The History of Earlier Rabbinic Judaism: Some New Approaches

Author(s): Jacob Neusner

Source: History of Religions, Vol. 16, No. 3 (Feb., 1977), pp. 216-236
Published by: The University of Chicago Press
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 Jacob Neusner THE HISTORY OF
EARLIER RABBINIC
JUDAISM: SOME NEW
APPROACHES

The formative history of rabbinic Judaism

which claims that a dual Torah, one in wri
mitted orally, was revealed to Moses at Sin
tions is now contained in the rabbinic liter
the publication of Mishnah-Tosefta, circ
mythic structure, fundamental themes of
predominant and generative methods and c
of rabbinic Judaism had taken shape by th
next eighteen centuries produced interes
articulations of much which, at the outs
seed.1 Nonetheless, when we wish to de
rabbinic Judaism, we have to begin in
Tosefta and cognate, dependent literature
Tosefta. When we do, however, we realize
easy one. For these documents are one d
difficult to enter and full of exegetical pro
This paper in various forms was given as a lecture i
following universities: University of California, B
versity; Oxford University; Haifa University; and
Republic of South Africa, it was delivered at Witswat
burg, Potschefstroom University, Stellenbosch University, and Cape Town
University. The author thanks his hosts for helpful comments and suggestions.
1 Nor should we ignore quite autonomous intellectual structures which entered
into the rabbinic system and were naturalized within it. The most important are
Aristotelian philosophy in its Islamic form, represented by Maimonides, and
Neoplatonism in its qabbalistic form, represented by the Zohar and its rich later
developments. The latter was never wholly rabbinized.
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History of Religions

That fact has not prevented historians of Judaism from under-

taking the task of supplying us with accounts of the earlier history
of rabbinic Judaism. These accounts begin, for the pious, at Sinai,
for the scholars of the Wissenschaft des Judenthums at the time of
Ezra, and for others at various points after that time. Historians
of Judaism, moreover, have even given us a picture of the early
history of Judaism which omits all reference to rabbinic Judaism
as such, treating the matter as late and unimportant, therefore
ignoring the fact of its predominance from the second century to
the present.2 Many have approached the problem primarily as a
work of theology, telling us in ahistorical and nondevelopmental
terms "the talmudic view" of various issues important in the
unfolding of nineteenth-century Protestant theology, even claim-
ing that that "talmudic view," however attained, constitutes not
merely theology but history, specifically, the history of ideas.
While my purpose is not to dwell upon the failures of former
approaches, but to explain a new one already well under way, I do
think it fair to specify five problems left unsolved by extant
scholarly literature. It is, after all, only upon the achievements of
earlier generations that we found our own, solely in recognition of
problems left unsolved by others that we perceive our task.
1. The first problem is insufficient attention to the originally
sectarian character of rabbinic Judaism, the fact that, in its
formative century, it in no way achieved the normative status
later on accorded to it. Treating rabbinic Judaism as normative,
scholars then introduce into their account of its historical-
intellectual development those sources external to rabbinic liter
ture which they deem congruent to its structure and systematica
omit those which do not fit. Accordingly, the selection of
repertoire of sources which testify to the condition of "the rabbi
mind"3 is both confusing and canonical. Scholars do not alwa
explain why one source, not formulated and transmitted un
rabbinic auspices, is valid testimony, and another source, also n

2 It goes without saying that all such historians of Judaism expressed su

stantial bias against Judaism in their own day, and all have been Christ
theologians.
3 This particular construct, utterly ahistorical, produces the exercises in to
confusion represented, among others, by Max Kaddushin, Organic Think
(New York, 1938) and The Rabbinic Mind (New York, 1952), and his consider
more lucid work, Worship and Ethics (Evanston, Ill., 1964). But Kadushin ha
at least, the merit of attempting to cope with historical data in an unhistor
yet systematic, way. If his failure to attain conceptual lucidity demonstrates t
limitations of an ahistorical approach, he does attempt to deal with the cen
philosophical-conceptual problems. Others who imagine they can speak of "
rabbinic mind" do not even attempt to explain what they mean.
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 The History of Earlier Rabbinic Judaism

formulated and transmitted by rabbis, is not valid testimony. For

example, in current accounts of rabbinic Judaism we often hear
from Philo, but seldom from the Essene Library of Qumran, still
more rarely from the diverse works assembled by R. H. Charles as
the apocrypha and pseudepigrapha of the Old Testament, and the
like.4 If we seek to describe the talmudic rabbis, surely we cannot
ask Philo to testify to their opinions. If we listen to Philo, surely
we ought to hear-at least for the purpose of comparison and
contrast-from books written by Palestinian Jews of various
kinds. The Targumim are allowed slight place at all because they
are deemed "late." But documents which came to redaction much
later than the several Targumim (by any estimate of the date of
the latter) make rich and constant contributions to the discussion.
The canonical character of the sources accepted in evidence
requires specification. In general, pictures of rabbinic Judaism
begin within the rabbinic-Judaic picture of its own past. Since
rabbinic Judaism claims to stand in a direct line from Sinai,
modern scholars commonly take for granted that an important
part of their task is to link ideas in rabbinic documents with those
in biblical ones. This leads to a distortion, of course, since the
important ways in which rabbinic documents diverge from, revise,
and utterly reverse the implications of their alleged counterparts
in biblical literature are utterly missed.5 The "oral Torah" repre-
sented by Mishnah and its cognate literature is presented in the
4 The most blatant instance is S. Safrai, ed., The Jewish People in the First
Century (Philadelphia, 1975), in which the Dead Sea Scrolls, assuredly testimony
to the condition of the Judaism of at least one first-century community, are ruled
out as evidence in favor of medieval rabbinic compilations produced eight or ten
or more centuries thereafter. But Safrai's volume contains little to suggest
knowledge of contemporary historical method and thought. Canonical-theological
selection among sources is Safrai's least interesting fault.
5 Mishnah tractates such as Ohalot and Parah either reverse the primary con-
ceptions of the Priestly Code or so treat matters that the conceptions of the
Priestly Code are unrecognizable. The largest tractate of the Order of Purities,
Kelim, deals with a subject, the susceptibility to uncleanness of domestic utensils,
utterly outside of the imagination of the priestly legislators (see n. 30 below).
Efforts to link Mishnah law with Levitical law, represented, for example, in Sifra,
are post-Mishnaic and post facto. Their real interest is in demonstrating that
Mishnah-oral Torah-must rest not upon reason but upon revelation contained
within the written Torah (in the present instance, the Priestly Code). Accordingly,
Sifra stands as a critique of Mishnah, or, more accurately, of the claim that
Mishnah is an autonomous Torah, distinct from the written one. The critique is
systematic and brilliant. But, since Mishnah is quoted verbatim, Sifra does not
even pretend to demonstrate the way in which Mishnah law originated, that is,
generated by the exegesis of the written Scriptures. In this regard, my History of
the Mishnaic Law of Purities, vol. 7, Negaim. Sifra (Leiden, 1975), contains
illustrative materials; Ben Zion Wacholder, Hebrew Union College, presented a
paper at the December 1975 meeting of the Association for Jewish Studies which
offers the same thesis earlier argued in Purities, vol. 7, with important develop-
ments of that thesis.

