmatic, ix, x, 21n2, 218 Philosophical texts, 10 Philosophy, 183n2, 302n43 Physiological, 31n22, 165 Places inhabitable, 75 private, 140, 169 public, 140 See also Space/spatial Plow/plowing, 41n48, 283, 292 See also Field(s), plowed; Tools Political and religious conditions/ circumstances, 120 Political authority charismatic, 125 professional/legal, 125 traditional, 125 Political center, internal, 120 Political control, external, 120 Political institutions, secular, 122 Political power, 120, 130 Political system, 119, 122 Politics, 119, 124, 186 external contexts, 120

332 

INDEX

Polygamy, 153n6 See also Multiple wives Poor person, pledge of a, 47 Poorofferings, 31n24, 32n26 Poor, the aggressiveness by, 50 (see also Violence/conflict) allocations to, 57, 60 assistance for, 46 care for, 28, 58 character/personality traits of, 49–56 chronically, 36n34, 48 dignity of, 48, 49 empathy for, 36n34 formerly wealthy, 47n64, 48n70, 49 gifts to (see Matanot aniyim (gifts to the poor)) intellectually gifted among, 189 rights of, 38n38 sacrifices by, 138 sustenance for the, 45, 50, 53 See also Ani; Needy, the Porton, Gary G., 95, 96, 96n2, 96n3, 99, 100, 112n36 Post-Amoraic, 273, 273n27, 274, 275n30, 300 Post-Mishnaic, 12, 14, 183n3, 193n23, 197, 203n44, 207, 222–226, 227n22, 228n25, 272 Post-Mishnaic compilations, 197 See also Talmuds, the two Post-Temple community, 145 Poverty definition of (The sub term “definition of” is not match with main term “Poverty.” Kindly suggest.) economic aspects of, 28 social aspects of (The sub term “social aspects of” is not match with main term “Poverty.” Kindly suggest.)

Power politics, 186 Prayer institutions, see Synagogue(s) Prayers, 11, 17, 123, 136n16, 146, 146n18, 231 Precedence, social (The term “Precedence, social” is not found in the text. Kindly suggest.) Precedent stories, 245–247, 250, 278 Pre-Mishnaic, 14, 17, 121, 125–127, 227n22, 303 Priest(s) (kohen/kohanim) authority of the, 129, 137, 142 blemished/impaired, 110 daughter of, 154, 162 gifts to (see Matanot kehunah (gifts to the priests)) legitimacy of, 144 redemption of firstborn sons from, 252 religious traditions/practices of, 121, 123 role(s) of, 123, 124, 128, 129, 135, 144 symbolic deference to past status of, 129 wife of, 152, 162, 174, 175 See also High priest Priesthood, 35, 59, 65, 71, 78n51, 92, 110, 111, 121, 179, 231 hereditary/inherited position of, 131, 136 Priestly culture (at the time of the Temple), 87 Primus, Charles, 69n25, 78 Prisoners, restraint instruments for (e.g. blocks, leg irons, iron bars), 293 Private acts, 178 Private sphere, the, 153 Probative, 14, 245, 304 Procreation, see Reproduction

 INDEX 

Produce forbidden, 79 importing/exporting, 80 Profane, 59, 67–69, 75, 76, 76n45, 78, 80, 81, 87, 88, 93, 94 Professions, 60 See also Labor; Occupations; Work Propagandistic purposes, 10 Property acquisition of, 169 produce from, 170 sale of, 170 Prophecy, 23, 122 Prophets, 44, 120, 121, 135, 143, 186n8 false, 188 Prophets, the (middle division of Scripture), 125, 130, 131, 135, 186 Protasis/protases, see Case, hypothetical Proto-Mark, 223n14, 233n37, 263n11 See also Mark Proto-Mishnah, 184n3, 227n22 Proto-rabbinic figures, 183n3, 211n51 Proto-Tosefta, 225, 263–264n11 Proverbs, Book of, 38n38 Psalms, Book of, 44 Ptolemaic/Ptolemies administrative districts/units, 190 (see also Nomes/toparchies (Ptolemaic administrative units in Egypt and the Land of Israel)) administrative system/ organizational structure, 189, 190 military/political/administrative leadership, 190 miltary/political/administrative leadership (see also Archons

