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Scriptural, Essenic, and Mishnaic Approaches to Civil Law and Government: Some Comparative Remarks
Published online by Cambridge University Press: 10 June 2011
Extract
Even when a division draws heavily upon the facts of Scripture, as does Mishnah's division of Damages, the framers and organi resort to Scripture's theory of what is to be done with those facts. The scriptural data, while essential, simply are incidental to the formation and theory of the Mishnaic system. In no way do the theories of substance or organization of scriptural law-codes impress the framers of Mishnah, who choose their own outline to make their own points. What is further to be seen is that, when we compare the systemic constructions of another Israelite group of approximately the same time and the same place, in this instance, the Essene community represented by the so-called Damascus Covenant, which provides considerable information on the political structures envisaged in its community, we gain a measure of insight.
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References
1 My complete discussion of the relationship of Scripture to Mishnah for Mishnah's second through sixth divisions is now collected in Method and Meaning in Ancient Judaism: Second Series (Brown Judaic Studies; Missoula, MT: Scholars, 1980).Google Scholar
2 Vermes, Geza, The Dead Sea Scrolls: Qumran in Perspective [Hereinafter: Perspective) (London: Collins, 1977)Google Scholar. See also Vermes, Geza, The Dead Sea Scrolls in English [Hereinafter: DSSE] (Harmondsworth: Penguin, 1975).Google Scholar
3 My translation and commentary on the division of Damages is A History of the Mishnaic Law of Damages (Leiden, in press for 1981: Brill) 1–5Google Scholar. The outlines of the division's tractates are presented in those books. I call attention also to the historical studies of the other divisions: A History of the Mishnaic Law of Purities (Leiden: Brill, 1974–1977) 1–22Google Scholar; A History of the Mishnaic Law of Holy Things (Leiden: Brill, 1978–1979) 1–6Google Scholar; A History of the Mishnaic Law of Women (Leiden: Brill, 1979–1980) 1–5Google Scholar; and A History of the Mishnaic Law of Appointed Times (Leiden, in press for 1981: Brill) 1–5.Google Scholar
4 But note the important thesis, admirably argued, of Professor Stephen Kaufman, Hebrew Union College-Jewish Institute of Religion, Cincinnati, in Maarav 2. Kaufman holds that the organization of Deuteronomy's legal materials is meant to illustrate the Ten Commandments, in sequence. I have cited his basic thesis at length in my History of Damages vol. 5, in press.
5 Cf. “From Scripture to Mishnah: The Origins of Mishnah's Fifth Division,” JBL 98 (1979) 269–83.Google Scholar
6 Cf. “From Scripture to Mishnah: The Origins of Mishnah's Division of Women,” JJS 30 (1979) 138–53CrossRefGoogle Scholar. Note also “From Scripture to Mishnah: The Case of Niddah,” JJS 29 (1978) 135–48CrossRefGoogle Scholar, and “From Scripture to Mishnah: The Exegetical Origins of Maddaf,” Fiftieth Anniversary Festschrift of the American Academy for Jewish Research, published as PAAJR (1979) 99–111.
7 But cf. Kaufman, cited above, n. 4.
8 I have discussed the dogma that Mishnah is secondary and dependent upon Scripture and that Mishnah emerges out of the exegesis of Scripture in a number of places. The fullest and most systematic discussion is in “The Meaning of Oral Torah: With Special Reference to Kelim and Ohalot,” in my Early Rabbinic Judaism. Historical Studies in Religion, Literature, and Art (Leiden: Brill, 1975) 3–33. On the complementary dogma that Mishnah contains “oral Torah” transmitted for a long time before it was put down in writing, see, in the same place, “The Rabbinic Traditions about the Pharisees before 70: The Problem of Oral Transmission,” and “The Written Tradition in Pharisaism before 70,” 73–99. These are propositions lacking all foundation in the formal and formulary characteristics of Mishnah, as I have shown in my Purities 21: The Redaction and Formulation of Mishnah-Tosefta in the Order of Purities. In the cited studies a full bibliography of the contrary position is supplied. A forthcoming paperback edition by Brill of Early Rabbinic Judaism will make these studies more widely accessible than they have been.Google Scholar
9 The three tractates, in fact, are organized as a single unit of thirty chapters. The first fifteen deal with abnormal or illicit transactions (e.g., torts), the second fifteen, normal and licit ones (e.g., commerce, real estate). That accounts for the two treatments of bailments, for example, and for the positioning of illicit commercial transactions (fraud, usury) where they are. A simple outline of the topics of the fifteen chapters of Baba Qamma 1 through Baba Meṣi‘a 5 and the paired fifteen Baba Meṣi‘a 6 through Baba Batra 10 will indicate the true state of affairs.
