Christianity, Judaism and Other Greco-Roman Cults: Judaism After 70; Other Greco-Roman Cults; Bibliography v. 4: Studies for Morton Smith at Sixty (Studies in Judaism in Late Antiquity)

STUDIES IN JUDAISM IN LATE ANTIQUITY EDITED BY

JACOB NEUSNER

VOLUME TWELVE

CHRISTIANITY, JUDAISM AND OTHER GRECO-ROMAN CULTS P A R T FOUR

LEIDEN E. J . BRILL 1975

CHRISTIANITY, JUDAISM AND OTHER GRECO-ROMAN CULTS STUDIES FOR MORTON SMITH AT SIXTY EDITED BY

JACOB NEUSNER Professor of Religious Studies Brown University

PART FOUR

JUDAISM AFTER 70 OTHER GRECO-ROMAN CULTS BIBLIOGRAPHY

LEIDEN E. J . BRILL 1975

I S B N 90 04 04215 6 go 04 04219 9 Copyright 1975 by E. J. Brill, Leiden, Netherlands All rights reserved. No part of this book may be reproduced or translated in any form, by print, photoprint, microfilm, microfiche or any other means without written permission from the publisher PRINTED IN THE NETHERLANDS

T A B L E OF CONTENTS J U D A I S M A F T E R 70

Redactional Techniques in the Legal Traditions of Joshua ben Hananiah.

i

W I L L I A M S C O T T G R E E N , University of Rochester

The Artificial Dispute: Ishmael and A q i v a

18

G A R Y G . P O R T O N , University of Illinois

Form-Criticism and Exegesis: T h e Case of Mishnah Ohalot 2:1

30

J A C O B N E U S N E R , Brown University

T w o Traditions of Samuel: Evaluating Alternative Versions B A R U C H M . B O K S E R , University of California, Berkeley

.

R. Abbahu of Caesarea L E E I. L E V I N E , Hebrew University, Jerusalem

56

"Conjecture" and Interpolation in Translating Rabbinic T e x t s Illustrated b y a Chapter from Tanna debe Eliyyahu W I L L I A M G . B R A U D E , Providence, Rhode Island OTHER GRECO-ROMAN

46

77

CULTS

Iconoclasm among the Zoroastrians

93

M A R Y B O Y C E , University of London

Quellenprobleme zum Ursprung und Alter der Mandaer.

. .

112

K U R T R U D O L P H , Karl-Marx-Universitat, Leipzig

The Religion of Maximin Daia

143

R O B E R T M . G R A N T , University of Chicago

Dositheus, Jesus, and a Moses Aretalogy 167 S T A N L E Y ISSER, State University of New York, Binghamton BIBLIOGRAPHY

A Bibliography of the Writings of Morton Smith, to December 3i> 1973

191

A . T H O M A S K R A A B E L , University of Minnesota

Index of Biblical and Talmudic References General Index

201 220

VI

TABLE OF CONTENTS PART O N E

NEW TESTAMENT Foreword New Testament Introduction. A Critique of a Discipline

ix i

HELMUT KOESTER, Harvard University

Good News Is No News: Aretalogy and Gospel

21

JONATHAN Z . SMITH, University of Chicago

A Fresh Approach to Q WILLIAM R . FARMER, Southern Methodist University Blasphemy: St. Mark's Gospel as Damnation History

39 51

T . A . B u R K i L L , University of Rhodesia

From Isaiah 61 to Luke 4 JAMES A . SANDERS, Union Theological Seminary L u k e 12, 13-14, Tradition and Interpretation TJITZE BAARDA, Vrije Universiteit, Amsterdam " A m I a J e w ? " — J o h a n n i n e Christianity and Judaism

75 107 163

W A Y N E A . MEEKS, Y a l e University

The Kinship of John and Acts PIERSON PARKER, The General Theological Seminary A Foreword to the Study of the Speeches in Acts MAX WILCOX, University College of North Wales, Bangor L'hymne christologique de Col i, 15-20. Jugement critique sur I'^tat des recherches PIERRE BENOIT, o.p., ficole biblique et arch^ologique fran9aise Jerusalem Paul and his Opponents: Trends in Research E. EARLE ELLIS, New Brunswick Theological Seminary The Present State of Scholarship on Hebrews

187 206

226

264 299

GEORGE W E S L E Y BUCHANAN, Wesley Theological Seminary, W a s -

hington

PART

EARLY

Two

CHRISTIANITY

The Earliest Christian Communities as Sectarian Movement ROBIN SCROGGS, Chicago Theological Seminary Power through Temple and Torah in Greco-Roman Palestine

i 24

SHELDON R . ISENBERG, University of Florida

Reflexions sur le Jud6o-Christianisme

53

MARCEL SIMON, University de Strasbourg

Asia Minor and Early Christianity SHERMAN E . JOHNSON, Church Divinity School of the Pacific Peter in Rome. A Review and Position D. W . O'CONNOR, St. Lawrence University Une allusion de I'Asclepius au livre d'H6noch

77 146 161

MARC PHILONENKO, University de Strasbourg

Christ in Verbal and Depicted Imagery; A Problem of Early Christian Iconography S. G . F, BRANDON

164

T A B L E OF CONTENTS

VII

Das Thema "Vertreibung aus dem Paradies" in der Katakombe der V i a LatinaundseinjiidischerHintergrund

173

KURT and URSULA SCHUBERT, Universitat Wien

Vox Populi Voluntas Dei and the Election of the Byzantine Emperor. MILTON V . ANASTOS, University of California, Los Angeles Hypatius of Ephesus on the Cult of Images

.

181 208

STEPHEN GERO, Brown University

Contemporary Ecclesiastical Approaches to Biblical Interpretation: Orthodoxy and Pseudorthodoxy 217 ERNEST S. FRERICHS, Brown University PART THREE

J U D A I S M B E F O R E 70 Joy and Love as Metaphorical Expressions of Willingness and Spontaneity in Cuneiform, Ancient Hebrew, and Related Literatures: Divine Investitures in the Midrash in the Light of Neo-Babylonian R o y a l Grants Y o c H A N A N MUFFS, The Jewish Theological Seminary of America On the Origins of the Aramaic Legal Formulary at Elephantine . . . .

i 37

BARUCH A . LEVINE, New Y o r k University

M y t h and Midrash: Genesis 9:20-29

55

ALBERT I. BAUMGARTEN, McMaster University

The Jewish Historian Demetrios E. J. BICKERMAN, Columbia University The Tales of the Tobiads

72 85

JONATHAN A . GOLDSTEIN, University of Iowa

The Acta pro Judaeis in the Antiquities of Flavins Josephus: A Study in Hellenistic and Modern Apologetic Historiography H o R S T R. M o E H R i N G , Brown University The Archangel Sariel. A Targumic Parallel to the Dead Sea Scrolls . .

124 159

GEZA VERMES, University of Oxford

Qumran and Iran: T h e State of Studies

167

RICHARD N . F R Y E , Harvard University

The Multiform Jewish Heritage of Early Christianity

175

ROBERT A . KRAFT, University of Pennsylvania

A Note on Purification and Proselyte Baptism R. J. Z w i WERBLOWSKY, Hebrew University Jerusalem Sadducees versus Pharisees: T h e Tannaitic Sources

200 206

JACK LIGHTSTONE, Brown University

Masada: A Critique of Recent Scholarship LOUIS H . FELDMAN, Y e s h i v a University

218

R E D A C T I O N A L T E C H N I Q U E S IN T H E L E G A L T R A D I T I O N S O F J O S H U A B. H A N A N I A H WILLIAM SCOTT GREEN University of Rochester Morton Smith's observation that " T h e primary Sitz im Leben of the books of the Old Testament . . . is their role in the life of those who wrote, copied and corrected them. . . " ^ is true as well for the legal traditions of rabbinic Judaism. Those traditions were neither preserved nor handed on by accident. The meaning and importance of specific legal decisions is determined almost wholly by the context in which they appear. The creation of that context, lunvcver, usually is not the work of the sages whose rulings are reported, but that of their students and others who lived after them who shaped and transmitted their opinions. The critical study of rabbinic legal materials, which properly forms the core of research into the foundations of rabbinic Judaism, demands attention not only to the content of individual opinions, but to redactional procedures as well, for, as Professor Smith points out, "in the study of transmitted material a knowledge of the character of the transmission is prerequisite for an evaluation of the data transmitted." ^ Y e t , it is only with recent times that sustained, systematic, and selfconscious inquiry has been made into the redactional procedures reflected in discrete legal pericopae. Since such work is just beyond infancy, its results are still more suggestive than probative, and refinement and sharpening of methodological procedures continues to take place. What follows are several examples taken from the legal traditions of Joshua b. Hananiah, a major figure in firstcentury Palestinian Judaism, which demonstrate ways in which an appreciation of the motives and techniques of redactors may help elucidate some of the issues at stake in the formative period of rabbinic Judaism.

A. [Concerning] the woman [who was of Israelite descent and married to a priest] who was eating of Heave-offering—they came Morton Smith, Palestinian Parties and Politics that Shaped the Old Testament (New York, 1971), pp. 9-10. 2 Ibid., p. 4.