333

(Ptolemaic administrative figures)) society, 190 Public domain, carrying on Sabbath in (or from private domain to), 143 Public offering, 101 Public sphere, the control/authority in, 119 women’s interactions in, 153n5 Pure/purity (tahor/tahara), 12, 35, 38, 57, 68, 70, 74, 75, 83, 84, 84n70, 87–90, 94, 98, 126, 139, 144, 162, 199, 231 laws of, 11, 52, 69n27, 72, 76, 77, 105 Purification rites, 11, 70, 121, 142 Purim, 28n16, 141 Purities (Tohorot-Mishnaic order/ division), 58 Q 4QMMT (part of the Dead Sea Scrolls), 15, 16 See also Qumran Queen Helena (of Adiabene), 74 Question(s), vi, viii, ix, x, xiv, 3–5, 8n13, 9, 17–20, 27n13, 69n27, 82, 94, 119–121, 122n123, 124, 129, 131–134, 136, 139–142, 146n19, 148, 150, 151, 155, 160, 162–164, 169, 176, 177, 182, 192, 192n23, 197, 199n35, 203, 207, 209, 217–230, 236, 242, 244, 255, 259–267, 269–270n22, 269n21, 272–274, 274n29, 275, 276, 276n31, 277, 277n32, 278, 279n34, 280, 299–301, 303–305 Qumran, 15 See also 4QMMT (part of the Dead Sea Scrolls)

334 

INDEX

R Rabbah, 291, 292, 294 Rabbah bar Avuha, 294, 296 Rabbinic authority/authorities as preservers/interpreters of Judaism, 122 structure, 137 Rabbinic circles, xi, xii, 11, 218, 223–225, 228, 262n7, 266, 267, 268n19, 268n20, 271, 273n27, 274n29, 301, 305, 306, 306n45 legal thinking in, 16 Rabbinic curriculum, 12, 263, 267 Rabbinic decision-making, 141 Rabbinic disagreements majority opinion in, 133 minority opinion in, 133 Rabbinic discipleship, 194 Rabbinic disputes, see Disputes Rabbinic ethos, 194, 229, 242, 255 Rabbinic institutions, evolution of, 221n9 Rabbinic Judaism, traditional reform/modernization of, 2n2 Rabbinic knowledge, 100, 117 Rabbinic laws, 34, 35, 39, 74, 82, 100, 104, 195 emendations to (takkanot), 129n9 See also Halakhah Rabbinic learning/education, 195 other than Mishnah, 195 See also Mishnah study Rabbinic legal texts, x, xiii, 199n34 Rabbinic local power, 129 Rabbinic master(s), 194, 195, 248, 272 Rabbinic power outside the community, 137 Rabbinic rules/teachings/ interpretations, 34, 88, 101, 194, 196, 302n44 violation/transgression of, 128

Rabbinic social structure/aspect, 94 Rabbinic sources/orpus/ compositions, 64, 96, 195, 214, 219, 261n5 Rabbinic traditions, 131, 142, 197, 197n30, 211n51, 224, 228, 302n44, vin1 authentication of, 123 Rabbis, the as agents of God, 122 Babylonian, 11, 261n5, 270 diversity/disagreement among, 12 as legal and religious authorities, 7 legitimacy of, 123, 129, 144 Palestinian, 22, 261n5 peer support of, 137 sons of, 136 Rami b. R. Yiva, 289 Rape, 165 Rav, 194, 282, 287, 288, 290, 291, 295, 298 Ravanin, 285 Ravina II, 273n27 Ravnin, 283, 285 Reasoning, 44, 132, 202, 256, 277, 304 Reciprocity between God and Israel, 59, 66 Recollections/reconstructions, 16, 133, 137, 141, 227n22, 250, 305 Rekem, 100, 101, 237n47, 237n48, 238 Relationship between Rabbis and Patriarch, 261n6 religious and secular norms/ regulations, 121 women and men, 167 Religious authority adherence/obedience to, 125, 130 consensus in, 130 legitimacy of, 125, 126, 131–133, 135

