Revolution Or Evolution Mental Criteria in Amoraic Laws of Handling on the Sabbath*

Revolution or Evolution Mental Criteria in Amoraic Laws of Handling on the Sabbath*

Yoel Kretzmer-Raziel (Achva Academic College)

The Talmudic laws of handling objects on the Sabbath (referred to usually asmuqs e) relate to one’s mental state towards given objects as a criterion for determining the permissibility of handling them. Examination of the Mishnah and Tosefta in relation to the Talmuds reveals that this approach is an amoraic novelty, whereas the tannaitic sources base the law solely on physical criteria. This development is demonstrated through two main examples: Application of thought to set the status of an object and the consideration of one’s knowledge or awareness of the state of an object in determining its status. The emergence of this mental approach seems to have been deeply influenced, semantically and conceptually, by the tannaitc purity laws. Continuity, rather than revolution, appears to characterize this development, based in the tannaitic purity laws and applied in early and late amoraic discourse in the Yerushalmi and the Bavli.

Mishnaic law prohibits the consumption and handling of various objects on Sabbath. Usually termed muqse – set aside – these objects are forbidden for various reasons, not always evident in the Mishnah itself.1 Later statements of Sabbath law often suggest various forms of cognitive attention as the criterion for determining the ritual status of objects.2 An object – food, vessel, or natural substance – is forbidden for handling or consumption if one had not intended to use it on the Sabbath, thus mentally setting it aside. In this article, I argue that mental criteria for handling objects on the Sab- bath are an amoraic novelty. After demonstrating the lack of mental criteria in this field of tannaitic law, as opposed to various other fields of tannaitic

* This article is based on chapters 2 and 5 from my dissertation, Y. Kretzmer-Raziel, “The Category Muqse and its Development in Amoraic Literature” (Ben-Gurion University of the Negev, 2015) [Hebrew], under the supervision of Profs. Rami Reiner and Vered Noam. Many thanks to both of them for their remarks. The study was completed with the aid of a post-doctoral fund from the Kreitman School of Advances Graduate Studies at Ben Gurion University. 1 In Talmudic texts, including the Bavli, the application of the term muqse is narrow. Muqse is used usually in the context of consumption rather than that of handling and is rarely applied in discussions regarding the restrictions of handling vessels, see Kretzmer-Raziel, “The Category Muqse,” 265–72. Post-Talmudic rabbinic texts tend to use muqse as a general term concerning the prohibition of handling and consuming on the Sabbath. For convenience, I shall therefore use muqse here in the broad sense – prohibition of handling and consuming objects and materials on the Sabbath. For background and a short analysis of muqse, see J. L. Rubenstein, “On Some Abstract Concepts in Rabbinic Literature,” JSQ 4 (1997): 33–73, 51–58. 2 See below, n. 96. In these cases, tannaitic and amoraic sources are often reinterpreted as assuming intention, thought, or awareness as the premises for the law.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 387 law, I review discussions in both Talmuds in which the status of objects is determined by relating to one’s thoughts, rather than solely to his or her acts. I claim that the roots of this new approach can be traced to tannaitic purity laws, thus suggesting that internal hermeneutical forces lead to this turn. For convenience, I shall coin the two notions of muqse discussed here as “the physical approach” and “the mental approach.” Finally, I place this new interest in mental criteria in the broader context of similar tendencies in other fields of rabbinic law, particularly in the Mishnah and in the Bavli, revealed lately by various scholars. In this context, I address a wider deliberation regarding the character of conceptual development in rabbinic law – revolution- ary or evolutionary.3 Study of subjective mental criteria in the halakhah has become a central focal point in recent Talmudic research. Three decades ago, Howard Eilberg- Schwartz presented a thorough analysis of intention in the Mishnah. Eilberg- Schwartz pointed out the centrality of intention in Mishnaic law and theology, in contrast to their Biblical counterparts. He argued quite persuasively that intention plays an important role in Mishnaic ritual law, but has almost no relevance in cases of damages and civil law.4 Moreover, Eilberg-Schwartz called attention to the fact that “thought” (ḥaŝav) appears in the Mishnah almost solely in the context of sacrificial and purity laws and provides theological and social explanations for these phenomena.5 In the years past, numerous scholars have illuminated further aspects of the significance of mental criteria and the role they play in tannaitic ritual law, tackling the seeming discrepancies in the tannaitic corpus.6 Vered Noam has