WILLIAM SCOTT G R E E N

and said to her, "Your husband has died," or, "[Your husband has] divorced y o u " — B. And so [concerning] the slave [of a priest] who was eating of Heave-offering, and they came and said to him, "Your master has died," or "[He has] sold you to an Israelite," or "[He has] given you as a gift," or, "[He has]freed y o u " — C. And so [concerning] a priest who was eating of Heave-offering, and it became known (NWD'S) that he is the son of a divorcee or of a halusah— D. R. Eliezer obligates [them] for the Principle and the Added Fifth. E. And R. Joshua exempts [them]. F. He [a priest] was standing and offering sacrifices at the altar, and it became known that he is the son of a divorcee or of a halusah— G. R. Eliezer says, "All the sacrifices he has offered on the altar are invalid." H. And R. Joshua declares [them] valid. I. [If] it became known that he was blemished—his service is unfit. Mishnah Terumoth 8: i ^ J. And in all cases (WKWLM §) in which the Heave-offering was in their mouths— K. R. Eliezer says, "They swallow [it]." L. R. Joshua says, "They spit [it] out (YPLTW)." M. [If] they said to him, ' Y o u have been made unclean," or "The Heave-offering has been made unclean"— N. R. Eliezer says, "He swallows." O. R. Joshua says, "He spits out." P. [If they said,] "You were unclean [at the outset]," or "The Heave-offering was unclean," or [if] it became known that the Heaveoffering was unclean produce, or First Tithe from which Heaveoffering had not been taken, or Second Tithe, or dedicated produce which had not been redeemed, or, if he tasted the taste of a bedbug in his mouth—lo, he should spit [it] out. Mishnah Terumoth 8:2^ Q. [If] he was eating of a grapecluster and went from the garden to the courtyard— R. R. Eliezer says, "He finishes." S. And R. Joshua says, "He does not finish." T. [If] it got dark on the Sabbath eve— U. R. Eliezer says, "He finishes." V. And R. Joshua says, "He does not finish." Mishnah Terumoth 8:3^ 3 Also, y. ( = Jerusalem Talmud) Terumoth 7:2; b. ( = Babylonian Talmud). Pesahim 12b, Y e v a m o t 34a, Makkot i i b ; Midrash Tannaim to Deuteronomy 26:3, ed. Hoffmann, p. 171. * Also, y. Terumoth 8:2. ^ Also, y. Terumoth 8:2, Ma'asrot 3:4; b. Besah 35a.

L E G A L T R A D I T I O N S OF JOSHUA B, HANANIAH

3

The issue which justifies the combination of these three pericopae is not a single legal topic, but a single legal problem. A - E , J-P treat the improper consumption of Heave-offering, F-I deals with the validity of the sacrifices and Temple Service of a disqualified priest, and Q-V concerns the consumption of untithed produce. All three pericopae, however, deal with the same situation: a person has done or was doing a certain act under the assumption that he was permitted to do so when it is discovered that he was not so permitted. Biblical law. Lev. 5 : 1 6 and 22:14, as well as Mishnaic law, Mishnah Terumoth 6 : 1 , specify that the accidental consumption of Heave-offering by a non-priest carries the penalty of the Principle and the Added Fifth. That is, the amount of Heave-offering consumed, the Principle, must be replaced, and the offender must pay in addition a fine of one-fifth the value of the Principle. This logically means that if it is clear that the produce consumed is Heaveoffering and that the person who consumed it is a non-priest, the penalty of the Principle and the Added Fifth automatically should be incurred. Disagreement about the application of the penalty would result, however, if the status of either the produce or the consumer was unclear. The dispute between Eliezer and Joshua in D-E evidently applies to the three cases presented in A-C. The wife and the slave of the priest are permitted to consume Heave-offering by virtue of their relationship to the priest. Once that relationship ends they lose their special status. So their status actually changes. They were once allowed to eat Heave-offering; now they may not. But the situation of the hallal-priest ^ is different. In his case what changed was not his actual status, but his and others' awareness of it. His lineage was always defective; at no time was he permitted to eat Heave-offering. So the three cases are not precisely comparable. In the instance of the wife and the slave there has been a change in fact; in the case of the hallal-priest the fact of his status remains unchanged. Ehezer's ruling in D can only mean that the three are regarded as non-priests. Their consumption of the consecrated produce was improper, and they must pay the penalty. But from the context of A - E alone the scope of Joshua's exemption and his consequent view of the status of the woman, slave, and hallal-priest 8 A priest of defective lineage, technically regarded as a non-priest. See Leviticus 2117.

4

WILLIAM SCOTT G R E E N

are unclear. Are they exempt from the entire penalty or merely from the fine of the Added Fifth ? The answer will come from an analysis of F-I. In F the hallal-priest is offering sacrifices at the altar when his true status is revealed. Eliezer's rule, which fully states the issue, is that all his previous sacrifices are retroactively invalid. He was never qualified to serve at the altar. Joshua's position, which responds to Eliezer's in G, but not to F, is that the past sacrifices are valid. This can only mean that he regards the hallal-priest as a legitimate priest, at least until the point that his status is made known. If the hallal-priest is judged fit to offer sacrifices so long as his status is assumed to be proper, he is also fit to consume Heave-offering in the same period. It follows that the exemption of E means that the priest, as well as the slave and the woman, is free from any penalty whatever.'^ What is striking is the implication that self-perception determines actual status. Objectively, the hallal-priest was always disqualified from eating Heave-offering and offering sacrifices, but while he was perceived by himself and others to be a legitimate priest, he is regarded as such in fact. Part I treats the problem of the blemished priest. Although it is difficult to imagine the case of a blemished priest who did not know of his ritual infirmity while others did, the language of I and the context in which it appears suggest that this is the situation envisioned. But here no disagreement is reported. Mishnah Terumoth 8:2 J-L deals with the problem of what to do if the person is in the midst of eating Heave-offering when his status is changed. It seems clear that the ' A n d in all cases" of J is intended to apply to A, B, and C. Eliezer's rule permits the person to swallow what he is eating. Joshua's position is that he must spit out the Heave-offering. The principle behind Joshua's rule seems clear. So long as the woman, slave, and hallal-priest are unaware of their true status, they are regarded as fit to consume Heave-offering, and he may offer sacrifices. Once they become aware of their disquahfication, however, they must stop what they are doing. To continue in hght of the new information would constitute a deliberate transgression. But Eliezer's rule is problematic in this context. For if he regards the hallal-priest's sacrifices as retroactively invalid, on what basis does he permit the defective priest to continue eating? If the sacrifices never should have been offered, '' Cf. Bartinora, Tiferet Yisrael here.

L E G A L T R A D I T I O N S OF JOSHUA B. HANANIAH

5

the Heave-offering never should have been eaten. Logic suggests that he should stop eating. A s we shall see, the problem is not with the substance of Eliezer's rule, but with the context provided by the redactor. In 8:2 M-0 the issue is uncleanness of the man or Heave-offering which was not in effect when he began to eat. So the case is like that of A - B ; an actual change in status has taken place. The opinions are the same as those of K-L. But the inconsistency in Eliezer's rule is again evident. In 8: i his rule was that the unwitting offenders of A - B were required to pay a penalty. Here he permits the man to continue eating. P resembles the case of I. The act was incorrect from the outset. Again there is no disagreement. We should observe that the masters' answers in 8:2 K, L, N, O a r e in terse, one-word form: Y B L * vs. Y P L T . It seems likely that Joshua's answer was coined for mnemonic reasons. P L T actually connotes vomiting or discharge; the word for " t o spit" is RQQ.^ In Mishnah Terumoth 8:3 (Q-V) the issue is not Heave-offering, but tithes. B y walking from the garden to the courtyard the man subjects the grapecluster to tithing (See Mishnah Ma^asrot 3:5). The same effect is produced b y the coming of the Sabbath (See Mishnah Ma*asrot 4:2). In each case Eliezer's rule is that the man may continue eating. Joshua is consistent with his earlier rules; once the act is incorrect the man must stop. Again the masters' answers are terse and balanced: Y G M R vs. L ' Y G M R . W e now need to turn to an examination of the entire series to point out formal and substantive differences among the various parts, to see if it is possible to identify the units out of which the whole was composed, and to understand the motives, if any, of the redactor(s). We first note that parts C-I all deal with the same case, namely, that of a priest whose inherent disqualification to perform his duties becomes known as he is doing so. Each example is introduced b y the phrase N W D * §. If C-I appeared alone we could assume that the issue was the effect of different sorts of disqualification on the validity of priestly functions. So the congruity of content and form makes reasonable the suggestion that C-I constitute a unit. Mishnah Terumoth 8:2 J is linguistically and structurally awk^ Marcus J astro w, A Dictionary of Targumim, the Talmud Babli and Yerushalmi, and the Midrashic Literature (New York, 1926), pp. 1178-9, 1497-8.