10 That is a truism among Assyriologists who are learned in Talmudic law. For a systematic statement, see Muffs, Yochanan, Studies in the Aramaic Legal Papyri from Elephantine (Studia et documenta ad iura orientis antiqui peninemia 8; Leiden: Brill, 1969).Google Scholar
11 These simple facts seem to me to lay to rest any notion that someone sat down and studied Scripture in order to create Mishnah as a complement to Scripture. On the contrary, it is in accord with a preconceived plan, entirely independent of the available plan(s) of the Mosaic law codes, that the Mishnaic law code is drawn up, in detail and in the whole. Once that plan is in hand, Scripture becomes a rich resource of facts—but never of organizing and definitive categories as such.
12 Hereinafter: CD.
13 Vermes' masterful summary of the pertinent materials in the Manual of Discipline (IQS) yields the same general comparative results. But for the sake of brevity, I treat only his summary of and comments upon CD.
14 What I mean is, as noted, that Mishnah provides extensive treatments-whole divisions—on two of the three principal themes of the Priestly Code, Leviticus 1–15: (1) sacrifice and (2) cleanness, that is, Holy Things and Purities. The third of the three themes—(3) the priesthood, its consecration, function, rights, activites, and so on—is given no division, or even tractate. What we do have is ample information, e.g., on the marriage-rules of the priestly caste, on the various activities and emoluments. But that information is never cast into the form of a division of the priesthood, parallel to the sustained and rigorous treatment of the priesthood in Leviticus 1–15, and, for the period of the Mishnah, in the Letter to the Hebrews. The omission of such a principal component from the organizational structure of Mishnah is still more puzzling when we recall that the basic thematic interests of Mishnah are those of the priesthood; for example, four of the six divisions, Purities, Holy Things, Agriculture, and the festival-tractates of Appointed Times, all treat their great themes entirely in the priestly framework (indeed, have no choice but to do so). Not only so, but where priestly caste-marriages come under discussion, they are treated in a rich way; the middle third of tractate Yebamot is only one example of that fact, along with the last half of tractate Qiddušin.
15 The development of a heroic figure within the Talmudic symbolic system must await the advent of the rabbi as a principal personna and motif. Mishnah tells remarkably few stories about its named heroes. Only the corpus in the name of Gamaliel I is rich in ma‘asim or precedents, see Kanter, Shamai, Gamaliel of Yavneh (Brown Judaic Studies; Missoula: Scholars, 1980)Google Scholar. By contrast in stories told about the third- and fourth-century rabbis, we have a rich corpus of precedents, as well as stories about miracles done by holy rabbis, and similar evidence of the advent of the rabbinical figure as the principal focus of symbolic and imaginative thought. I have collected, by periods, the miracle-stories in the Talmuds in my History of the Jews in Babylonia 1–5 (Leiden: Brill, 1965–1970)Google Scholar. There I have shown not only the numerical expansion of such wonder-working fables, but also the intrusion into the deepest discourse of the law, law cases, and decisions by the courts, of the supernatural considerations operative in fables about miracles, inclusive of legal penalties. None of this plays any role whatsoever in Mishnah, which knows virtually no wonder-working figures. The ones it does know, it ridicules, e.g., Honi the Circle-Drawer in tractate Ta‘anit chapter three. Honi is treated as an absurd figure, in that he gets everything he wants, but not in the way in which he wants it. The closest parallel to Honi in the biblical literature is Balaam. The shift from the second century's collectivity of “sages” to the heroic rabbi of the third century, of course, runs parallel to that described by Brown, Peter, The World of Late Antiquity (Cambridge: Harvard University, 1977)Google Scholar. I have expanded on this point in my Damages, vol. 5.
16 I elaborate on this point elsewhere. A brief paper stating the main elements will appear in Marxist Perspectives in 1981. See also for a longer statement of the same matter in Method and Meaning, Second Series, cited above.