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History of Religions

rabbinic myth as autonomous and separate, for at Sinai Moses

received two Torahs. But in the modern scholarly picture, the oral
Torah commonly is interpreted solely as derivative of, and de-
pendent upon, the written one, in the main the product of exegesis
of Scripture. That is utterly false for a great many tractates and
true only in a limited sense for others. Nonetheless, because the
rabbinic myth makes no room for the vast development, in the
period from the fourth century B.C. to the second century A.D., of
diverse sorts and types of Judaism, the immense literature of that
period-Dead Sea Scrolls, Apocrypha, Pseudepigrapha, and the
like-is rarely consulted for its connections with, its contributions
to, the rabbinic Judaism of the later period. It follows that in the
accounts presently available to us, the portrayal of the sources
jumps from biblical to tannaitic to amoraic sources, that is, from
circa 450 B.C. to A.D. 200-500, as though the line of development
were single, unitary, and harmonious and as though there were no
intervening developments which shaped rabbinic conceptions.
Differentiation among the stages of tannaitic and amoraic
sayings, moreover, tends to be episodic. Commonly, slight sus-
tained effort is made to treat them in their several sequences, let
alone to differentiate among schools and circles within a given
period. In the case of Urbach's Hazal,6 for example, the author
takes with utmost seriousness his title, the sages, their concepts and
beliefs, and his "history," topic by topic, reveals remarkably little
variation, development, or even movement. It would not be fair to
Urbach, in particular, to suggest that all he has done is publish his
card files. But in general scholars have shown greater skill at
organization and arrangement of materials than interest in
differentiation and comparison within and among them, let alone
in the larger, sequential history of major ideas and their growth
and coherent development over the centuries.7
6 Ephraim E. Urbach, The Sages: Their Concepts and Beliefs, trans. Israel
Abrahams, 2 vols. (Jerusalem, 1975). Two volumes of essays of Urbach, many of
them translated from Hebrew for the first time, are presently being edited by
William Scott Green, University of Rochester, and will be published in Studies in
Judaism in Late Antiquity (Leiden, forthcoming).
7 G. F. Moore, Judaism, 3 vols. (1927; reprint ed., Cambridge, 1954), and C. G.
Montefiore and H. Loewe, Rabbinic Anthology (1938; reprint ed., Philadelphia,
1959) are excellent examples of the established approach to the description of
talmudic theology. The former paraphrases, the latter simply quotes. Neither
makes much effort at uncovering the history of an idea, its development over a
period of time. In the area of the history of legal ideas, by contrast, we have works
of substantial critical acumen and entirely satisfactory results, e.g., R. Yaron,
Gifts in Contemplation of Death in Jewish and Roman Law (Oxford, 1960), not to
mention the ongoing research of Bernard W. Jackson. But even here, the critical
achievement of some is matched by work of surpassing gullibility. Menachem
Elon, Jewish Law: History, Sources, Principles, 3 vols. (Jerusalem, 1973) (in
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 The History of Earlier Rabbinic Judaism

2. This brings us to a second important problem in present

scholarship on the history and character of earlier rabbinic
Judaism. The generality of books on talmudic or rabbinic Judaism
is organized in categories drawn from nineteenth- and twentieth-
century histories of Christian, particularly Protestant, theology;
the intellectual agendum is shaped within Christian theological
faculties and not within the Judaic literature which supposedly
comes under analysis and description.8 Accordingly, an account of
talmudic Judaism will treat such topics as belief in one God, the
presence of God in the world, the power of God, the power of the
divine name, providence, sin, reward, punishment, suffering,
eschatology, and the world to come, and similar topics of interest
to historians of theology and ethics. That is to say, the world view
of the rabbis of the Talmud loses its distinctive foci and organizing
perspectives and is forced into those of an alien world of thought.
From the viewpoint of their organization and description of reality,
of their world view, the talmudic sages certainly would have
organized their card files quite differently. We know that is the
case, because among the standard topics of rabbinic theology in
the various accounts we do not have a single one which focuses
upon the theme of one of the orders, let alone tractates, within
which the rabbis divided and presented their various statements
on reality. These organizing divisions of reality can be translated
as "Seeds," the material basis of life; "Seasons," the organization
and differentiation of time; "Women," the status of the individual;
"Damages," the conduct of civil life, including government;
"Holy Things," the material service of God; and "Purities," the
immaterial expression of supernatural reality in this world. The
matter concerns not merely the superficial problem of organizing
vast quantities of data. The talmudic rabbis left a large and ex-
ceedingly complex, well-integrated legacy of law. Clearly, it is
through that legacy that they intended to make their fundamental
statements upon the organization and meaning of reality. Accounts
of their concepts and beliefs which ignore nearly the whole of the
halakhah surely are slightly awry.
Hebrew) marks a giant step backward from Yaron. Elon's "history" of Jewish
law to the end of talmudic times consists of nothing more than a paraphrase of
sayings in the Talmud about the halakhic ordinances of Solomon and other marvels.
The difference, of course, between Yaron and Jackson, on the one side, and the
scholars for whom Elon and his equivalents constitute critical learning, on the
other, is that the latter are Orthodox and deem essential to Orthodox Judaism
perfect faith in the historicity of talmudic fables and legends. It is futile to raise
critical questions to that school of historians of ideas; they are not apt to want to
answer such questions.
8 Moore, Urbach, and Montefiore and Loewe are representative.
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History of Religions