6

WILLIAM SCOTT G R E E N

ward. It simultaneously refers to 8: i A-C which precede it and to 8:2 K - P which follow i t — a t best a cumbersome construction. Moreover, " A n d in all cases" could be dispensed with; " t h e Heaveoffering was in their mouths" would have sufficed. Since it is not essential to an understanding of the pericope, " A n d in all cases" can only serve to stress that the positions of K - L refer to the cases of A-C. The need to point out that the three cases are to be considered as examples of a single principle suggests that their combination is the work of a redactor. If C-I is a unit, as we suggested, then A - B has been added. For reasons of form, this interpretation seems likely, for unlike C, in A - B the announcement of disqualification appears in direct discourse: " . . . they said to him/her." Moreover, M, which is a continuation of J-L, has the same form as A - B . W e now recall that the cases of the woman and the slave and that of the disquahfied priest were dissimilar. The status of the woman and the slave had actually changed, but the status of the priest had not. It is clear that the combination of these different cases has made Eliezer's view in K appear inconsistent. If we assume that K - L initially referred only to A - B , Eliezer's rule becomes clear. In cases involving an actual change of status, the person who began with permission may continue what he is doing. That this is his principle is clear from Mishnah Terumoth 8:3, which deals neither with priest nor Heave-offering. It thus appears that two sets of Eliezer-Joshua disputes, each dealing with a different issue, have been combined. Mishnah Terumoth 8: i C-I treats the problem of an unapprehended disqualified priest who has performed priestly duties. There Eliezer holds that the hallal-priest may not serve under any circumstances. W h a t matters is his status. Joshua's rule, if we treat the section in isolation, is that the service of the hallal-priest is valid.^ Mishnah Terumoth 8: i A - B + 8:2 K - P and all of 8:3 constitute the second set of disputes. It deals with non-priests who are performing certain actions when a change in circumstances alters either their actual status or the nature of their act. The combination of the two sets of disputes obscures the differences among the several cases and makes the positions ascribed to Eliezer appear inconsistent. The opinions ascribed to Joshua, however, yield a consistent position. If a person acts under the impression that what ^ See b. Pesahim 72b-73a.

L E G A L TRADITIONS OF JOSHUA B. HANANIAH

7

he is doing is proper, even if it objectively is not, he has commited no wrong. B u t once he knows that his action is incorrect, he is obligated to stop what he is doing. i° ii A. Date-honey, cider, vinegar from winter grapes, and all other fruit-juices (MY P Y R W T ) of Heave-offering— B. R. Eliezer obligates [a non-priest who erringly drank any of the above for] the Principle and the Added Fifth. C. And R. Joshua exempts. D. And R. Eliezer declares [the above liquids] susceptible to uncleanness because [they come under the law of] liquid[s capable of making produce susceptible to uncleanness] (MSWM MSQH). E. Said R. Joshua, "Sages did not count seven liquids [capable of rendering susceptible to uncleanness] as do those who count up spices [that is, with imprecision], rather, they said, 'Seven [kinds of] liquid render susceptible to uncleanness, and all other liquids are clean [not capable of rendering susceptible to uncleanness].' " Mishnah Terumoth 11:2 The pericope is a composite deahng with two unrelated issues. The issue of A-C is the improper consumption of Heave-offering fruit-juice. D-E deals with the status in terms of purity of the juice itself. We turn first to an examination of A-C. As we noted earlier, the Penalty of the Principle and the Added Fifth applies in cases of accidental consumption of Heave-offering by a non-priest. Since Eliezer obhgates the consumer of the various juices for the penalty, it is clear that he regards the juices as if they were Heave-offering. Joshua's exemption in C implies that the juices are not Heave-offering. The gemara at b. ( = Babylonian Talmud) Hullin i 2 o b - i 2 i a explains the two opinions by analogy to the law of Firstfruits. Eliezer holds that since liquids which exude from Firstfruits are like the fruits themselves, hquids which exude from Heave-offering fruits are like Heave-offering, and just as the law of Firstfruits applies to all kinds of fruits, with regard to Heaveoffering the law should apply to all kinds of fruits. Therefore, all the liquids listed in A are regarded as Heave-offering. Joshua, on the other hand, holds that although Hquids which exude from Heave-offering fruit are regarded as Heave-offering b y analogy to See Jacob Neusner, Eliezer ben Hyrcanus: The Tradition and the Man, VoL I, (Leiden, 1973), pp. 60-62. (Hereafter, Eliezer I or II).

8

WILLIAM SCOTT G R E E N

the law of Firstfruits, only wine and oil may be consecrated as Heave-offering. Therefore, the only liquids made from Heaveoffering fruit which may be regarded as Heave-offering are wine and oil.^^ We may, however, discern different reasons for the masters' positions from the redaction of the superscription, A. Mishnah Terumoth 1 1 : 3 states in part: 1. They do not make dates [of Heave-offering into] honey, nor a})ples [of Heave-offering into] cider, nor winter grapes [of Heaveoffering into] vinegar. 2. And they do not alter tlie natural condition of any (KL) other fruits of Heave-offering or Second Tithe, except for olives (— oil) and grapes ( = wine) alone. . . . 1 1 : 3 I and 2 are two independent statements of law which have been placed next to one another. 1 1 : 2 A contains both the specific items listed in i of 1 1 : 3 and the language of 2 of 1 1 : 3 ("all other fruits of Heave-offering"), but in 1 1 : 2 A the problematic status of these items is assumed, not explained. The reason for the ambigious status of Heave-offering fruit juice is provided by i and 2 of 1 1 : 3 , and this suggests that A of 1 1 : 2 has been drawn from them. Datehoney, etc. should not be made from Heave-offering fruit. We are not told what happens if this is done, but onl}^ what happens if such produce is consumed by a non-priest. Objectively, the juice has been made from consecrated produce. Eliezer, therefore, regards it as consecrated and requires the full penalty. From the perspective of Joshua's rule, however, although the juice was made from Heaveoffering, it should not have been. So the man who consumed it had no reason to suspect that he had done anything improper and is therefore exempt from the penalty. We observe that B-C of 1 1 : 3 appear verbatim in D-E of Mishnah Terumoth 8:1. There, as we saw, Joshua's exemption meant that although the priest objectively was unfit to offer sacrifices or eat Heave-offering, so long as he assumed he was behaving correctly he had commited no wrong. Here the same tradition m a y be seen as demonstrating the same principle, although in a different case. Although the date-honey, etc. actually come from Heave-offering, the man may assume, for good reason, that it does not. In each case the actual status of the act is determined by the perception See Saul Lieberman, Tosefta Kifshutah, 1955) PP- 455-6.

ZeraHm, Part I (New York,

L E G A L T R A D I T I O N S OF JOSHUA B. H A N A N I A H

Q

of the actor. In each case, also, the point at issue is established by the redaction of the superscription. We turn now to D-E. In D Eliezer rules that the juice of Heaveoffering fruit is susceptible to uncleanness because, in his view, it falls under the category of liquids which can render produce susceptible to uncleanness (See Lev. 1 1 : 3 4 , 38). Joshua's answer is clear: the sages have listed seven kinds of liquid which are capable of rendering produce susceptible to uncleanness. Anything outside that list is clean. It seems likely that Joshua here refers to the list of Mishnah Makshirin 6:4. Although Joshua's lemma refutes the issue raised by Eliezer's rule, its form is inappropriate. We would have expected a simple " R . Joshua declares [them] clean ( M T H R ) . " The inappropriate form leads directly to the observation that Joshua's lemma has nothing whatever to do with the superscription, A. It makes sense here only as a refutation of Eliezer. Indeed, the relationship of Eliezer's rule in D to the superscription is also somewhat problematic, for if the items listed in A are susceptible to uncleanness because they are hquids, then whether or not they are Heave-offering is irrelevant. They will render produce susceptible to uncleanness in any case. Since the "dispute" does not really concern Heave-offering, and since Joshua's lemma responds only to Eliezer, we must look elsewhere for the origin of Eliezer's rule. Tosefta Terumoth (ed. Lieberman, p. 157, Is. 33-55) has: 1. Date-honey— 2. R. Liezer declares [it] susceptible to uncleanness because [it comes under the law of] liquid[s capable of making produce susceptible to uncleanness]. 3. R. Nathan said, "R. Liezer agrees that this does not render uncleanness because [it is a] liquid. 4. "Concerning what did they disagree? 5. "Concerning the [situation] in which he put water in i t — 6. "For R. Liezer declares [it] susceptible to uncleanness because [it comes under the law of] liquid[s capable of making produce susceptible to uncleanness]. 7. "And sages say, 'They follow the majority [of the liquid in the mixture].' " Eliezer's rule about date-honey and its susceptibility to uncleanness is preceded b y one, not shown here, in which he declares datehoney hable to tithes. This suggests that the Toseftan tradition is not exclusively concerned with date-honey from Heave-offering

10

WILLIAM SCOTT G R E E N

dates. 2 of the Toseftan pericope has Ehezer's rule of Mishnah Terumoth 1 1 : 2 D verbatim, but it refers only to date-honey. Joshua appears nowhere in the Toseftan pericope, and since Nathan's revision of Eliezer's tradition does not refer to Joshua as the authority behind the opposing tradition, I assume no Eliezer-Joshua dispute concerning date-honey was known to him. Since the issue in the Toseftan pericope is the status of normal, not Heave-offering, date-honey with respect to purity, Ehezer's rule is more intelligible there than it is in Mishnah. It therefore seems reasonable to assume that the tradition represented in Tosefta is the origin of Eliezer's rule in Mishnah Terumoth 1 1 : 2 D. How, then, has the pericope in Mishnah taken shape ? We observed earlier that elements from i and 2 of Mishnah Terumoth 1 1 : 3 had been combined to produce the superscription. A, of 1 1 : 2 . The way in which the elements were combined makes clear that the date-honey, cider, and vinegar are regarded as products of Heaveoffering fruit. It is only in this context that the Eliezer-Joshua dispute in B-C makes sense. My guess is that Eliezer's rule of D, drawn from Tosefta Terumoth 9:8, was attached later on the assumption that what was true for date-honey with reference to purity was true as well for the other items included in the list. Joshua's rule in E, which really is an independent lemma, was then appended to create the "dispute." It is important to note that Eliezer's and Joshua's rules in D-E merely have been juxtaposed and not redacted into a coherent dispute.

iii A. All utensils [of wood, leather, and bone] of householders—their measure (S'WRN) is with (B) pomegranates. [If domestic utensils were broken because of uncleanness, they are clean if the breaks in them are large enough so that a pomegranate can pass though]. B. R. Eliezer says, "In any size (BMH SHN)." C. Baskets of gardeners (QPWT HGNNYM)—their measure is with bundles of vegetables. D. And [baskets] of householders—with [bundles of] straw. E. And [baskets] of bath-keepers (BLNYN)—with [bundles of] shavings. F. R. Joshua says, "All of them—with pomegranates." Mishnah Kelim 17:1 The issue is the size of hole which will render a utensil insusceptible to uncleanness. The pericope is in two parts which relate 12 See Eliezer I, 66-70.