 INDEX 

Religious community, 2n2 Religious life, 91, 120 Religious obligation(s) (mitzvah/mitzvot) fulfillment of, 54 observance/performance of, 46, 72 rabbinic interpretations of, (see also Scripture (Bible; Tanakh), rabbinical interpretations of) (The sub term “rabbinic interpretations of” is not match with main term “Religious obligation(s) (mitzvah/mitzvot)”. Kindly suggest.) ritual requirement of, 116 transgression/violation of (The sub term “transgression/violation of” is not match with main term “Religious obligation(s) (mitzvah/mitzvot)”. Kindly suggest.) Religious responsibilities, 136 Religious ritual(s), 120–122, 129, 141, 149, 152 legislation involving, 128 Religious texts, 10, 146 Remarriage, 152, 159 Repentance, 294 Reproduction, 149, 155, 157–161, 176 Reproduction, 156, 160 Reproductive norms, see Family size Resh Lakish, see Simeon ben Lakish, Rabbi Resident alien (ger toshav), see Ger (proselyte) Retainers/retainership, 7, 188–191, 216, 257, 261 See also Civil servants Ritual bath, 52 Ritual, expressions of, 120

335

Ritual observance(s)/act(s), 103, 133 Ritual practice(s), 102, 141, 149 Ritual process, 102, 102n21, 116 Robberies/hold-ups, 90, 295 See also Bandit(s) Roman mile, 281 Romans/Roman Empire, 191 Rome, vi, 190, 260n3 Rubenstein, Jeffrey L., 193, 207n49, 221n9, 271n23 Rules, changes/modifications in, 145 S Sabbath carrying on, 137, 142, 143 labor on, 283 laws of, 11, 22, 34 restrictions/prohibitions on, 22, 201, 287, 298 transgressions/violations of, 34, 46, 54, 55, 135 Sabbatical year, see Shemitah Sacerdotal ritual, see Priest(s) (kohen/kohanim), religious traditions/practices of Sacred/sacredness, 37, 59, 64–72, 76–82, 87, 88, 92–94, 157, 176 Sacrifice as penalty for transgression, see Sin offering Sacrifices/sacrificial practice animals designated for, 91 (see also Sacrificial animals/birds, price of) laws of eating, 102 prayers and study being equivalent of, 146, 146n18 Sacrificial animals/birds, price of, 138 Safrai, Shmuel, 38, 40, 41, 42n52, 47, 51, 53, 78n52, 83 Safrai, Zev, 47, 78n52, 83

336 

INDEX

Sages, the (Hazal), 16n21, 100, 134, 188–192, 194, 211 See also Sapiential; Scholars (ancient) Sale, see Business Samaritan(s), 248, 249, 292–294 Samuel (Amoraic figure), 298 Sanctification, 58, 64, 68, 80, 81, 106, 179, 210, 289 Sanctity, state of, 109, 114 Sanhedrin, 87, 129n10, 129n11, 146n18, 160 Sapiential, 188, 191, 192, 216 See also Sages, the (Hazal); Scholars (ancient) Sarason, Richard S., 65, 70, 93 Schiffman, L.H., 100 Scholars (ancient), 119–146 See also Sages, the (Hazal); Sapiential Schools, ix, 136, 136n16, 140, 187 philosophical, 191 See also Yeshivot (rabbinic academies; in singular, yeshiva) Schwartz, Seth, 5, 6, 6n6, 7n10, 12, 260n3 Schweid, Eliezer, 64 Scribal-administrative, 7, 192, 192n2 Scribes (Isrealite), 187–191, 200, 236n45 as mythologized, 189 Scribes (Ptolemic), 189 Scripture (Bible; Tanakh) authority of, 219 as basis for halakhic Midrash, 203n44 as basis of Mishnah, 99 legal subjects in, 271 Mishnah’s dependency upon, 28n15, 203, 203n44 (see also Biblical law, Mishnah’s dependency upon) premises in/about, 204