3. A third major problem in available studies concerns the

nature and use of the literary evidence. So far as scholars claim to
tell us about the history of talmudic theology and religion, they
rely upon the assumption that sayings are to be assigned to the
rabbis to whom they are attributed and therefore may be used for
the description of that person's thought. This assumption pertains
to all sayings given to a particular authority, without regard to the
date of the document in which they occur. Everything found in
the name of 'Aqiva throughout the rabbinic literature is forthwith
supposed to belong therefore to the end of the first century,
excluding, among the more enlightened, attributions by the
Zohar (thirteenth century) to tannaitic rabbis. Yet we must ask,
if a saying is assigned to an ancient authority, how do we know
that he really said it ? If a story is told, how do we know that the
events the story purports to describe actually took place And if
not, just what, for historical purposes, are we to make of said story
and saying? Further, if we have a saying attributed to a first-
century authority in a document generally believed to have been
redacted five hundred or a thousand years later, how do we know
that the attribution of the saying is valid and that the saying
informs us of the state of opinion in the first century, not only in
the sixth or eleventh in which it was written down and obviously
believed true and authoritative ? Do we still hold, as an axiom of
historical scholarship, 'ain muqdam ume'uhar (temporal categories
do not apply)-in the Talmud! And again, do not the sayings
assigned to a first-century authority, redacted in documents de-
riving from the late second century,9 possess greater credibility
than those first appearing in documents redacted in the fifth,
tenth, or even fifteenth century? Surely, on the face of it, we
should distinguish between more and less reliable materials. The
well-known tendency of medieval writers to put their opinions into
the mouths of the ancients, as in the case of the Zohar, surely
warns us to be cautious about using documents redacted, even
formulated, five hundred or a thousand or more years after the
events of which they speak. As I shall explain, we should work
first on the earliest documents. The results then will serve as a
guide and control for attributions and allegations in much later
ones.

4. Fourth, the corpus of evidence is simply

characterizes even the most thorough and comp
But should we not devise means for the filte
9 I refer specifically to Mishnah-Tosefta.
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 The History of Earlier Rabbinic Judaism

some fundamental, widely and well-attested opinions out of the

mass of evidence, rather than capriciously selecting what we like
and find interesting ? We have few really comprehensive accounts
of the history of a single idea or concept. It seems somewhat
premature to describe so vast a world in the absence of a far more
substantial corpus of Vorstudien of specific ideas and the men who
held them than is available. Inevitably one must characterize the
treatment in the available accounts of early rabbinic Judaism of
one topic after another as unhistorical and superficial.
Thus far we work without the advantage of studies of the history
of the traditions assigned over the centuries to one authority or
another. We have at hand scarcely any critical work comparing
various versions of a story appearing in successive compilations.
There is no possibility of recourse to comprehensive inquiries into
the Talmuds' forms and literary traits, redactional tendencies,
even definitive accounts of the probable date of the redaction of
much of the literature used for historical purposes.10 We cannot
consult works on the thought of any of the individual Amoraim or
on the traits of schools and circles among them, for there is none
of critical substance. Most collections which pass as biographies
even of Tannaim effect no differentiation among layers and strata
of the stories and sayings, let alone attempting to describe the
history of the traditions on the basis of which historical biography
-if any-is to be recovered.1l The laws assigned, even in Mishnah-
Tosefta, to a given Tanna have not been investigated as to their
underlying presuppositions and unifying convictions, even their
gross thematic agendum. If scholars speak of "the rabbis" and
differentiate only episodically among the layers and divisions of
sayings, in accord either with differing opinions on a given ques-
10 I do not mean to ignore good work which has been given to us, e.g., by Y. N.
Epstein, Abraham Weiss, and, among the living, David Weiss Halivni (see J.
Neusner, ed., The Formation of the Babylonian Talmud [Leiden, 1970] and The
Modern Study of the Mishnah [Leiden, 1973], which provide systematic accounts of
what has been done, in particular on problems of literary history and exegesis).
Furthermore, while little historical work is available, historical study is possible
because of the critical texts made available over the past century and, especially,
because of the unsurpassed exegetical achievement of Saul Lieberman. Yet in the
balance, a century and a half of Wissenschaft des Judenthums, with its stress on
philology, has yet to yield even a decent dictionary to rabbinic literature. Lexico-
graphical work is as discrete and disorganized as the rest of talmudic studies;
little is put together into major and accessible form, but miss a one-paragraph
note in an obscure journal on the meaning of a word and one is consigned to outer
darkness. Nor do we have a critical text of the Babylonian or Palestinian Talmuds.
The only document satisfactorily edited, with reliable, contemporary exegesis as
well, is Tosefta, the work of Saul Lieberman.
11 A good example of the uncritical (or, more kindly, precritical) character of
the enterprise of rabbinic biography is my Life of Yohanan ben Zakkai (Leiden,
1962; 2d ed., completely rev., 1970).
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History of Religions

tion or with the historical development of evidently uniformly

held opinions, they are hardly to be criticized. Such history as we
have is remarkable for the precritical methods and uncritical pre-
suppositions upon which it is based.12
5. Fifth, let me rapidly allude to the intractable problems of
internal, philosophicotheological analysis of ideas and their inner
structures, once their evident historical, or sequential, develop-
ment, among various circles and schools of a given generation and
over a period of centuries, has been elucidated. That quite separate
investigation, analysis of the logic and meaning of the concepts
and beliefs of the sages, requires definition in its own terms, not in
accord with the limited and simple criteria of working historians.
So far as rabbinic Judaism forms a whole and cogent structure, we
want to see how the parts relate to one another and express a
world view which is constituted by the individual elements or
units. The history of rabbinic Judaism in its earlier phases may
tell us how things took shape, in what sequence; knowing what
theme or idea came first and what followed, we may then derive
some picture of the inner logic of the whole, how people reached, in
response to given conceptual stimuli, positions adopted later on.
Yet there is that other logic, the logic of the whole which trans-
cends the parts, unifies them, and generates still more encompas-
sing notions, a broader canopy of meaning. This aspect of the
structure has yet to be perceived.
I wish now to propose solutions to the five problems I have just
outlined. They begin in the decision radically to revise the agendum
for inquiry into the history of earlier rabbinic Judaism, including
the history of its salient religious and legal conceptions which
stand at the center of the system.
The first, and most important, step is to select for close analysis
only one major document, the one which comes first in time and
generates much that followed, Mishnah-Tosefta, along with
traditions cognate to Mishnah-Tosefta and contained in docu-
ments compiled only after the redaction of the fundamental cor-
pus. Now it may be self-evident that the work must start with
Mishnah-Tosefta, for the reason just noted: it comes first in time
and stands behind much else. Yet what is not so obvious is that,
when we select that document, we come to the center of rabbinic
Judaism in its earliest phase. It is Mishnah that the earliest