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II

to, but do not depend on, each other. A - B is a dispute between Eliezer and the anonymous law of A. A provides the context. All domestic utensils are clean if they suffer a breach the size of a pomegranate. Professor Neusner explains that Eliezer's rule means either "(i) A n y size of hole will suffice; or (2) the size of the hole to render insusceptible depends on the size of the object when whole, as in Mishnah Kelim 2:2." The second interpretation depends on reading the entire pericope as a unit and seeing C-E as continuations of Eliezer's rule. As we shall see, this is probably not the case. C introduces a specific case, the baskets of gardeners. But like A it has a full statement of the problem (". . . their measure is. . . " ) . It therefore provides the context for D-F, all of which are incomprehensible without it. Had A - F been redacted into a unit, C should have appeared in the same form as D-E, that is, the name of the item and the appropriate measure. So C-F should be regarded as independent of A - B . Since C-E are not illustrations of B, Eliezer's rule probably means that any size of breach will make the vessel insusceptible to uncleanness. Joshua's rule, F, glosses and disputes the rules of C-E. C-F are therefore the product of his tradents. The two units, A - B and C-F constitute good evidence for the existence of two independent redactional circles, one Eliezer's, the other Joshua's, both working on the same problem. This contention is supported by the observation that since F agrees with A, a JoshuaEliezer dispute could have been created, but it has not been.

iv A. An ohve's bulk of flesh which separates from the limb of a living being— B. R. Eliezer declares [it] unclean [in a Tent, as if it were from a corpse]. C. And R. Joshua and R. Nehunya declare [it] clean. D. A barleycorn's bulk of bone which separates from the limb of a living being— E. R. Nehunya declares [it] unclean [in contact and carrying, like that from a corpse]. F. And R. Eliezer and R. Joshua declare [it] clean. G. They said to R. Eliezer, "On what basis do you declare unclean an olive's bulk of flesh which separates from the limb of a living being?" Jacob Neusner, A History of the Mishnaic Law of Purities: Part II (Leiden, 1974), pp. 87-89.

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GREEN

H. He said to them, "We find that the hmb from a living being is like a whole corpse. Just as an olive's bulk of flesh which separates from the corpse is unclean, so an olive's bulk of flesh which separates from the limb of a living being should be unclean." I. They said to him, "No! li you have declared unclean an ohve's bulk of flesh which separates from the corpse, since indeed you have declared unclean a barleycorn's bulk of bone which separates from it, will you declare unclean an olive's bulk of flesh which separates from the limb of a living being, when indeed you have declared clean a barleycorn's bulk of bone which separates from i t ? " J. They said to R. Nehunya, "On what basis do you declare unclean the barleycorn's bulk of bone which separates from the limb of a living being?" K. He said to them, "We have found that a limb from a living being is like a whole corpse. Just as a barleycorn's bulk of bone which separates from a corpse is unclean, so the barleycorn's bulk of bone which separates from a living being should be unclean." L. They said to him, "No! If you have declared unclean the barleycorn's bulk of bone which separates from a corpse, you have also declared unclean an olive's bulk of flesh which separates from it. But will you declare unclean a barleycorn's bulk of bone which separates from the limb of a living being, when indeed you have declared clean an olive's bulk of flesh which separates from it ? M. They said to R. Eliezer, "For what reason did you divide your rules ? Either declare unclean in both cases or declare clean in both cases." N. He said to them, "The uncleanness of flesh is more virulent (MRWBH) than the uncleanness of bones, for [the uncleanness of] flesh applies both to carrion and to creeping things, which is not the case with bones." O. Another matter: A limb which has the appropriate amount of flesh renders unclean through carrying, through contact, and in a Tent; if it lacks flesh, it is [still] unclean; if it lacks bones, it is clean. P. They said to R. Nehunya, "Why have you divided your rules ? Either declare unclean in both cases or declare clean in both cases." Q. He said to them, "The uncleanness of bones is more virulent than the uncleanness of flesh, for the flesh which separates from the living being is clean, but a limb which separates from it, which is in its natural state (KBRYTW), is unclean." R. Another matter: An olive's bulk of flesh renders unclean by contact and by carrying and in the Tent, and the greater part of the bones render unclean by touching, by carrying, and in the Tent. If the flesh is lacking, it is clean. If the greater part of the bones is lacking, even though it is clean so far as the Tent is concerned, it renders unclean through contact and carrying. S. Another matter: All flesh of the corpse which is less than an olive's bulk is clean. The greater part of the corpse's bulk and members, although they are not a quarter [qab], are unclean.

L E G A L T R A D I T I O N S OF JOSHUA B. H A N A N I A H

I3

T. They said to R. Joshua, "On what basis did you declare clean in both cases?" U. He said to them, "No! If you have said so concerning the corpse, to which the greater part, quarter [qab], and corpse-matter apply, will you say so concerning the living being, to which the greater part, quarter [qab], and corpse-matter do not apply?" Mishnah 'Eduyyot 6:3 In Mishnah *Eduyyot 6:2 it is agreed that a whole hmb from a living being is unclean. The issue of 6:3 is, What if flesh or bone which has separated from the hmb of a living being does not constitute a complete limb ? Since the barleycorn's bulk of bone and the olive's bulk of flesh would produce uncleanness if separated from a corpse, the larger question underlying the pericope is the comparison of the corpse and the hving being with respect to uncleanness. According to A - F , only Joshua is consistent regarding the flesh and the bone; he holds that both are clean. Ehezer regards the flesh as unclean but the bone clean. Nehunya holds the reverse. The rest of the pericope spells out, in a beautifully balanced fashion, the reasons behind each opinion. In G Eliezer is asked the reason for his rule that the flesh is unclean. His answer (H) is that the whole limb of the living being is equivalent to the whole corpse, so flesh which separates from the limb should be treated like flesh which separates from a corpse. The comparison of the corpse to the limb produces I, which points out the inconsistency in Ehezer's position. If the hmb is hke the corpse, then both the flesh and the bone which separate from it should be unclean. But in Ehezer's view, the bone is clean. J-L are identical to G-I, but " b o n e " has replaced Eliezer's "flesh." In M Ehezer is asked to explain his inconsistency. His answer (N) is that the uncleanness of flesh is more virulent (lit: greater) than that of bones, for it applies to things to which the uncleanness of bones does not apply. O is an intrusion, but is relevant to the context. Its argument is that a limb without the requisite amount of flesh is still unclean, but if it lacks bones, it is clean. The uncleanness of flesh, therfore, is more virulent than that of bones. P repeats M, but is addressed to Nehunya. His answer in Q is the equivalent of Eliezer's in N ; the uncleanness of bones is more virulent than that of flesh. But unlike N, Q brings nothing new

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to the argument, for, as Neusner shows, Q merely repeats the arguments of C and E. This suggests that it has been constructed to match N. R likewise parallels O by focusing on the ways in which less than the requisite amount of bone wih still render unclean. O did the same with respect to flesh. S breaks the perfect balance by giving Nehunya's position a third justification. It does not, however, seem to differ much from the argument of R. In T Joshua is asked to explain his position that both the bone and the flesh are clean. His answer is that the corpse and the living being are not comparable. The greater part ( = majority) of the bones of a corpse will render unclean; a qua.rter-gab of bones from a corpse, even without the greater number, will render unclean, and corpse-matter, or corpse-dust, will render unclean. Since none of these things can be said of living beings, no comparison should be made. It seems to me that this argument is aimed at refuting the analogy between the limb from the living being and the corpse offered by Eliezer and Nehunya in H and K, respectively. If the corpse and the living being cannot be compared with respect to uncleanness, it stands to reason that a limb separated from a living being, although unclean, is not equivalent to a corpse. Therefore, the olive's bulk of flesh and barleycorn's bulk of bone which separate from it are clean. The pericope contains two forms: A-C and D-F are disputes; G-U contain the questions and developed responses characteristic of debates. But A-C and D-E, which form the context for the debate, are unusual because they contain three sages and not the usual two. This suggests that what stands behind this elegant pericope are two independent traditions, one containing Eliezer's position with regard to flesh, the other Nehunya's with regard to bones. It is also likely that the original traditions were disputes, one between Eliezer and Joshua, the other between Nehunya and Joshua. The pericope certainly has been redacted to favor Joshua, since it is his view which is dominant and unrefuted at the end. However, it is not necessarily the inherent correctness of Joshua's position which has caused the pericope to be redacted in his favor. Rather, it is that, of the three masters, only he is consistent. Both the flesh 1* Eliezer I, pp. 340-344. For a definition and discussion of forms, see Jacob Neusner, The Rabbinic Traditions about the Pharisees before yo, Vol. I l l (Teiden, 1971), pp. 5-22, 101-63, and Eliezer JI, pp. 18-62.