3 It might be more accurate to term these two possibilities, borrowing from biology, “punctu- ated equilibrium” and “phyletic gradualism,” respectively. For an application of these two modes of evolution in analysis of legal systems, see: O. A. Hathaway, “Path Dependence in the Law: The Course and Pattern of Change in a Common Law Legal System,” Iowa Law Review 86 (2001): 601–61, 613–16, 633–45. 4 H. Eilberg-Schwartz, The Human Will in Judaism: The Mishnah’s Philosophy of Intention (Atlanta: Scholars Press, 1986). As his critics have pointed out, this distinction is not as sharp as Eilberg-Schwartz presents it and his treatment of seemingly divergent sources are not at all time satisfactory, see R. Brody, “The Human Will in Judaism: The Mishnah’s Philosophy of Intention, by Howard Eilberg-Schwartz,” JR 68 (1988): 140–41; B. S. Jackson, “The Human Will in Judaism: The Mishnah’s Philosophy of Intention, by Howard Eilberg-Schwartz,” JQR 81 (1990): 179–88. 5 Eilberg-Schwartz’s theological and social conclusions have been criticized too, see Brody, ibid. and Jackson, ibid. Earlier, J. Neusner, Judaism: The Evidence of the Mishnah (Chicago: The University of Chicago Press, 1981), 270–83, stressed the centrality of human will in the system of the Mishnah as a whole, and interpreted this centrality as a philosophical and political statement. For a critical review of this stance, see Eilberg-Schwartz, Human Will, 194–95. 6 For a survey of past and current trends in research of rabbinic mental concepts, see I. Rosen- Zvi, “The Mishnaic Mental Revolution: A Reassessment,” JJS 61 (2015): 36–58, 36–37, n. 2. Most noteworthy are the studies of Y. D. Gilat, “Intent and act in Tannaitic Teaching,” in idem, Studies in the Development of the Halakha (Ramat Gan: Bar-Ilan University Press, 1992), 72–83 [Hebrew]; idem. R. Eliezer ben Hyrcanus: A Scholar Outcast (Ramat-Gan: Bar-

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 388 Yoel Kretzmer-Raziel argued that tannaitic jurisprudence is overwhelmingly realist, supplemented with a thin nominalist layer.7 This would account for the predominantly physical approach of tannaitic law, with intention and will as secondary com- ponents. Similarly, Yair Furstenberg has maintained that human thought and intention should be seen as a secondary and diachronically later layer in the tannaitic purity system, emerging only in the first half of the second century C. E.8 From another angle, Mira Balberg’s analysis of tannaitic purity regu- lations portrays them as evolving around awareness and self-control.9 Ishai Rosen-Zvi examined the role played by thought in the Mishnaic sacrificial laws detailed in tractate Zevahim, stressing “the consistent fusion of deeds and thoughts.”10 Common to these studies is the focus on the Mishnah, com- piled around the end of the second century C. E. These scholars situate the Mishnah as a turning point, in comparison to Biblical, Qumranic and even reconstructed early tannaitic law.11 In the same vein, scholars have broadened Eilberg-Schwartz's discussion into amoraic law. Shana Strauch-Schick has found a rise in the dominance