12 In my History of the Jews in Babylonia, 5 vols. (Leiden, 1965-70), I tried to

construct an agendum which could be dealt with in the precritical state of our
understanding of the sources. This is spelled out in the prefaces of vols. 3, 4, and 5.
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 The History of Earlier Rabbinic Judaism

Amoraim deemed oral Torah. It is Mishnah that occupied their

attention. It is, moreover, Mishnah that stands closest, in point of
presumed redaction, to the earliest named authorities, from
Yohanan ben Zakkai, Eliezer, and Joshua down to Rabbi himself.
Mishnah stands within fifty years of the time of its predominant
authorities, Yose, Meir, Simeon, Judah, and the other Ushans
cited most often therein. When, moreover, we systematically
compare stories and sayings first found in Mishnah-Tosefta with
their parallels first found in later compilations, we find that those
found in Mishnah-Tosefta exhibit traits generally associated with
the primary and original version of a story or saying, while those
versions found in Yerushalmi, Bavli, and the amoraic midrashic
compilations, including Sifra, Sifre, and the Mekhiltas, generally
exhibit those literary traits which indicate development of, and
dependence upon, their parallels in Mishnah-Tosefta.13 Conclu-
sions reached upon the basis of analysis of pericopae of Mishnah-
Tosefta serve as a control and criterion for the use of evidence in
later documents.
There are two approaches to Mishnah-Tosefta. From the first,
we begin and work forward from the sayings attributed to the
tannaitic masters reviewed in historical sequence, beginning to
end. From the second, we start with the end product and work
backward, including unnamed traditions in Mishnah itself, with
cognate sayings in Tosefta, the tannaitic Midrashim, and the
Palestinian and Babylonian Talmuds. I have undertaken the
former approach in Rabbinic Traditions about the Pharisees before
70, in Development of a Legend: Studies on the Traditions Con-
cerning Yohanan ben Zakkai and in Eliezer ben Hyrcanus: The
Tradition and the Man.14 It goes forward in dissertations on the
masters of Yavneh. The latter approach begins in History of the
Mishnaic Law of Purities.15
Each approach has its advantages and limitations. Starting
with the sayings attributed to the earliest generations of tannaitic
authorities, we are able progressively to describe the whole of a
13 Up to now, the accepted view is that when we have two or more versions of
the same event, then said event happened two or more times, once one way, once
another. This simply expresses the prevailing "fundamentalism."
14 Leiden, 1971; Leiden, 1970 (note the extensive critique in the next item);
Leiden, 1973.
15 Leiden, 1974-. The work is thus far in nineteen volumes and is expected to
be complete in twenty-two. Its approach is now carried forward in A History of
the Mishnaic Law of Agriculture, dissertations by graduate studients at Brown
University, with the following presently under way: Demai, Richard S. Sarason;
Kilayim, Irving Mandelbaum; Shevicit, Michael Rosen; Ma'aserot, Diane Levine.
Other tractates are in hand as well.

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 History of Religions

tradition attributed to a single man and to trace the outlines and

growth of materials alleged by the sources to be very early.16 But
we rely far too heavily upon the accuracy of dubious, or at least
undemonstrated and undemonstrable, attributions to an early
authority. And we are unable to raise larger questions of redaction
of completed units of tradition. Still more seriously, analysis of
individual units of tradition inevitably tends toward a certain
superficiality in the treatment of larger legal issues. Since we cover
a wide range of legal topics but consider, within that range, only
the few points to which the master under study contributes, we
are unable to locate the underlying legal conceptions, the philos-
ophy behind the law itself. Our contribution to the exegesis of
specific passages therefore is decidedly limited. Our account of the
individual authority may therefore be broad but is not deep as to
the history of laws in which he is involved.17
Beginning at the end, with the Mishnah itself, by contrast we
concentrate on the final product of two hundred years of tradition,
investigate the many pericopae not assigned to a specific authority,
and ask the decisive and comprehensive formal, historical, literary,
redactional, and source-critical questions. We do not heavily rely
upon attributions of sayings to a given authority, but are able, as
I shall explain, to raise the question of how the substance of a law
may attest to the prior, or posterior, availability of another rule,
without regard to the name, if any, to which it is attached. But

16 In addition to Development of a Legend and Eliezer ben Hyrcanus, mention

should be made of multivolume works on Ishmael by Gary G. Porton, University
of Illinois; Joshua ben Hananiah by William Scott Green, University of Rochester;
Gamaliel of Yavneh by Shamai Kanter; Yose the Galilean by Jack Lightstone, Sir
George Williams University; Tarfon, by Joel Gereboff; Eleazar ben cAzariah, by
Tzvee Zahavy; and 'Aqiva in Zera'im, by Charles Primus, University of Notre
Dame, all in press or in print. I believe all major corpora of traditions given in the
name of authorities of Yavneh have been subjected to critical investigation, save
only the bulk of cAqiva's materials. Some minor figures also have been worked
out. An equivalent approach to the Ushans, that is, the authorities from the Bar
Kokhba war to the time of Rabbi, is not likely to be undertaken in the near
future, because the major figures, e.g., Yos6, Judah, Simeon, Meir, and Eliezer/
Eleazar, are given such immense collections of legal pericipae that a different
approach is called for. The best approach to them is through the work on the
several tractates, to which the Ushans's contributions are to be specified. When
all of the tractates of Mishnah have been examined with care, it will be possible
to begin to construct a picture of the thought of Yos6, Judah, Simeon, Meir, and
so on.