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I5

and bone are clean. T h a t a criterion for redaction was the consistency of the various opinions is evident from I, L, M, and P, all of which criticize Eliezer and Nehunya for "dividing" their rules. The Toseftan version of the pericope should help us understand what stands behind the Mishnaic one. 1. An olive's bulk of flesh which separates from the limb of a living being— 2. R. Eliezer declares unclean. 3. They answered R. Eliezer [with] three replies. 4. "No! If you have said so concerning a corpse, to which the greater part, quaxter[qab], [and] corpse-matter apply, will you say so concerning the limb from a living being, to which the greater part, qusiYtcr[qab] and corpse-matter do not apply?" 5. Another matter: What depends on what ? Does the hmb depend upon the flesh, or does the flesh depend upon the limb ? The flesh depends upon the limb. Is it possible that the flesh should render unclean through contact, carrying, and the Tent and that the limb should be clean? 6. Said R. Simeon, "I should be surprised if R. Eliezer declared unclean. He declared it unclean only when there is on the limb appropriate flesh, so that this and that should render unclean through contact, carrying, and the Tent." 7. A bone the size of a barley-corn which separates from the limb of a living being— 8. R. Nehunya declares [it] unclean. 9. They answered R. Nehunya [with] three replies. 10. "No! If you have said so concerning the corpse, to which the greater part, quarter[g'a&], [and] corpse-matter apply, will you say so concerning the limb from a living being to which the greater part, qua.vtev[qab], and corpse-matter do not apply?" 11. Another matter: What depends on what? Does the limb depend upon the bone, or does the bone depend upon the limb ? The bone depends upon the limb. Is it possible that the bone should render unclean through contact and carrying and that the limb should be clean ? 12. Said R. Simeon, " I should be surprised if R. Nehunya declared it unclean. He declared it unclean only where there is in the limb a bone the size of a barleycorn, so that this and that should render unclean through contact and carrying." 13. R. Joshua answered the opinions of both of them. 14. "Just as the bone and the flesh which separate from the living being, which has on it two hundred and forty-eight limbs, is clean, [concerning] a limb, on which there are not two hundred and fortyeight limbs, is it not logical that the bone and the flesh which separate from it are clean ?" 15. Rabbi replied to the words of R. Joshua, "No! If you say so

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concerning those things which separate from the hving person, for, indeed, they have separated from something which is clean, will you say so concerning those things which separate from the limb, for, indeed, they have separated from something which is unclean ?" Tosefta 'Ahilot 2:7-8 (ed. Zuckermandel, p. 599, Is. 9-23) = Tosefta "^Eduyyot 2:10 (ed. Zuckermandel, pp. 458-9, Is. 28-32, i-io) Although the present form of the Toseftan pericope probably does not stand behind the Mishnaic version, it does contain elements out of which the Mishnaic pericope probably has been built, i and 2 of Tosefta are Eliezer's rule about flesh (A-B of Mishnah), and Tosefta's 7 and 8 are Nehunya's view of bone (D-E of Mishnah). But Tosefta has no suggestion that Eliezer ruled about bone or Nehunya about flesh, so it confirms our suggestion that the two traditions originally were unrelated, 4 and 10 are Joshua's reply in the Mishnaic pericope (U), but they are not ascribed to him here, Tosefta's 5 and Mishnah's O are based on the same argument, the uncleanness of the flesh is subordinate to that of the limb itself. B u t in Mishnah the argument is reworked as a proof that the uncleanness of flesh is more virulent than that of bone, A similar relationship exists between 11 of Tosefta and R of Mishnah. Simeon's two statements seem to me not reflected in Mishnah. Tosefta's 13 and 14 present a different version of Joshua's rule. The argument is that if the flesh and the bone which separate from a living being are clean, then so are the flesh and bone which separate from the limb from a living being. The reasoning apparrently is that what is true for the whole living being is also-true for any part of it. So with respect to uncleanness the limb from a living being is more like a living being than a corpse. This seems to me a clearer statement of Joshua's basic position than U of Mishnah ( = 4 and 10 of Tosefta). Rabbi's reply (15) seems beyond the scope of the argument, for it assumes that the uncleanness of the whole limb will convey uncleanness to all parts of it. But as we observed earlier, the premise on which the entire disagreement is based is that this is not the case. In this instance Mishnah and Tosefta represent two redactional traditions which have drawn on the same materials and used them in different ways. Although Tosefta demonstrates a concern for balanced structure (1-6 and 7-12 parallel each other verbatim except for the name of the sage and the part of the limb,), it is not so well

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17

developed as Mishnah, B y combining Nehunya with Joshua in C and Eliezer with him in F, the redactor(s) of the Mishnaic pericope have created a context in which the argument about flesh and bone from the limb of a living being could be debated in terms of consistency. Such a construction is not possible in the Toseftan version. If the ascription of Mishnah's U to Joshua, as oposed to Tosefta's 14, was a matter of choice, then I suspect that U was selected because of its suitabihty to the rest of the pericope. An argument which opposes the modes of uncleanness of the corpse to those of the living being is more consistent with the rest of the pericope, especially N and Q, than is one based on the comparison of the physical characteristics of the hmb and the living being. Finally, it is important to point out that although the tradition has undergone considerable development in Mishnah, the fundamental postions of the masters have not been altered.^*"' ^® Grateful acknowledgement is made for the time and criticism offered by my teacher, Jacob Neusner, in whose graduate seminar at Brown University earlier drafts of this paper were read. The members of that seminar, Dr. Baruch Bokser, Mr. Jack Lightstone, Rabbi Shamai Kanter, Mr. Charles Primus, Mr. Joel Gereboff, and Rabbi Tzvee Zahavy offered many helpful comments. Professor Gary G. Porton, University of Illinois, Professors Robert Holmes and James R. Shaw of the University of Rochester, and Rabbi Zahavy discussed various portions of the paper in detail. The responsibility for errors of judgement and interpretation is mine.

THE ARTHHCIAL DISPUTE: ISHMAEL AND

AQIBA

GARY G. PORTON University of Illinois

I The overwhelming majority of disputed Tannaitic statements are cast in the standard dispute form, Superscription Authority X says (^WMR): " Authority Y says (^WMR):

"

The form is built from two independent lemmas. The use of the present participle, 'WMR, is characteristic of the form.^ In a true dispute, both comments should deal with the problem set forth in the superscription, and the two comments should respond to each other. M. Pe'ah 4:10 offers an example of a classic use of the dispute form. A. Which is the poor-man's share (LQT) ? B. That which falls during the time of harvesting. C. [If while] one was harvesting, he harvested a handful [or] he plucked an armful [and] a thorn pricked him and [some of the produce] fell to the ground—behold it [that which fell] belongs to the master of the house. D. [If some produce fell from] the midst of the hand or (W) [from] the midst of the sickle [during the time of harvesting]—[the fallen produce belongs] to the poor. E. [If some produce fell from] the back ('HR) of the hand or (W) [from] the back of the sickle [during the time of harvesting]—[the fallen produce belongs] to the master of the house. F. [If some produce fell from] the tip (R'S) of the hand or (W) [from] the tip of the sickle [during the time of harvesting], G. R. Ishmael says: "[The fallen produce belongs] to the poor." H. R. 'Aqiba says: "[The fallen produce belongs] to the master of the house." (M. Pe'ah 4:10) Comment: The L Q T is mentioned in Lev. 23:22 and in Lev. 19:9-10. The latter passage states: When you reap the harvest of your land, you shall not reap your field to its very border, neither shall ^ Jacob Neusner, The Rabbinic Traditions about the Pharisees before 70 (Leiden: 1971), I H , pp. 1-6.

THE

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AND

'AQIBA

I9

you gather the LQT after your harvest. . . . You shall leave them for the poor and the sojourner. . . . A asks for a clarification of exactly what constitutes the LQT. B is a direct answer: The L Q T is that produce which falls during the harvest. This interpretation is probably based on the phrases when you reap and neither shall you gather the LQT after your harvest. A and B are a unit, and B is dependent upon A. The technical term L Q T does not appear in the rest of the sugya. C-H mention either the poor, * N Y Y M , or the master of the house B*L H B Y T ; they do not refer directly to the L Q T . C is independent of D-H. The latter discuss produce which fell from the hand or the sickle. C deals with produce that fell because a thorn pricked the harvester. Albeck suggests that the fallen produce is not a L Q T because it fell after the harvest was completed.^ This is not supported by the text. Bartinoro explains that such produce is not L Q T because it fell by reason of an accident and not as a result of the acts connected with the harvest.^ D-H are parallel in form and content. They deal with what happens to grain that falls from a specific part of the hand or of the sickle. D-H discuss from where the grain fell and omit any reference to the time during which it fell. In the present context, D-H seem to assume that the grain fell during the harvesting. They appear to represent a refinement of the definition of a L Q T . Since D-H employ the term ' N Y Y M instead of L Q T , it is possible that originally D-H did not belong in their present context. While they treat a problem similar to that raised in A, they need not discuss the L Q T itself; rather, they deal with produce which is similar to the L Q T . Of the three cases mentioned in D-H, Ishmael and A q i b a disagree only concerning the grain which fell from the tip of the hand or of the sickle. Ishmael says that it belongs to the poor; A q i b a rules that it belongs to the master of the house. F-H are cast in the form of a dispute. F is the superscription. G and H respond to the superscription, contain opinions which are matched opposites, poor/master of the house, contain the present participle, ' W M R , and are incomprehensible without the superscription. 2 Hanok Albeck, Sheshah Sidre Mishnah: Seder ZeraHm (Jerusalem-Tel A v i v : 1957). P- 51^ Bartinoro's commentary on the Mishnah, loc. cit.