Ilan University Press, 1984), 44–60. Important distinctions and extensive theoretical discussions may be found in O. Neuwirth, “Between Intention and Action: An Ethical and Theological Analysis of the Conception of Mitzvah in Rabbinic Literature” (Ph. D. diss. Bar Ilan University, 2012), 5–6 [Hebrew]. 7 V. Noam, “Ritual Impurity in Tannaitic Literature: Two Opposing Perspectives,” JAJ 1 (2010): 65–103, 103, alluding to the much-debated dichotomy between nominalist and realist approaches to the halakhah. Noam thus refutes the classification of Pharisaic and rabbinic law as nominalist, as suggested by D. R. Schwartz, “Law and Truth: On Qumran- Sadducean and Rabbinic Views of Law,” in The Dead Sea Scrolls: Forty Years of Research (eds. D. Dimant and U. Rappaport; STDJ 10; Leiden: Brill, 1992), 229–240. See also Noam, ibid., 70–1, 94–98, 101–2. For recent critiques of the application of the dichotomy between nominalist and realist approaches in current scholarship, see M. Balberg, “Recomposed Corporealities: Purity, Body and Self in the Mishnah” (Ph. D. diss. Stanford, 2011), 44, n. 9; A. P. Jassen, Scripture and Law in the Dead Sea Scrolls (New York: Cambridge University Press, 2014), 134–35; Rosen-Zvi, “Mental Revolution,” 38–9; Kretzmer-Raziel, “The Catego- ry Muqse,” 188, n. 172 and extensively, J. L. Rubenstein, “Nominalism and Realism Again,” Dine Israel 30 (2015): 79–120. See likewise the articles of V. Noam, A. Schremer, and D. R. Schwartz in the same volume of Dine Israel; C. Hayes, “Legal Realism and the Fashioning of Sectarians in Jewish Antiquity,” in Sects and Sectarians in Jewish History (ed. S. Stern; Leiden: Brill, 2011), 119–46; eadem, What’s Divine about Divine Law? Early Perspectives (Princeton: Princeton University Press, 2015), 195–212; below, n. 80. 8 Y. Furstenberg, Purity and Community in Antiquity: Traditions of the Law from Second Temple Judaism to the Mishnah (Jerusalem: Magnes Press, 2016), 301–12 [Hebrew]. To base this claim Furstenberg re-reads several Tannaitic sources, either by portraying the aspect of thought as late additions to the texts, or by interpreting them as not reliant on will or intention (309–11). Nevertheless, Furstenberg does not reject the possibility that intention had some significance even in the world view of early Tannaim (310, n. 124; 312, n. 127). Furstenberg (197), states that the implementation of thought as a criterion in purity laws continues to be broadened in the amoraic literature. 9 M. Balberg, Purity, Body and Self in Early Rabbinic Literature (Berkeley: University of Cali- fornia Press, 2014). 10 Rosen-Zvi, “Mental Revolution”. 11 Eilberg-Schwartz, Balberg and Rosen-Zvi; Noam; Furstenberg, respectively.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 389 of intention in the legal discourse of fourth century Babylonian sages. While in torts, intention becomes a pivotal principal, in ritual law the Talmud often considers the possibility of intention bearing consequence on ritual effectivity, only then to brush it away.12 Ayelet Hoffmann Libson has recently shown that in a variety of fields physical criteria in tannaitic literature are substi- tuted with subjective mental criteria in the Babylonian Talmud. Hoffmann Libson analyzed numerous passages in which the Bavli chooses to examine one’s specific knowledge in the given situation. Hoffmann Libson argued that in the Bavli, especially in its later strata, the interest in one’s internal world goes beyond the scope of determining legal statuses or the fulfilment of obli- gations. Contrary to tannaitic law, the Bavli relates to one’s diverse personal knowledge and thought is examined as an autonomous feature, not necessarily accompanied by a physical act.13 Strauch-Schick and Hoffmann Libson as well as others14 present the Bavli as the central arena for the rise of legal attention given to mental aspects, situating the point of change in Babylonian study centers of the fourth century onwards. Scholars, thus, are left with the question: Shall we then conceive of two distinct mental turns or should we rather talk of a gradual integration of mental criteria into the halakhah? This question may be reinforced from an earlier perspective. Alex Jassen has recently argued that sectarian Sabbath law proscribes certain forms of thought on the Sabbath, thus reinterpreting Biblical passages that seemingly refer to acts.15 If, then, thought becomes significant legally in Second Temple sectarian law, do we indeed face a “mental turn” in Mishnaic law? I shall address this question further on. Aside from the diachronic aspect, current research finds much interest in the cultural context of the alleged mental turn or turns. Balberg identified affinity between the self-control and attention demanded by the Mishnaic purity laws and their Graeco-Roman parallels.16 Likewise, Joshua Levinson associates the rabbinic focus on self-consciousness with stoic notions of the