17 The problem of the superficiality of the exegesis of the laws tro

connection with Rabbinic Traditions about the Pharisees and Eliezer be
Subsequently, we have been able to devise some methods to come to
appreciation for the contributions of a given authority to the sever
law contained in the various tractates. But exegesis is substantive an
when it encompasses an entire tractate, not the handful of pericop
authority in said tractate.
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 The History of Earlier Rabbinic Judaism

the work of finding thematic strata is quantitatively immense and

raises exceedingly complex questions of method.
By contrast to the former approach,18 however, we focus on a
limited set of legal conceptions and attempt to show what larger
philosophy seems to be imbedded in discrete laws. We make more
extensive use of the rich corpus of legal commentary available
from posttalmudic times, for we take the law seriously and in its
own terms.19 We ask historical questions, to be sure, but not about
a particular authority and a small and concrete aspect of law,
rather about a corpus of the law as a whole.
The investigation of the history of the religious and legal ideas
of a tractate of Mishnah-Tosefta must begin with a fresh exegesis
of the tractate. Let me explain why this is the case and what is to
be done. The established exegesis takes for granted an axiom
which is simply false: all texts and laws are to be interpreted in the
light of all other texts and laws. Talmudic discussions of Mishnah
and its meanings invariably shape the received interpretation of
Mishnah, for example. If Tosefta-itself a commentary-supplies
a conception of Mishnah's principle or rule, then Tosefta places
the imprint of its interpretation upon the meaning of Mishnah.
Now no one would imagine that the original meaning of Tanakh20
is to be uncovered in the pages of Midrash or in the medieval
commentaries to the Scriptures. On the contrary, everyone
understands that Tanakh has been subjected to a long history of
interpretation, and that that history, while interesting, is germane
to the original meaning of Tanakh only when, on objective and
critical grounds, we are able to affirm it by historical criteria. By
contrast, discussion of Mishnaic pericopae in Talmud and medieval

18 That is, the approach through names of specific authorities, encompassing all
tractates to which these authorities contribute.
19 The point is that, when we ask exactly the same questions as do the cl
commentaries, we are greatly assisted by their answers. The issues then are
shaped by timeless logic and define the inner structure of the law. The elucidation
of the conceptions of a pericope and of its larger interrelationships with other
pericopae, viewed as problems of logic, indeed depends upon the vastly superior
grasp of the character of the law as a whole and of the ultimate logic exhibited by
the great commentators. Sharing a problem dealt with by Maimonides, Elijah,
Gaon of Vilna, or Saul Lieberman, one is invariably moved to humble admiration
at their intellectual achievement; pure, penetrating logic, exegetical independence
and ingenuity, and commonsensical grasp of the real problem at hand, respectively.
But the same is so of Tosefta, when Tosefta is read as a commentary on Mishnah
and when, therefore, its questions and its mode of finding answers are grasped as
exercises in exegetical logic. The rich corpus of legal commentary suffers devasta-
tion, however, when it is treated as "tradition," an exercise in imposed meaning
(as it is in nearly all centers of Jewish learning). Piety produces stale scholasticism
and yields sterile minds. This is-miraculously-despite the intellectual vitality
and awesome power of Mishnah.
20 "Old Testament,"
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History of Religions

commentaries and codes generally exhausts the analysis of the

meaning of Mishnaic pericopae.
What is meant is simply, what did these words mean to the
people who made them up, in the late first and second centuries ?
What issues can have been in their minds ? True, much is to be
learned from the answers to these questions supplied by the
exegetes from the third to the twentieth centuries. But since, in
the main, the supposition of the established exegetical tradition is
nonhistorical and therefore uninterested in what pericopae meant
at the outset, the established tradition, without reevaluation, will
not serve. That is not to suggest it cannot be drawn upon. The
contrary is the case. I know no other road into the heart of a
pericope. At the same time, the established agendum-the set of
issues, problems, and questions deemed worth consideration-is to
be drastically reshaped, even while much that we have received
will be reaffirmed, if on grounds quite different from those which
motivated the great exegetes.
The classical exegetes faced the task of showing the profound
interrelationships, in logic and meaning, of one law to the next, to
developing and expanding the subtleties and complexities of law,
in the supposition that in hand is a timeless and harmonious,
wholly integrated and unitary structure of law and logic. In other
words, the established exegetical tradition properly and correctly
ignores questions of beginnings and development, regarding these
questions as irrelevent to the true meaning of the law under the
aspect of eternity.21 And that is indeed the case-except when we
claim to speak about specific, historical personalities, at some one
time, who spoke the language of their own day and addressed the
issues of their own epoch. 22 If one hopes to tell not about talmudic
Judaism in general-organized, as is clear, around various specific
topics-but to describe the history and development of talmudic
Judaism, then the sources adduced in evidence have to be ex-
amined with the question in mind, what did the person who made
up or formulated this saying mean to tell us ? And the answer to
that question is not to be located either by repeating the essentially
21 This is not the place to specify the enduring value of the so-called traditional
commentaries. I can only ask the reader to take on faith the proposition that
among the established exegetical literature are found the most brilliant minds
one can hope to meet in his or her intellectual life. The clarity, originality, and
exegetical imagination of the "traditional" commentaries to Mishnah can be
appreciated only with much effort. But the reward is commensurate to the effort.
22 It is to Urbach's credit that he proposes to give exactly that: a picture of the
meaning of the thought of the sages in their own time. But his success in this
regard is not formidable, and the anachronistic and apologetic results tend, in
places, to be retrograde.
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 The History of Earlier Rabbinic Judaism