public reading of the, 197n30 rabbinical interpretations of, 79 rulings, 37 study of, 196, 203, 302n44 world of/in, 231 Sectarianism, pre-destruction Jewish, 260 Secular authorities, 137 Seeds (Zeraim-Mishnaic order/ division), 59, 61, 77–82, 91 Sela (currency among Jews in Roman-­era Israel), 30, 34, 48, 53, 114 Seleucid(s), 186, 190 Semen, 105 Seminaries, see Schools; Yeshivot (rabbinic academies; in singular, yeshiva) Semites, ancient, 57–58 Servants/maids, see Slaves Sexual access, 153, 158, 167 Sexual intercourse, 154, 156–158, 179 Sexual relations, 139, 167, 173 outside marriage, 121 (see also Adultery) Shamai, House of (Bet Shamai), 39, 91, 101, 131–136, 138–141, 160, 177, 183n3, 291 Shaphan the Scribe, 188n15, 188n17 Sharecropping, 32 Shearing, 282 Shekel/half-shekel (ancient Israelite currency), 112, 115, 116 Shemaiah (shmaya), 133 Shema Yisrael prayer/declaration of faith, 17, 123, 136n16 Shemitah, 79, 84 Shemitah cycle, 33, 84n70 Shepherds, 293 Sherira Gaon (and his Epistle), 8–9n13, 11n16, 219n6 Sheshet, Rav, 197n30

 INDEX 

Shields sale of, 295–296 Shikhekhah (forgotten sheaf), 29, 30, 37, 46, 103 Shila b. Abimi, R., 288 Shisha b. R. Idi, R., 289 Shulkhan Arukh (by Joseph Karo), 199n34 Sidon, elders of, 249 Sifra (Leviticus), 254 See also Midrash, halakhic/legal Sifre (Numbers; Zutta; Deuteronomy), 48n70, 254 See also Midrash, halakhic/legal Sihon (Emorite king), 45n55, 84n68 Silenced ones (a caste brought up from Babylonia to the land of Israel), 110 Simeon ben Gamliel, Rabbi, 138, 237, 239, 250 Simeon ben Lakish, Rabbi, 284, 285 Simeon, Rabbi, 35, 40, 80, 86, 136n8, 249 Simeon the Just, 130 Simmel, Georg, 26, 30, 32, 33, 33n3, 57–58, 60n100, 61, 61n104, 66, 96–97 Sinai, revelation at, 131 Sin offering, 70, 90, 283, 286, 289, 297 Sister, 152, 159, 160, 163, 168 Sister-in-law, 104, 157–159 Skin, swelling on, 105 Slanderer, laws of, 115 Slavery, 113 Slaves freed, 100, 110, 111, 114, 115 women/girls, 111–114, 161, 165 Slaves women/girl, 105 Smith, Jonathan Z., 67n18, 183n2, 222, 230n27, 245–246

337

Social and historical uniqueness, 182 Social authority, ix, x, 188 Social boundaries, 185 Social category/categories, 29, 33, 35, 36 differentiation, 26 Social challenges, 120 Social class, 99, 121, 149, 151, 155, 156, 161, 168, 177, 180 Social cohesion, 125, 143, 144, 219, 222, 256, 262, 263 Social construction (of various sociological phenomena), 149 Social control, 119, 155 Social/cultural/religious norms, 202 Social dynamics, 119, 120 Social/economic/historical reality, 27n13, 49 (The term is found in the text as “social and economic reality” and “social-historical reality” in the text. Kindly suggest.) Social equality/inequality/ inequalities, 116 Social equilibrium, 119 Social facts (Durkheimian concept), 185n5, 200n36 Social groups, 148 Social historians/social-historical, vii, viii, xiii, 11, 19, 64n3, 124n4, 201, 266, 268n19 Social institutions, 207, 216 Social interaction between Jews and non-Jews, 160 between men and married women, 155 Socialization, 149 Social life, 116, 155 everyday, 27n14 Social location, 149, 202 Social network, 198

338 

INDEX

Social norms/regulations, changes in, 122 Social order(s), xii, 220 Social organization, xiii, 22, 119, 125, 143, 145, 219 Social relationships/relations, 33, 126, 132, 149, 219, 220, 263 Social science/social scientists/social scientific conceptual categories/ framework, 148 theoretical guidelines, 124–126 Social solidarity, 60, 126, 144, 182 See also Communal solidarity Social standing, 61n104 Social structure, 92 vulnerability of the, 26 Social study of other groups/texts, 182 Society/societies building blocks of, 94, 149 historical value of, 13 traditional, 68, 126, 143 Socio-anthropological theory, 27 Socio-historical questions, 182 Socio-historical scholarship centrists (The sub-term “centrists” under the main term “Socio-­ historical scholarship” is not found in the text. Kindly suggest.) maximalist-minimalist continuum in, 12–15, 16n21, 17–19 maximalists, 12–20 minimalists, 12–20 Sociological/sociology/sociologists, v, ix, x, xii, xiv, 3, 9, 11, 12, 15, 18, 20–23, 30, 33, 64n3, 66–68, 83, 96, 98, 219n5 Sociopolitical, 121, 122 Soil, owner of, 32 Son(s), 44, 70, 105n29, 158, 159, 163 Sore, conspicuous, 167, 178