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In his original study of the dispute form, Professor Jacob Neusner notes that this standard dispute form yields several variations: "The dispute form yields three variations. First, a common alternative is to drop the introductory superscription and to insert the "if-clause"—the statement of the issue of law or case—into the lemma of the first named authority; the lemma of the second will then depend upon the diction and content of the first. . . . A second variation is the exclusion of a second authority, leaving the first in dispute with the anonymous statement of law. . . . Third, the second named authority will be given a generalized opinion on the specific antecedent ruling in place of says, e.g.. House of Shammai say. . . . And House of Hillel permit. Here the antecedent lemma is taken for granted, as in the foregoing, but the second lemma {permit) subsumes the anticipated specific opinion. . . ." ^ With reference to the Houses' rulings, Neusner hsts another variation of the dispute: ". . .Houses' rulings are [sometimes] in the form . . . the words of the House. . . (and) the house of . . . say. The words-of form generally substitutes for House of . . . say . . . on account of redactional considerations. . ." ^ M. Pesahim 10:9 illustrates a words-of-dispute and a dispute in which the superscription has been subsumed in the first comment: A. After midnight, the Passover-Offering renders the hands unclean. B. A sacrifice which is unacceptable because of an improper intention in the mind of the officiating priest (PGWL) and the remaining [portions of a sacrifice] render the hands unclean. C. "[If] one recited the blessing over the Passover-Offering, he has freed himself from the obligation (PTR) [of reciting another blessing over the other] animal offering. [If] he recited the blessing over [the other] animal offering, he has not freed himself from the obligation [of reciting the blessing over] the Passover-Offering" —the words of R. Ishmael. D. R. 'Aqiba says: "Neither the one nor the other free him from the obligation [of reciting the other blessing]." (M. Pesahim 10:9) Comment: A - B discuss a separate issue from C-D. The issue of rendering the hands unclean is not related to the problem of the two blessings with which the dispute deals. For this reason, we need not treat A and B in our comments. ^ Neusner, op. cit., p. 6. Ibid., p. 7.

THP: A R T I F I C I A L

D I S P U T E : ISHMAEL A N D

'AQIBA

21

M. Pesah 6:3 states that a man may bring a freewill FestivalOffering, H G Y G H , when the Passover-Offering is made on a weekday. This Festival-Offering is the other animal offering to which the dispute refers. The sages discuss whether or not one must recite a separate blessing before he eats each of the sacrifices. Implicit in the dispute is the question of the relative importance of the two offerings. Are they of equal importance so that they each require a special blessing when they are eaten ? Ishmael teaches that they are not of equal value. The PassoverOffering is the more important of the two. For this reason, it requires a blessing. If one recites a blessing over the Festival-Offering, he must still recite a blessing over the Passover-Offering. Ishmael considers the Festival-Offering to be of little importance. If one recited a blessing over the Passover-Offering, he need not recite a second blessing over the Festival-Offering. The Passover-Offering is a biblical commandment, and it is a central feature of the holiday; therefore, it requires a special blessing. The Festival-Offering is optional and secondary; therefore, it does not require a special blessing. Ishmael's opinion can be compared with M. Berakhot 6:7: "This is the general rule: where there is a main thing and a secondary thing, the blessing should be said over the main thing, and it need not be said over the secondary thing." A q i b a disagrees with Ishmael. It appears that A q i b a considered both sacrifices to be of equal importance because they both had been offered to the Lord. Since both are of equal importance, both require blessings. C-D are a classic dispute. Ishmael's comment, formulated in the words-of-form, contains the superscription. A q i b a ' s statement is dependent upon that of Ishmael, for the latter contains the antecedents of the pronouns "the one or the other" in the former. The comments deal with the same problem and respond to each other. M. Hallah 4:4 offers an example of the generalized-term-dispute: A. [If] a qah of [dough of] new [flour] and a qab of [dough of] old [flour] adhere to each other. B. R. Ishmael says: "One takes [the Dough-Offering] from the middle." C. But (W) sages forbid [this]. (M. Hallah 4:4) Comment: According to IVI. Hallah 2:8, one cannot make a DoughOffering from one type of dough for another type of dough. That

22

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G.

PORTON

is, one cannot use the dough made from the new flour for the Dough-Offering for that made with the old flour. According to M. Hallah 2:6, five quarter-^a6s or more of dough are liable for the Dough-Offering. Since two qabs of dough are liable for the DoughOffering, the piece of dough made from two pieces each made from different flour is hable for the offering. The problem is how one makes the offering without violating the law of M. Hallah 2:8. Ishmael offers a simple solution. One takes the offering from the middle, from the point where the two types of dough touch. In this way, the offering will contain both types of dough. The sages forbid this practice; however, exactly what they permit is unclear. The siigya is a classic dispute. A is the independent superscription. B employs the present participle. The generalized-term response of the sages depends upon the content and diction of Ishmael's comment. M. Mo'^ed Oatan 3:8 supphes a text in which the second tradent has been omitted so that the first tradent is in dispute with an anonymous statement: A. The women may sing lamentations on the festival, but they may not clap [their hands]. B. R. Ishmael says: "Those who are close to the bier may clap [their hands]." (M. Mo'ed Qatan 3:8) Comment: The clapping of hands violates the sanctity of the festival. The problem is which takes precedent, the respect due for the festival or the respect due for the dead. Ishmael offers a compromise. Since the festival and the dead person must both be honored, only those close to the bier may clap their hands. Again this is a classic dispute. Ishmael's comment is dependent upon A, for A sets forth the essence of the problem. The preceding four examples should illustrate the basic features of a dispute. The use of the present participle and the coherence of the lemmas and the superscription are essential for a proper dispute.

IT We noted above that the dispute is the most common form in which the statements of the Tannaim were arranged and transmitted to us. In the corpora of material for which we have data, HiHel-Shammai, House of Hihel-House of Shammai,^ Ehezer6 Ibid., I and I I .

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ISHMAEL

AND

'AQIBA

23

Joshua,'^ all the disputes adhere to the classic patterns or are developments of them.^ In these materials we never or rarely find sayings cast in the form of a dispute which do not belong together. We seldom discover disputes which lack a superscription or which contain a comment which is extraneous to the topic being discussed in the dispute. B y contrast, the collection of the legal sayings attributed to R. Ishmael contain all of these poor disputes. In an earlier study of the legal traditions attributed to R. Ishmael, the present author isolated fifty-six disputes.^ Of these twenty-five percent contain unrelated statements twenty-one percent contain no superscription or some other such flaw;^! eighteen percent contain an independent statement which does not belong in the context of the dispute.12 Our present inquiry will concentrate on some examples of those sugyot which appear as disputes but which contain unrelated comments. This phenomenon underscores that a given form was employed even when the sayings did not naturally fit into the structure demanded by the form. All of the examples are taken from the earliest stratum of our material, MishnahTosefta.

A. [If a Firstling] has no testicles or if he has one testicle, B. R. Ishmael says: "If he has two sacks, he has two testicles. If he has only one sack, he has only one testicle." C. R. 'Aqiba says: "It should be placed on its buttock and squeezed (MWSYBW 'L 'KWZW WMM'K); if there is a testicle, it will eventually come forth." (M. Bekhorot 6:6) ' Jacob Neusner, Eliezer h. Hyrcanus: The Traditions and the Man (Leiden: 1973)^ Neusner notes these developments in Eliezer b. Hyrcanus, II. ' Gary G. Porton, The Legal Traditions of Rabbi Ishmael: A Form-Critical and Literary-Critical Approach (Unpublished dissertation. Brown University in Providence Rhode Island: 1973), pp. 318-346. 1" M. Kilayim 3:3, M. Terumah 4:5, M. Bekhorot 6:6, M. Shabbat 15:3, M. Sukkot 3:4, M. 'Abodah Zarah 1:2, M. Bekhorot 6:12, M. Niddah 3:7, M. Sheqalim 4:3, b. Baba Qama i i 8 b , M. Kelim 2:2, Tos. Ketubot 1 2 : 3 , M. Baba Batra 6:4, M. Shabbat 2:2. ^1 Tos. Kilayim 3:2, M. Kilayim 3:3, y. Kilayim 3:6, M. Miqwaoth 8:3, y. Nedarim 3:6, 11:6, and 11:9, Tos. Kila^nm 3:2, y. Pesah 5:1, b. Baba Qama 33a, M. Niddah 6 : 1 2 , y. Pesah 7:1. 12 M. Shabbat 15:3, M. Zabim i :2, M. Sukkot 3:4, M. Niddah 3 -.j, M. Tohorot 1 : 2 , Tos. Megilah 3:11, b. Baba Qama 33a, b. Sanhcdrin 1 1 2 a , b. Makkot I 3 a - i 3 b , b. 'Abodah Zarah 51b.