eisegetical results already in hand or by pretending that everything

is obvious.
We therefore distinguish between the primary issue, present to
begin with in a pericope, and secondary problems or considerations
only later on attached to the pericope. How do we confidently
distinguish between the primary message of a pericope and the
secondary eisegesis found in the great commentaries ? We have to
ask, what does the narrator, legislator, or redactor propose to tell
us in a particular, distinct pericope ? That is to say, through the
routine form-analytical, redactional-, and literary-critical tech-
niques already available, we have to isolate the smallest units of
tradition and, removing them from their redactional as well as
their exegetical-eisegetical framework, ask about their primary
meaning and original intent. Modes of emphasis and stress, for
example, are readily discerned. Important materials will com-
monly be placed at the beginning of a pericope, or underlined
through balanced, contrary allegations. But stylistic considera-
tions and formal traits are helpful primarily in isolating pericopae
and establishing their primary units for analysis. What is decisive
is the discernment of what the narrator includes or omits, what
seems to be his obvious concerns, and what he ignores.
In the exegetical process, form analysis23 and redaction
criticism24 are therefore exceedingly fruitful approaches. Form
analysis makes possible the separation of one pericope from an-
other, the recognition of the basic unit of tradition requiring
exegesis and its several layers of formulation. Redaction criticism
then permits the recognition of the underlying thesis or conception
of the person who put one primitive unit together with another.
Close exegesis, first of all with the guidance of the classical
23 I avoid the term "form criticism" because I do not claim to have contributed
in an important way to the form-critical study of the rabbinic literature. My
earlier use of the term is an error. The sole considerable form-critical study of a
form of rabbinic literature is Wayne Sibley Towner, The Rabbinic "Enumeration
of Scriptural Examples": A Study of a Rabbinic Pattern of Discourse with Special
Reference to Mekhilta d'R. Ishmael (Leiden, 1973). So far as form criticism involves
the history of forms, and Towner's work persuades me that it does, the only form
criticism I have done is in connection with the dispute form (Rabbinic Traditions
about the Pharisees, 2:1 ff.). This is hardly comparable with Towner's splendid
work. Form analysis, by contrast, is a tool of literary criticism. I believe a fair
measure of progress has been made in the creation and use of that tool.
24 So far as I can tell, the first redaction criticism of rabbinic literature is
attempted in my History of the Mishnaic Law of Purities. This is in three aspects:
first, the relationship of one pericope to others in its immediate context; second,
the relationship of Mishnah pericopae to the corresponding ones in Tosefta; third,
the construction of chapters and entire tractates. The redactional-critical problems
thus are quite diverse. See my History of the Mishnaic Law of Purities, vol. 21,
The Formulation and Redaction of the Order of Purities in Mishnah and Tosefta
(Leiden, 1975).
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 History of Religions

commentaries, then opens up the original meaning of the pericope.

In this regard, therefore, form analysis allows us to distinguish
the layers of meaning contained in the pericope, and redaction
criticism reveals the interface and interplay of those several layers.
The processes are reciprocal and stand in a dialectical relation-
ship. The result of those processes and methods is literary history,
itself a primary component in the intellectual history. The history
of the religious and legal concepts and metaphysics contained in
the Mishnaic law therefore begins in the literary work, because the
literary analysis comes prior to exegesis, and exegesis is the
beginning of the reconstruction of the history of those ideas.
The next and crucial question is, if it is assumed that Mishnah-
Tosefta testifies to the time in which the document was finally
redacted, circa A.D. 200, then how shall we know what layers of
thought come before the time of the redaction of the document
itself ? How shall we know, furthermore, whether a person to whom
a saying is attributed really said it ?
To deal with the latter question, I do not believe we have any
way of verifying whether a person to whom a saying is attributed
actually said it. Our history of talmudic Judaism will unfold by
periods, may even produce significant differentiation among
named authorities within the several periods, but it will, so far as
I can see, not supply a definitive answer to the question of
whether "the historical 'Aqiva" really said what he is claimed to
have said. While that question-whether we have ipsissima verba
of a particular historical figure-is deemed terribly pressing in the
study of the founder of Christianity, the importance of the ques-
tion is for theological, not historical, reasons.25 We do not know
everything we might like to know; that does not mean what we
do know is not worth knowing.
Yet the other matter-how we can find out whether anything
in Mishnah-Tosefta antedates the redaction of Mishnah-Tosefta-
requires more considerable attention. Here we begin with a work-
ing hypothesis and test that hypothesis against the results attained
in its application. The simplest possible hypothesis is that the
attributions of sayings to named authorities may be relied upon
in assigning those sayings to the period, broadly defined, in which
said authorities flourished. While we do not and cannot know
whether 'Aqiva actually said what is attributed to him, we are
able to establish criteria by which we find out whether what is

25 I confess that I have never understood the urgency of the question even in
theological discourse, except as a mode of apologetics for the reform of tradition.
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 The History of Earlier Rabbinic Judaism

assigned to cAqiva belongs in the period in which he lived, for

example, to his school or associates (or even to the man himself).
We have laws which interrelate in theme and conception, and
which also bear attributions to successive authorities, for ex-
ample, to a Yavnean, to an Ushan, and to an authority of the
time of Rabbi. If we are able to demonstrate that what is assigned
to a Yavnean is conceptually earlier than, and not dependent
upon, what is assigned to an Ushan, then, on the face of it, the
former indeed is an earlier tradition, the latter a later one. The
unfolding of Rabbis' ideas on legal and other questions may be
shown to take place through sequences of logic, with what is
assigned to later masters depending upon and generated by what
is assigned to the earlier ones. When we find a correlation between
such logical (not merely thematic) sequences and temporal ones-
that is, if what is assigned to a later master does depend in theme,
conception, principle, and inner logic upon what is attributed to
an earlier master-then we have history: we know what comes
earlier, what comes later. We are able therefore to describe ideas
probably characteristic of authorities between the disaster of 70
and the Bar Kokhba debacle, from that time to the period of
Rabbi, and in the time of Rabbi. Doubtless work on amoraic
materials will yield the same series of disciplined sequences of
correlated attributions and logical developments, allowing us to
test the general reliability of the attributions by periods and
making possible a description of ideals held in a given period by
various authorities. On that basis, indeed, we can describe the
ideas really characteristic of one period in the historical unfolding
of talmudic Judaism and relate them to ideas characteristic of
earlier and later periods.26
26 Readers familiar with rabbinic texts will wonder why I have said so little
about traditions lacking attributions. We have, after all, not only sayings assigned
to authorities, but anonymous ones. The problem of unattributed sayings is not
insoluble, since for Mishnah-Tosefta nearly all unattributed sayings fall into the
sequential-conceptual framework established by the attributed ones. Once,
therefore, we are able to establish the stages by which the logic of the law unfolds,
doing so, as is clear, with the help of attributions tested against the logical-
chronological sequence of the substance of what is attributed, we are able to make
provision for sayings which bear no attributions. In any event, these sayings turn
out, upon careful study, to form an inconsequential part of the whole, especially
when we eliminate unattributed sayings which conflict with attributed ones and
which therefore cannot be assigned to a stratum other than that to which the
attributed ones belong. Where there is a problem of some weight is in the exegeti-
cal compilations, e.g., Sifra. There we find unattributed sayings the principle or
fundamental supposition of which is logically and conceptually prior to any
attributed sayings in Mishnah-Tosefta served by a given unit of Sifra. Accord-
ingly, in this case the substance of what is attributed on the face of it would seem
prior to anything in the earliest strata of Mishnah-Tosefta. To be sure, we have
carefully to distinguish formulation from substance.
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History of Religions