Sotah (unfaithful wife) secret meeting of, 174 warning(s) from husband to, 174 Soup kitchen, 30, 32, 48, 55, 58 Sovereignty, 59, 120 Jewish attempt to regain, 65 (The term “Jewish attempt to regain” under the main term “Sovereignty” is not found in the text. Kindly suggest.) Space/spatial habitable, 75 material, 66 sacred, 67, 67n18, 68, 72, 78, 92 social, 66 topographical, 202 See also Places Speculative re-creations, 11 Spoken words, 106 Spots causing impurities, 105 Stables (for animals), 293 Stammaim/Saboraim, see Post-Amoraic Stealing, 38, 38n39, 46, 50–51, 109 Stepchildren, 170–172 Stepdaughter, 159, 171 Stepfamilies, 149 Stepparents, 170–172 Stone(s), 73, 74 Stonequist, Edwin, 97n8 Stoning/strangling, 114–115 See also Death penalty Stories, 7n10, 74, 96, 182, 182n1, 189, 219, 245–247, 250, 278 See also Parables Story of Ahikar (found in the Elephantind Papyri), 189 Strangers, 29, 32, 32n27, 53n83, 96–97, 102, 106 spatial circle of, 96 See also Converts/conversion; Ger (proselyte)

 INDEX 

Stratification system, 127, 136 Study/education, institutionalized forms of, 185 Submersion, see Immersion (in a ritual bath) Sugya (sugyot) literary formation of, 226 rhetorical-structural language of, 226 See also Talmud, the, composite essays of Sukkot (holiday), 142 Swearing, see Oaths Synagogue(s), 10n14, 113, 143, 197n30, 231 political governance system of, 191 Synchrony/diachrony, 185n5, 200, 216 Syria, 6, 80n57, 82, 191, 238, 241 T Tabernacle (predecessor to Temple), 71 Tabernacles, Festival of, see Sukkot (holiday) Takkanah (takkanot), 129n9, 142 Talkud, the defending an argumentative position in, 272 Talmid hakham, see Scholars (ancient) Talmuds, the two comparison between, 273 literary (in)dependence between, 197–198, 300 literary-historical relationship between, 267, 268, 274, 299, 301 See also Post-Mishnaic compilations Talmud study, 266 yeshiva-based (institutionalized), 265n14 (see also in singular,

339

yeshiva), Talmud student in; Yeshivot (rabbinic academies) Talmud, the adducing Tannaitic and Amoraic traditions in, 277 adducing Tosefta and halakhic Midrash in, 226, 250, 256 alternative answer/response in, 278, 279 ancillary evidence/sources in, 303 answering questions to, 272–273, 275–276 (see also Talmud, the, “type-5” and “type-6” elements in) arguments/counterarguments in, 272–273, 276–279 (see also Talmud, the, “type-5” and “type-6” elements in) authoritative source(s) in, 276, 277, 280, 299 authors of, 273n27 back-and-forth cadence/flow of, 300, 304, 305 challenges/objections in, 280 circumstance(s) in, 266, 267n16, 277–278 commentaries on, 265, 267n16 compilation of, 263 composite essays of, 265, 266, 269, 269n21, 269n22, 270n2, 271, 274, 279–303 (see also Sugya (sugyot)) concatenation of “type-5” and “type-6” elements in compositions of, 273 discourse of, 267, 272 ethoses of, 273, 274n28 formalization of language/questions in, 272, 277 (see also Talmud, the, “type-5” and “type-6” elements in) formation of, 275n30