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Comment: At first glance, this appears to be a classic dispute. A is the superscription, and the opinions of the two sages appear with the present participle. Upon examining the content of the various comments, however, we discover that none of the statements belong in the same context or deal with the same issue. A is an element in the hst which begins in M. Bekhorot 6 : i . The list enumerates those animals which are unfit to be considered as Firstlings; see E x . 13:2, 22:29-20, 34:19-20, Num. 18:15-18, and Deut. 15:19-20. In the context of the list, A means that an animal which has one or no testicles cannot be considered as a Firstling. If A were the superscription of a dispute, the sages in B and C should discuss the status of the animals described in A. For example, B might read: R. Ishmael says: " I t is a Firstling." C might respond, R. A q i b a says: " I t is not a Firstling." B and C, however, do not treat the status of the animals mentioned in A. In fact, they deal with different animals from A and with different issues. Ishmael's comment, B, indicates how one can determine whether or not an animal has one or two testicles. While one can infer that an animal with no sack will have no testicles, B contains no specific reference to an animal with no testicles. This is significant, for such an animal is mentioned in A. While B omits a reference to one of the animals mentioned in A, the former treats an animal not found in the latter comment: the animal with two testicles. It appears that B responds to a question of how one determines the number of testicles an animal possesses. C, A q i b a ' s comment, responds neither to A nor to B. Like B, C does not discuss the status of the animals mentioned in A ; that is, it does not treat A as the superscription of a dispute. Unlike B, C seems to recognize the problem of an animal with no testicles. The second clause of C, if there is a testicle , , , , implies that there may not be a testicle. While B refers to an animal with one or two testicles, A and C deal with animals which may not have a testicle. C may respond to a question of how one determines whether or not there is a testicle in the sack. Although the sugya is cast in the form of a dispute, three separate issues are discussed. Each comment responds to a different problem. A deals with the status of an animal with one or no testicles. In its present context the issue is whether or not such an animal can be a Firstling. B and C ignore the problem of the Firstling. B explains the w a y one determines whether an animal has one or two

THE ARTIFICIAL

D I S P U T E : ISHMAEL A N D

'AQIBA

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testicles. C indicates how one discovers whether or not the sack contains a testicle. The sayings of Ishmael and 'Aqiba do not respond to each other or to the supposed superscription. Dispite the the fact that all three statements deal with the testicles of an animal, they do not belong in the same context. The fact that none of the comments responds to the other sayings in the passage proves that this is not a real dispute. The form has been employed to juxtapose three originally independent lemmas on the same general topic. 2. A. What would they do with the remainder of the surplus [of the money in] the Temple treasury? B. "They [would] buy wines, oils, and fine flours with them [and would sell these products to those who came to make private offerings], and the profit [from these sales would go] to the Temple" —the words of R. Ishmael. C. R. 'Aqiba^ says: "They [would] not engage in a business transaction (MSTKRYM) with what belongs to the Temple or (W) to the poor." (M. Sheqalim 4:3) Comment: M.. Sheqalim 4:2 delineates what was done with the money from the treasury and what was done with the surplus: "The [Red] Heifer, the Scapegoat, and the crimson thread were bought with the terumah from the treasury. The causeway for the [Red] Heifer, the causeway for the Scapegoat, the thread between its horns, [the upkeep of the] water-channel, the city walls and its towers, and the city's needs were provided for from the surplus of the [funds] in the treasury. . . . " Our mishnah discusses for what the money was used which remained after all the needs mentioned in M. Sheqalim 4:2 had been satisfied. Ishmael's answer, B, responds directly to A ; it specifies how the money was used. 'Aqiba's saying, C, is a general observation which indirectly refutes B. Ishmael is incorrect, for " t h e y would not engage in a business transaction with what belonged to the Temple or to the poor." It is significant that 'Aqiba's comment only indirectly refutes B. In a true dispute, 'Aqiba would have listed items which were purchased with the money, or he would have negated Ishmael's comment directly. It is also noteworthy that C does not respond to A, for the former does not explain what they would do with the funds. In fact, C does not directly refer to the funds mentioned in A. 'Aqiba's remark is awkward in this context. First, it is a general

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comment which could appear in any number of contexts. Second, it does not discuss the funds mentioned in A. Third, it is not a good reponse to B. Fourth, it mentions the belongings of the poor, while the other two sayings deal only with things belonging to the Temple. The problems with A q i b a ' s comment suggest that it is out of place. This dispute between Ishmael and A q i b a was created by the editor of this passage by combining a general comment attributed to A q i b a , which dealt with things belonging to the Temple and the poor, with a statement of Ishmael, which discussed the remainder of the surplus in the Temple treasury. The two comments appear to go together because Ishmael mentions business transactions for which this money w^as used, while A q i b a forbids such transactions. Unfortunately, the original locus and meaning of A q i b a ' s statement is unclear. Albeck suggests that A q i b a permitted the surplus to remain in the treasury until it was required a second time for the needs mentioned in M. Sheqalim 4:2.1^ Maimonides explains that A q i b a meant that money mentioned in our mishnah should be used in the same manner as the remainder of the terumah}'^ According to A q i b a ' s opinion recorded in M. Sheqalim 4:4, this money was used for the altar when it normally lay idle. Both answers, however, are inadequate. Neither takes into account the mention of the belongings of the poor. Since a W connects the reference to possessions of the poor with the statement about the belongings of the Temple, both were part of A q i b a ' s original lemma. This fact alone is sufficient to demonstrate that A q i b a ' s comment does not belong in this context. It is possible that C originally responded to a question such as "with what may they [priests?] engage in a business transaction ?" 3A. [If] one sells a place to his companion [in order for him] to build a house for himself, B. and thus [if] one receives [a place] from his companion [in order for him] to build for himself a house for his recently married son or (W) a house for his widowed daughter, C. "He must build it four cubits by six [cubits]"—the words of R. 'Aqiba. D. R. Ishmael says: "This is a cattle barn." (M. Baba Batra 6:4) Hanok Albeck, Sheshah Sidre Mishnah: Seder Mo'^ed (Jerusalem-Tel A v i v : 1952), p. 196. ^* Maimonides' commentary to the Mishnah, loc. cit.

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27

Comment: A and B deal with two separate cases. In the former we read about one who sells the property; in the latter the one who receives the property is discussed. A does not make any sense in this context, for it is unclear why the one who sold the property should be responsible for the size of the building. Since the two separate statements are combined by the phrase " a n d thus," we should assume that A q i b a and Ishmael deal with both situations. No matter to which of the two sayings A q i b a responds, A or B, his statement does not really answer the question implied in A or B. A q i b a should discuss the size of the parcel of land, not the dimensions of the building to be erected on the land. Perhaps A q i b a originally responded to a question like, "if he wants to build a house for his recently married son or a house for his widowed daughter. . . ." If this were the superscription, A q i b a ' s comment would make more sense. E v e n if we have correctly reconstructed the superscription to which A q i b a responded, Ishmael's comment is inappropriate. Ishmael should have offered an alternate set of dimensions. His comment that "this is a cattle barn" is inappropriate, and it could fit into a number of different contexts. There is no inherent reason for placing it in this context. Again we have a sugya which is cast in the form of a dispute. In this example, the superscription itself is unclear. Even as it stands, the superscription could not have illicited A q i b a ' s response. We further noted that Ishmael's comment is not what we would expect if this were an example of the proper use of the disputeform. W e have discussed three separate pericopae in which the dispute form has been employed to juxtapose originally unrelated comments. The examples show that all the major variations of the dispute form were utilized for this purpose. The evidence suggests that the use of the form was so important that it was followed even when the comments were not suited for its use.

Ill While the material before us tells us little about Ishmael as a person, they do suggest something about the circle(s) which preserved and transmitted his opinions. First, the forms in which Ishmael's sayings were set were those first employed with the Houses' t r a d i t i o n s . A l l the forms which appear in the Houses' Neusner, Rabbinic Traditions,

III.

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materials and which are basic to the traditions of Eliezer b. Hyrcanus 1^ occur in our pericopae. All of the variations of the dispute form which have been isolated in the sayings of these earlier sages also appear in our sugyot. Second, we find no new forms or new variations on the old forms. Third, the large percentage of poorly constructed disputes suggests that many of Ishmael's sayings originated outside the circle(s) which edited and transmitted the material. The editor(s) collected the sayings and set them into the forms they commonly employed, even though the comments often did not allow for the proper use of these forms. These facts suggest that the use of a small number of set forms was common and important to the editor(s) of the Ishmaelean pericopae. All of Ishmael's legal sayings, no matter their origin or their original form, were set in the same forms as had been used with the Houses' material and the traditions of Eliezer b. Hyrcanus. There seems to be little doubt that Ishmael's sayings were not collected and transmitted by his students. First, the large number of poorly constructed disputes indicates that Ishmael's sayings originated in circles other than the ones which edited the material. Second, we have seen that a limited number of forms were employed. Neusner has demonstrated that the dispute form and its variations are the products of circle(s) which claimed to be A q i b a n , i ' if they were not A q i b a n in fact. Third, the entire corpus of Ishmael's sayings reflect a concerted effort to place him and A q i b a in the same context. In the examples offered above, we find that sayings of Ishmael and A q i b a which were fundamentally unrelated were placed in the same context. Sixty-two percent of the sugyot previously analyzed by the present author contain Ishmael and A q i b a in real or artificial d i s p u t e s . W h i l e A q i b a appears in eighty-four pericopae, the next most common sage is Eliezer who occurs seven times.'-^ Despite the fact that Ishmael's sayings were preserved b y those who claimed descent from A q i b a , our material shows little hostility towards him. He is generally treated fairly. He is represented as 'Aqiba's equal. Both men merely state positions. Value judgments on their various rulings seldom appear. This suggests that Ishmael's Neusner, Eliezer b. Hyrcanus, II. ^"^ Neusner, Rabbinic Traditions, III. Neusner, Eliezer b. Hyrcanus, Porton, op. cit., 408. " Ibid.