There are three significant qualifications of the rule that what is

assigned to later authorities tends in logic and in articulation to
depend upon what is assigned to earlier authorities.
The first is the qualification that not everything given in the
names of Yavneans relates to, generates developments of, what is
assigned to Ushans. Therefore we have to distinguish among the
sequences of rulings and deem as more reliable those which do
interrelate and produce the necessary correlation of chronological
and logical traits. We regard as less reliable the allegation that
what is given in the name of a Yavnean, without Ushan continua-
tion, or, more commonly, what is given in the name of an Ushan,
without Yavnean antecedent, belongs to said Yavnean or Ushan.
The second important qualification has to do with materials
bearing attestations, such as marks that later authorities have
entered into the formation of units of tradition attributed to
earlier ones. Where Ushans in Tosefta, for example, claim that the
Houses of Shammai and Hillel disputed not about what is alleged
in Mishnah, but about a second and different matter, then we have
to ask whether the whole-the versions of both Mishnah and
Tosefta-may derive in fact from Ushans. The answer to tha
question is to be located within the larger sequence or structure
ideas of the tractate as a whole. If we are able to adduce evidence
that Ushans, in their own names, debate a given principle, and that
that same principle derives from or depends upon an antecedent,
that is, logically prior, principle attributed to Yavneans, then we
have good reason to believe that the Ushans indeed do carry
forward an earlier issue. Then, if in the names of Ushans it is
alleged that the Houses dispute about the same conceptions as
Ushans have derived from Yavneans, we must call into question
the certainty that the issue itself characterizes thought in the
time of the Houses, before 70.
For example, at Mishnah Makhshirin (1:2-4, 4:4-5, with im-
portant parallels at Mishnah Tohorot 9:1), we find that the Houses
treat highly sophisticated conceptions, in particular on the inter-
play between nature and the human will. These conceptions are
based upon the relativity of uncleanness to time, circumstance,
and intention. They rise above the primitive, material conceptions
of purity taboos generally characteristic of Houses' disputes and
reverse the established conception of a concrete, real contamina-
tion imparted by sources of uncleanness. Uncleanness is made
relative to something else, not absolute and uncontingent. This
troublesome phenomenon, however, turns out to be susceptible of
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The History of Earlier Rabbinic Judaism

a simple solution. A close reading of the matter in the light of

pericopae assigned solely to Ushans shows that the diverse Ushans
attribute to both Houses conceptions distinctive to the Ushans
themselves. Specifically, what is particular to Usha, unknown at
Yavneh, but assigned by Ushans to the Houses, is the matter of
whether or not we decide upon the basis of what one has done the
character of his prior intention, that is, of what he intended to do.
If I take up water in order to pour it out, does my ultimate in-
tention, pouring out the water, govern the interpretation of my
original view of the desirability of the water ? If it does, then even
though, for a time, I might have wanted the water in its present
location, by my final disposition of the water I have defined that
original intention and determined that the water never was
wanted and therefore retrospectively does not impart susceptibility
to uncleanness.27 Judah, another Ushan authority, takes the dual
view that intention without action is null and that action further-
more is retrospectively determinative of the character of intention.
His son Yose, moreover, sees to it that the Houses debate the
application of this very same principle. Other Ushans, in par-
ticular Yose and Simeon, take the position that prior intention
plays a balancing role in the interpretation of the status of the
water. We do not decide solely by what one has done by the
ultimate disposition of the water. It follows that what the Ushans
attribute to the Houses is a set of positions on issues moot at
Usha and defined entirely within the agendum of thought of that
period, a century after the time we assume the Houses flourished.
The third qualification-in this case, a test of falsification-has
to do with the inner cogency and consistency of rulings assigned
to a given authority. The test I have devised derives directly from
the earliest inquiry of the Amoraim: do specific authorities'
traditions exhibit consistency, which will suggest, though not
conclusively demonstrate, that the attribution of traditions to
individuals was disciplined and not random? Or do authorities
seem to contradict themselves, in which case, assuming people are

27 The supposition of the tractate Makhshirin is that produce which is dry is

insusceptible to uncleanness. Produce which is wet is susceptible. This is further
qualified by the notion that produce which is wet is susceptible to uncleanness
only if the water used to wet it down has been drawn by intent and applied to the
produce by intent. Readers who consult the alleged scriptural foundation for this
conception, Lev. 11:34, 38, will wonder at the relationship between the written
Torah and the oral Torah contained in Mishnah, a good example of the point
made earlier (n. 5) in this connection (see my "Meaning of Oral Torah," Associa-
tion for Jewish Studies Review 1 [1976], in press).
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History of Religions

consistent, one must wonder whether attributions of sayings to

individuals are reliable? The answer is that, just as the early
Amoraim found out elsewhere, individual authorities normally do
not contradict themselves. To state matters more appropriately,
sayings attributed to a given authority generally appear to be
cogent and internally harmonious. Even more important, some of
the sayings in a given name suggest that the sage has introduced
conceptual theories of law into discrete issues, at each point
determining the rule in accord with some larger general conception
characteristic of many of his discrete rulings. But where there is
conflict, it follows that the attributions may be awry and dubious.
Open to the Amoraim but not to us was the road of harmonistic
exegesis, in which "apparently" contradictory principles in the
name of the same authority are shown to reveal a higher unity or
a deeper cogency than is exhibited on the surface. Said authority
may indeed thereby be made to express an opinion on still another
moot point not under explicit discussion. This exegetical path, of
course, when we observe that the Amoraim take it, leads us to the
conclusion that the attributions are faulty. Overall, however, the
attributions are apt to provide useful, but not probative, evidence
as to the relative priority or posteriority of sayings even where the
substance of the sayings does not permit a more searching test of
priority or posteriority.
A further descriptive historical task is to be undertaken. When
we concentrate attention on the most reliable witnesses to the
mind of the earlier rabbis, those of the first and second centuries,
we find ourselves engaged in the analysis primarily of legal texts.
Mishnah-Tosefta and related literature focus attention on halakhic
problems. Are there underlying unities of conception or definitions
of fundamental principles to be discerned within the halakhah?
No one familiar with the literature and its classical exegesis is in
doubt that there are.28 These are to be spelled out with some care,
also correlated and compared to conceptions revealed in writings
of other Jews, not solely rabbinic Jews, as well as Christians and
"pagans." When, for example, we describe primary concerns and
perennial issues inherent in laws attributed to Ushans, we find