340 

INDEX

Talmud, the (cont.) formulaic/laconic language of, 278 (see also Talmud, the, stock terminology/language in) formularies in, 279n34, 280, 300 framers of (The sub-term “framers of” under the main term “Talmud, the” is not found in the text. Kindly suggest.) generative role/question in, 275, 278 historical development of, 264 idiomatic language in, 280 inquiries/queries in, 268, 273n24, 276, 300–301, 304 invitations for critical analysis in, 274–275 laws in, 272, 282–285, 287, 296, 297, 302, 303 legal compositions of, 259–306 legal lemmas in, 278 literary-rhetorical traits of, 264–274 mastery of, 300, 302 Mishnah analysis in, 259–306 as Mishnah commentary, 267n16, 269n22 (see also Gemara (Talmudic elaboration on Mishnah; in plural, gemarot)) “missing” language of, 300 non-legal compositions/composites in, 267, 267n16 (see also Aggadah/Aggadot (non-legal materials in Midrash and Talmud)) novice students of, 300 political/social/cultural environments of, 268 position(s) of dispute(s) within, 276n31, 304 precedent stories in, 278 premises in.about, 269n22, 272–273

“pressure testing” of supporting arguments in, 276, 303–305 questions related to Mishnah elucidation in, 269–270n22 readers of, 269n19, 277 rulings in, 267n16, 275–278, 304, 305 social content/evidence of, 259–267 social context of, 300 stock terminology/language in, 272, 275, 278, 279n34, 305 (see also Talmud, the, formulaic/laconic language of) structural norms/plans/taxonomy of, 268–270, 280, 281 subject matter of, 267 technical/literary/terminological details of, 273 traditions (Tannaitic/ Amoraic) of, 277 treatment of Mishnah passages by, 269n21 “type-5” and “type-6” elements in, 273, 274n28, 275, 275n30, 276n31, 280 Talmud translation interpolation in, 300 square brackets for interpolation in, 300 Tamhui, see Soup kitchen Tanhum b. Hiyya, R., 286 Tannaim, 36n34, 39n41, 49, 195n27, 196 Tannaitic literature, 36n34, 41, 64, 95 Tannaitic sources/documents, 27, 32n27, 48n70, 93n91, 292–298, 302–304 Tanna Kama (first rabbi’s opinion in Mishnaic debate), 77 Tarfon, Rabbi, 43–44, 85 Tax(es), 30, 37, 115, 116, 121

 INDEX 

Teachers, 100, 123, 131, 133, 142, 144, 191 See also Education; Literacy Tefillin (phylacteries), 128 Temple Mount, 69 Temple of Jerusalem architecture of, 72 chambers in, 47, 47n64 contributions/payments to, 138 court of women in, 70 courts/tribunals connected with, 200 cult of, vi, 13, 71, 201 destruction of, vi, 6, 7, 16, 28n39, 87, 88, 93, 123, 129, 141, 142, 145, 183n3, 211n51, 260 (see also Jerusalem, destruction of) era of, 65, 69n27, 71, 143 laws related to, 75 pledges for paying taxes to, 115 rampart of, 69 rebuilding of, 37, 145 return to, 145 ritual practices of, 141 sacrifices in/sacrificial system of, 11, 13, 29, 64, 141, 145 sanctity of, 68 sanctuary of, 70 tasks in, 136 Tenenblatt, M.A., 273n27, 275n30, 279n34 Terumah, see Heave offering Testicles/penis, deformities in, 111, 111n35 Testimonies, 91, 139, 187 Tevul-yom, 70 Theft/thief, see Stealing Tikkun olam, 86 Tinoket, 134–165 See also Ketanah; Maidens; Narrah Tithe/tithing, 29, 31, 33, 37, 38, 43–46, 53, 59, 69, 79, 81, 82, 84–86, 113, 177, 201

341

Tools (e.g. agricultural), 31, 31n23, 40, 50, 58, 291, 292, 296 See also Hoe(s); Plow/plowing Torah literacy, 189 See also Torah study/mastery Torah-of-Moses-alone community/ ideology, 186, 188 Torah scroll, 140 Torah study/mastery, 191, 194 See also Torah literacy Torah, the, see Pentateuch, the (Humash; first division of scripture); Scripture (Bible; Tanakh) Torts, 11, 199, 231 Tosefta (Tosafot) agenda of, 230–234 attribution to authorities/ personalities in, 49–56 authority in, 219, 225, 226, 231, 243, 244 authors of, 224, 226, 227n22, 229, 233n37, 255 (The sub-term “authors of” under the main term “Tosefta (Tosafot)” is found in the text as “authorship.” Kindly suggest.) “chapters” of, 232–234 circumstance(s) in, 221, 245, 247, 248, 255 commonalities with Mishnah, 224, 228, 246 as compilation/collection of beraitot, 225–227 concatenation/permutation of terms in, 245 content(s) of, 227n22, 232–233, 241, 247, 256 context of, 232, 233n36, 233n37, 234, 247, 251 coverage/treatment of grand theme subject matters in, 199 declarative sentence(s) in, 244, 245