II.

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29

sayings were not preserved in order to degrade him or to invahdate his ruhngs. They were preserved simply because Ishmael's sayings were important to the redactor(s) of the Tannaitic traditions. The fair manner in which Ishmael was treated by the 'Aqiban redactors argues for the reliability of the situation represented in the texts. That is, Ishmael's sayings were joined to those of 'Aqiba because the men actually debated many issues. The fact that in several instances unrelated comments of the two sages were placed in the same context also suggests the authenticity of the implied relationship between the two rabbis. The fact that unrelated comments were placed in the same context and were not changed so that they would appear to be closer together argues for the conservative nature of much of the tradition. Clearly a limited number of forms were employed b y the editors of our material. The forms necessitated that two sages be placed in the same context. While we surely do not have the actual words of these sages, we do have some evidence that once they were fixed, the sayings of the sages were not altered. They were placed in the form of a dispute even when they were inappropriate in this form. The fact that our examples are drawn from the earliest stratum of material suggests that the forms had been selected by the end of the Tannaitic period. The evidence further testifies to the conservative nature of the tradition at a relatively early period. 20 My teacher Professor Jacob Neusner and m y colleagues Professors WiUiam S. Green, Baruch Bokser, David Goldblatt, Robert Goldenberg, Shammai Kanter, and Mr. Jack Lightstone, Joel Gereboff and Charles Primus offered many valuable insights into the matters discussed above; their help is gratefully acknowledged.

FORM-CRITICISM AND

EXEGESIS

The Case of Mishnah Ohalot 2:1 JACOB NEUSNER Brotmi University As the nascent work of form-criticism of the rabbinic hterature proceeds, we find ourselves, unexpectedly, with a new tool for the exegesis of texts. I say 'unexpectedly,' because the earlier results of form-critical study, in Development of a Legend, The Rabbinic Traditions about the Pharisees before yo, and Eliezer ben Hyrcanus: The Tradition and the Man, make no considerable contribution to the interpretation of the legal texts. Yet these investigations do add to our understanding of how rabbinic literature works and contain interesting implications even for the interpretation of its substance, its laws. Once we have established a recurring literary phenomenon, then, when it is to be expected and does not occur, we must ask why. And in proposing an answer, we find ourselves in need of interpreting and understanding not merely the formal traits, but also the legal substance, of the pericope. In the present instance, I have, therefore, to provide an account of how some of the great classical commentaries interpreted a problematic text. In proposing an alternative route toward the solution of the problem, I do not for one minute suggest the alternative is superior to what has gone before. I mean only to offer another w a y — a n d not the royal road—of interpreting texts whose final meaning is not apt ever to be known to us. It is to be stressed, moreover, that the classical commentaries observed many of the literary and even form-critical phenomena explored by us. It is not common, however, for the classical commentators to introduce literary- and form-critical considerations into their interpretation of the legal sense of the pericope (though Tiferet Yisrael Y a k i n does so, for example, at Mishnah Kelim Chapter Twenty-Nine). It was my teacher, Morton Smith, who first taught me the importance of the methods of New Testament scholarship in the study of rabbinic texts. In his Tannaitic Parallels to the Gospels, moreover, he originally pointed out the importance of synoptic studies for the relationships of Mishnah-Tosefta, studies which now seem

T H E C A S E OF MISHNAH OHALOT 211

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to have made good progress. Smith's skepticism in regard to form-history, by contrast, has also been born out in current work. I have shown in A History of the Mishnaic Law of Purities, Vols. I-III (Leiden, 1974), that so far as one may test the suppositions of New Testament form-history (as distinct from form-criticism) against the data of Mishnah-Tosefta, every one of those suppositions proves utterly false. In many ways, therefore, I have sought to make my research into a commentary upon the fundamental texts of Smith's research, upon the central critical and skeptical themes of his historical thought. It is a great pleasure, therefore, to offer for the consideration and criticism of colleagues these earliest results in the introduction, into the legal exegesis of Mishnah-Tosefta, of form-critical perspectives. Our text is Mishnah Ohalot 2:1, with its corresponding Tosefta and related traditions. A. These contaminate in the Tent: (i) the corpse, and (2) an olive's bulk [of flesh] from the corpse, and (3) an olive's bulk of corpse-dregs (NSL), and (4) a ladleful of corpse-mould (RQB); (5) the backbone, and the skull, and (6) a limb from the corpse and (7) a limb from the living person on which is an appropriate amount of flesh; B. (8) a quarter-^a^ of bones from the larger part of the frame [of the skeleton] (RWB 'SMWT MRB HBNYN) or (9) from the larger number [of bones] of the body ('W MRB HMNYN). and (10) the larger part of the frame [of the skeleton] or (11) the larger number [of bones] of the corpse (WRB B N Y N W W R B MNYNW SLMT), even though there is not among them |in total] a quarter-§'a6, are unclean [in the Tent]. C. How much is the "larger number" ? One hundred twenty-five. M. Ohalot 2:1 M. 2 : 1 , 3, 5 form the backbone of the chapter as follows: 2:1: These render unclean in the T e n t ; 2:3: These render unclean through carrying and contact but not in the T e n t ; 2 : 5 : These, if they lack [the requisite quantity], are clean. The laws of Ohalot begin, therefore, with a logical sequence of rules, heavily glossed and with many interpolated pericopae, distinguishing uncleanness conveyed in the Tent from other modes of corpse-contamination. 2:5 probably is superfluous, for it simply goes over the ground of 2:1, 3. Fundamental to the list in 2:1 are the first seven items (in which case 2:5 poses a problem, all the more so because 2:5 also

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duplicates 2:3). M. 2:1 B raises its own difficulties, because of the vast selection of pertinent versions, as we shall see in a moment. As to the items on 2:i's list, the corpse and an olive's bulk of corpse pose no problems. Corpse-dregs are the mouldy flesh; corpsemould is dust or ashes which remain after a time (Maimonides). Tosefta defines matters. The backbone and skuh contaminate by themselves, even without requisite flesh, because the human form is discernible in them (Maimonides). The amputated limbs, covered with flesh from either a corpse or a living person, contaminate in the Tent. B builds on the dual mnemonic, R W B ' , R W B , and M N Y N , B N Y N . The meaning seems straightforward. A quarter-^a6 ( R W B ' ) of bones from the larger part of the bone-structure or frame of the body or a quarter-^a6 of the larger number of bones of the skeleton render unclean, even without flesh. Then, in place of R W B ' we have R B , with the same following words, R B B N Y N / M N Y N , the larger part of the body, the backbone, or the larger part of the number of bones of the body, even lacking the main bones, likewise render unclean in the Tent even though they do not add up to a qua.rter-qab. C glosses this last item, requiring 125 bones of the 248. On B Maimonides {Corpse Uncleanness 2:8-9) rules as follows: The greater part of the skeleton's frame and the greater part of its number of bones convey uncleanness like a corpse (2:8); as for the bones of a corpse among which there is neither the greater part of the number nor the greater part of the frame, yet there is of them as much as a qua.rteT-qab of bones, they convey uncleanness hke a corpse (2:9). A t 3 : 1 he reads, " T h e greater part of the frame of a skeleton; the greater number of its bones; a qusirter-qab of bones from any part, even they do not comprise the greater part of the frame or the greater number of bones. . . ." It seems, therefore, that Maimonides read B l o - i i exactly as we have it; that is, the larger part of the frame and the larger number of bones, even though they do not add up to a quarter-^'a^, are comparable in effect to the corpse. That poses no problem. B u t how does he understand B 8-9 ? He is quite clear: As for "bones among which is neither the greater part of the number nor the greater part of the frame" but which add up to a qab—exactly the opposite of M. 2:1 B 8-9. Clearly, we face a problem. What is the point of R B ' vs. R B ? If we have a majority of the

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33

small bones (RB), even though not in volume a quarter-^a6, that suffices. But does this not contradict the opening clause, a quarterqab made up of R B N M Y N — t h e larger number of bones? Again, if we are told that the larger part of the body-structure will be susceptible even though it does not add up to a quarter-^a6, then are we not given the opposite in the opening statement, that only a quarter-^-aS made up of the larger part of the body-frame is susceptible ? However we explain B N Y N , the problem remains, li we interpret it, as does Tosefta, to refer to the large bones (shoulders, things), how can we require those bones to add up to a quarter-^'a^ and then say that the larger part of those bones, even if not a quarter-^a6 in volume, produces the same effect ? And if we interpret B N Y N to mean "body-frame," the problem is the same; R B ' requires a quarter-^'a^ of the larger part of the frame, so does R B . The two clauses clearl}^ contradict one another: R B ' 'SMWT MRB HBNYN 'W MRB HMNYN versus RB B N Y N W W R B MNYNW 'L PY S'YNBHN RB^ It is very difficult to see how ' P 'L P Y does not turn the second clause against the first, unless, to be sure, the quarter-^a^ is filled of either, but the less than quartcr-^