28 This conception is deeply rooted in the classical exegesis of Mishnaic and

talmudic law. Maimonides' philosophy and his legal thought exhibit important
correlations, as Isadore Twersky has shown, so that The Guide to the Perplexed
and Mishneh Torah, his summary of the law, are reciprocally important in
exegesis. The school of talmudic exegesis associated with the name of Brisk seeks
to uncover the underlying conceptual unities of diverse legal ideas and rules
These are only two of many important precedents for what is proposed here.
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The History of Earlier Rabbinic Judaism

that, in much acute detail, rather fundamental issues of physics

are worked out, for example, the nature of mixtures, which will
not have surprised Stoic, natural philosophers.29 Again, an endur-
ing interest of Yavnean pericopae, exemplified in my allusion to
Makhshirin, is in the relationship between intention and action, an
issue both of interest to Paul and those who told stories about
Jesus, on the one side, and of concern to philosophers of disast
and rebuilding in the earlier destruction-for instance, Jeremiah
on the other. The thought of Yavneh in any event has to b
brought into relationship with the context in which the rabbis d
their work, the aftermath of the loss of the Temple, just as th
work of the Ushans, following the much greater this-world
catastrophe brought on by Bar Kokhba, must always be see
against the background of crisis. Indeed, the formation of earli
rabbinic Judaism, from its primitive beginnings after 70 to its f
and complete expression by the end of Ushan times in 170, is th
product of an age of many painful events, events deemed
the time to bear the most profound theological weight. Much of t
halakhah both can and should be interpreted in this particu
context, and many of its issues, not to be reduced to economic
social concerns, express profound thought on the inner meanings
the age itself. It follows that once the exegetical work is compl
(if provisionally) and the historical sequences of individual unit
of law fairly well established, the larger issues emergent in unde
lying unities of conception and definitions of fundamental prin
ples are to be uncovered, so that the legal materials may produc
a history of major ideas and themes, not merely sets of two
three logical-temporal sequences of minor details. That is how w
answer the question, if Mishnah was redacted circa A.D. 200, th
how do we know that anything in Mishnah derives from before
A.D. 200?

In time, when the work outlined here is done, we shall see th

outlines of the much larger history of legal, therefore religiou
ideas, the unfolding of the world view of the rabbis who creat
rabbinic Judaism. These outlines will emerge not merely f
discrete sayings, chosen more or less at random, about topic
interest chiefly to us, for example, was rabbinical ethics theon
mous or autonomous? What did "the rabbis" believe about life
after death, the Messiah, eschaton, and so on? Rather, the

29 See History of the Mishnaic Law of Purities, vol. 12, Tohorot: Literary an
Historical Problems (Leiden, 1976), pp. 206-9.
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History of Religions

morphology of the rabbinic world view will emerge inductively,

differentiated as to its historical stages and as to the distinctive
viewpoints and conceptions held by individual authorities or circles
within which that larger world view originated.
Second, a new approach to the description and interpretation of
the world view of the earlier rabbis should emerge. This proceeds
along critical-historical lines, taking account of the problems of
dating sayings, of the diversity of the documents which purport
to preserve opinions of the earlier masters, and the like. That is
important, to be sure. But there is a more important aspect of this
work.
People do not seem to realize the immense dimensions of the
evidence in our hands. We have much more than just a few sayings
on this and that. We have a vast law code, a huge exegetical
corpus in respect to the Hebrew Scriptures and their translation,30
collections of stories about authorities, various kinds of sayings
assigned to them-an extraordinarily large mass of materials. Our
approach for the first time must encompass the totality of the
evidence, cope with, take account of, sources of exceptional
density and richness. The law, as I said, is the definitive source of
the world view of the earlier rabbis. What is earliest and best
attested is Mishnah-Tosefta. Therefore, if we want to know wha
people were thinking in the first and second centuries, we have
turn, to begin with, to that document, which must serve a
criterion in the assessment of whatever first appears in the late
compilations of rabbinical sayings and stories. Books on rabbinic
Judaism which focus upon nonlegal sayings (without regard, eve
to the time at which the documents containing those sayings we
redacted) simply miss the point of rabbinic Judaism.
But the legal sayings deal with picayune and inconsequenti
matters. The major problem is to derive, from arcane and trivia
details of laws of various sorts, the world view which forms the
foundations of, and is expressed by, these detailed rules. Tha
work must be done in a systematic and comprehensive way. And
in consequence, the definition of the agendum of scholarship is
be revised, not merely in terms of the adaptation and systemati
application of methods of literary-critical, form-analytical, a
redactional-critical work hitherto unknown in this field, nor

30 I refer to the several Targumim, the relationship of which to rabbinic sourc

has yet to be systematically worked out. The appropriate methods are in hand, a
exemplified by their creator, G. Vermes, Scripture and Tradition in Judaism
(Leiden, 1961).
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The History of Earlier Rabbinic Judaism

terms of the introduction of historical-critical considerations

hitherto neglected or introduced in an episodic way and wi
dismal lack of historical sophistication-not merely in the
aspects, but in terms of its very shape and structure.31
Brown University

31 The reader need hardly be reminded that the approach outlined in this pap
is not widely shared by scholars in the various fields of talmudic learning. Bu
am unable to point to a single paper which spells out an alternative methodologi
theory or which takes up the issues addressed in this one and proposes contra
solutions to them. Large scholarly books in talmudic history, literature, religion
and even economics appear year by year without so much as a word on the natu
of the evidence and the suppositions governing its use. It is deemed unnecessa
to say what is supposed to be obvious, which is that, in the main, pretty mu
whatever we find in talmudic literature happened in the way we are told. On
within that supposition can citation and paraphrase of unanalyzed and u
criticized sources be treated as history, pure and simple. That supposition sho
not be thought politically untenable; books which take it for granted get go
reviews, those which do not in the main do not get reviewed at all in most Judai
journals. Yet opinions do change in time. After all, how many people tod
believe the world is flat ?

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