342 

INDEX

Tosefta (Tosafot) (cont.) differences from Mishnah (on micro and macro literary-rhetorical level), 230–234, 244–254 evidence of, 217–222 exhaustiveness of (with regard to subtopics), 199 formal comnstruct(s) in, 245, 247, 253 formularies in, 250 halakhic-midrashic constructs in, 227n22, 250–254 (see also Midrash, halakhic/legal) human constructs in, 222 in situ use of (in serving Mishnah study), 224, 228–230, 232–234, 236, 241, 243, 246–248, 250, 251, 254, 256 interpolation for Mishnah study being modelled from, 238–240 joining language in, 245 legal aspects of, 241–244 literary-rhetorical traits of; intermediate level, 235–244; macro, 230–234; micro, 244–254 literary unity/coherence of (lack thereof), 232–234 modelling of skills in study of, 305 morphological/word/phrase repetition in, 245 passages in, 218n2, 221, 223n14, 224–225, 227n21, 228–230, 232–236, 241–245, 247, 248, 250, 251, 255–256 production of, 229n26, 232n33, 234 questions (“why,” “what,” “how”) in, 242 “redirected dispute” in, 247–250, 256 repetition of lexical terms/ opposites in, 245 rulings in, 221

subtopics of, 231, 243, 254 as supplement/complement/ commentary to Mishnah, 235–244 techniques used in production of, 230, 245 thought experiments to illustrate study of, 233, 275, 276 as tool for interpretation of Mishnah, 217–257 topical organization of, 220, 230, 232–233, 243–244, 254–255 tractates of, 219, 226, 227n22 tradition history connected to, 242, 243, 250, 256, 305 traditions in, 224–226, 227n22 See also Proto-Tosefta Tosefta by tractate Avodah Zarah, 279–299 Bekhorot, 235, 236, 251 Gittin, 236–238, 240, 241, 248–250 Peah, 32n27, 35 Shabbat, 48n70 Shevi’it, 291 Toseftan language/study, 217–257, 263n11, 264, 271, 272, 276, 305 as laconic, 235–243 Toseftan study, background knowledge for, 255 Tov, Emanuel, 10n15, 187n11 (The term “Tov, Emanuel” is found in reference-like notes only. Kindly suggest.) Towns/villages, 22, 54, 172, 190, 191, 201, 237n46 See also City/cities Transition from impurity, 165 in life course (eg. to adulthood), 147–180 from non-Jew to Jew, 103, 117 into or out of groups, 148

 INDEX 

of women from control by father to control by husband, 155, 166 Transjordan (east bank of the Jordan), 45n55, 172 Travel/travelers, 32, 53, 53n83, 54 Tree(s), 35, 40–41 Trial, 174 Tribunal(s), 200, 249, 250 Tutors, see Teachers Two Loaves offering, 69, 69n27 U Unborn fetus, 208, 209 Uncircumcised males, 102 See also Circumcised males; Circumcision Unclean species, 206, 207, 210 Unclean/uncleanness, 18, 51, 69, 73, 103n26, 173, 207, 252 See also Impure/impurity (tamei/tumah) Uncles, 149 Unity, 19, 58, 97, 232–234, 255, 269n21 Universal human similarities (cf. Noahides), 97 Urbach, Ephraim, 16n21 Urban geography, 22 Urban landscape, 31n21, 60n99 Urim V’Tumim (of the priests), 135 Utensils/vessels, 31n23, 52, 57, 79, 139 V Vegetable(s), 82, 137 Vineyards, 29, 43, 51, 82 See also Grapes Violence/conflict, 56, 126, 132, 135, 138, 144 See also Poor, the, aggressiveness by Virginity, see Women/females, virgin Vitt, Lois A., 99

343

Vonnegut, Kurt, 200 Vows, 43, 167–169, 177, 178 nullification/annulment of, 130, 166, 169, 172–173 See also Commitments W Wages, 165 Walzer, Michael, 124 Wealthy, the, 47n64, 48n70, 49, 121, 148, 153n6, 168, 189 Weapons, sale of, 287 Weber, Max, x, 21n24, 119, 124–126, 130, 143, 144 Wedding, 168, 169 See also Erusin (betrothal ceremony); Kiddushin (sanctification of marriage); Marriage, process of; Nisuin (last part of the marrisge ceremony) Weiss Halivni, David, 203n44, 227n22, 273n27, 275n30 Wheat, 33, 84 sale of, 295 Whore, see Sexual relations, outside marriage Widow(s) financial support of, 153 labour of, 170 Widowers, 152 Widowhood, 149 Wife/wives deserted by husbands, 90, 91 earning of, 167 financial vulnerability of, 154 husband’s control of/power over, 155, 172, 173, 175 (see also women/females, male control of) non-Jewish, 170 restrictions on, 168 See also Women/females

344 

INDEX

Wild beasts, 286 sale of, 287 See also Animals Wilderness, 251 Wilfand, Yael, 27n10, 32n27 (The term “Wilfand, Yael” is found in reference–like notes only. Kindly suggest.) Wine, 17, 35, 55, 79, 174, 283 Wisdom literature/texts/teachings, 186n8, 189, 194 Witnesses handwriting om signatures of, 89 signatures of, 248 Witnessing, suitability for (The term “Witnessing, suitability for” is not found in the text. Kindly suggest.) Women (Nashim-Mishnaic order/ division), 150 Women/females abuse/exploitation of, 154 accused by adultery (see Sotah (unfaithful wife)) assertiveness of, 155, 174, 175 autonomy/independence of (or lack thereof), 154, 155, 172–174, 179, 234 being married without their consent, 164 economic position of, 154 giving birth, 69, 208–210, 245, 284, 285, 296 as “guardians” of the household, 152 immodest actions by, 178 infertile/non-fecund, 158, 173, 175 lighting Sabbath candles on Friday night, 152 male control of, 153, 155, 166, 170, 172–173 (see also Wife/ wives, husband’s control of/ power over)

nursing, 166n14, 175 old(er), 166n14, 175 passivity/powerlessness of, 154, 156, 174–176, 178 performing household/domestic tasks/responsibilities, 152, 153 pregnant, 109, 163, 166n14 roles of, 149, 152–153, 174, 176 subservience/subordinate position of, 172, 179 taken captive, 112, 113, 165 (see also Girls, taken captive) violated by men (see Rape) virgin, 162, 166n14 (see also Bogeret) See also Wife/wives Women’s behavior, norms about, 177 Wood chopping, 135 Work, 56, 165, 167, 169, 218 See also Labor; Occupations; Professions World, center of the, 67, 93n1 Writings, 10, 13, 58, 89, 146, 191, 268n19 Writings, the (last division of Scripture) (The term “Writings, the (last division of Scripture)” is not found in the text. Kindly suggest.) Y Yavneh, 140 Yerushalmi, see Jerusalem Talmud Yeshivot (rabbinic academies; in singular, yeshiva), 183n2 Talmud student in, 265, 265n14 (see also Talmud study, yeshiva-­ based (institutionalized)) See also Schools Yibum (levirate marriage), 89 Yohanan b. Berokah, R., 160

 INDEX 

Yohanan b. Zakkai, R., 15, 44, 212 Yohanan, R., 297 Yom Kippur, 139, 141, 152 temple service on, 127, 128 Yom Tov, see Holidays Yose b. R. Bun, R., 284 Yose b. Yohanan of Jerusalem, 45 Yose (ben Halafta), R., 212 Yose the Galilean, R., 34, 48, 105 Yose the son of the Damascene, R., 44

345

Z Zav (someone with flux), 105, 115 See also Flux, uncleanness by Zavida, 299 Zavid, R., 296 Zechariah, Book of, 71 Zion, 69n25 Zuckermandel, M.S., 218n2, 236 Zuz (currency among Jews in Roman-­ era Israel), 31, 34, 48