12 S. Strauch-Schick, “Intention in the Babylonian Talmud: An Intellectual History” (Ph. D. diss. Yeshiva University, 2011). 13 A. Hoffmann Libson, Law and Self Knowledge in the Talmud (Cambridge: Cambridge Uni- versity Press, 2018). Hoffmann Libson, 186–89, further places the Bavli’s increasing interest in self-knowledge in a wider context, connecting it to the Bavli’s attitude towards rabbinic authority, tradition and diversity of opinion. 14 For instance, I. Brand, “Out of Nothing”: Transactions in Incorporeal Estate in Talmudic Law (Jerusalem: Magnes Press, 2017), 39, 44 [Hebrew]; Y. Kiel, “In the Margins of the Rab- binic Curriculum: Mastering ‘Uqsin in the Light of Zoroastrian Intellectual Culture,” JSJ 45 (2014): 1–31, 18–19. 15 Jassen, Scripture and Law, 135–49. The cases reviewed by Jassen differ from those discussed in this article in that they deal with the sanctioning of mere thoughts on the Sabbath, rather than with the ritual effectivity of thoughts. Nevertheless, the introduction of thought into a realm formerly dominated by acts is common to the sectarian sources analyzed by Jassen and to the sources discussed here. 16 Balberg, Purity.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 390 Yoel Kretzmer-Raziel self.17 This comparison has been tackled by Rosen-Zvi, who stressed the legal, rather than philosophical, nature of tannaitic sources and suggested that the Mishnah relates to a “flat self” and finds little interest in one’s inner world.18 The cultural context plays an important role in the understanding of the emergence of mental criteria in the Bavli. Strauch-Shick traced two parallels to Babylonian amoraic notions of subjectivity and intention among seemingly contemporary Sassanian jurists, contra to earlier Persian legal positions.19 Similarly, Yishai Kiel, has observed that with regard to connectivity of impurity (yadot), in both the Bavli and Zoroastrian sources, there is a shift from earlier act-based rules to later intention-based laws.20 Our investigation of the mental aspect in the laws of muqse is to be seen in light of the questions posed by the above-mentioned studies. Is the introduction of mental criteria a novelty that arises at a given point in halakic history? Can we talk of a series of mental turns, or should we rather think of the mental turn as an ongoing tendency? Should this development be seen as part and parcel of a wider shift in rabbinic law? And finally, how does the mental turn discussed here correlate to broader cross-cultural trends? I shall return to these questions towards the end of this article.

I. Mishnah and Tosefta

Over one hundred clauses in the Mishnah and Tosefta deal with the laws of handling and consuming on the Sabbath.21 The explicit conditions for an object to be regarded forbidden or permissible for handling or consuming are all physical in nature. One must set a vessel in place (m. Šabb. 3:6), sleep on the bed (t. Šabb. 14:3), fix a nail into a cane t.( Šabb. 14:3), shake or tie the bird (m. Besah 1:3; t. Besah 1:8), or at the least make a ritual announcement ahead of time in certain situations (m. Besah 1:3; 4:7; t. Besah 3:9) in order for the object to be permissible for use or handling on the Sabbath. Conversely, a

17 J. Levinson, “From Narrative Practice to Cultural Poetics: Literary Anthropology and the Rabbinic Sense of Self,” in Homer and the Bible in the Eyes of Ancient Interpreters (ed. M. R. Niehoff; Leiden: Brill, 2012), 345–67. 18 Rosen-Zvi, “Mental Revolution.” Although sound, Rosen-Zvi’s criticism has little bearing on my claims here. In response to this debate, Hoffmann Libson, Law and Self-Knowledge, 31–33, 61–63, has suggested distinctions between the inner world of amoraic and tannaitic sources, based on the work of Christopher Gill. Without rejecting Hoffmann Libson’s basic argument, it should be noted that in the cases reviewed in this article the amoraic sources fit the classification ascribed by Hoffmann Libson to the tannaitic sources. 19 Strauch-Shick, “Intention,” 211–23. 20 Kiel, “In the Margins,” 28–30. Hoffmann Libson, Law and Self-Knowledge, 173–76, con- trasts the Bavli’s innovation regarding a woman’s subjective claims against her husband with a lack thereof in contemporary Sassanian law. 21 These clauses amount to some 15 % of the clauses in tractate Shabbat (Mishnah and Tosefta) and over 35 % of the clauses in tractate Besah.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 391 broken barrel would have to be physically thrown into a heap of trash (t. Šabb. 14:2) and figs would have to be placed on the roof for them to be disqualified for use (t. Besah 4:1). Not once do these sources make use of verbs denoting mental action, such as think (ḥashav), know (yad‘a), forget (shakhaḥ), intend (hitqawen) and so forth. Likewise, differentiation between cases in this field of law is always based on physical circumstances. The Mishnah and Tosefta relate to the wholeness of an object (t. Besah 3:11), its size (t. Šabb. 13:17), its functionality,22 its content (t. Šabb. 13:17), its location,23 the extent of its dispersion (t. Besah 3:10),24 and even to its legal status25 but not once do they relate to the owner’s thoughts regarding the objects. The emphasis on physical rather than mental criteria is not characteristic of Tannaitic law at large. As mentioned above, Eilberg-Schwartz has shown that one’s mental stance plays a central role in Mishnaic ritual law.26 Thought as a legal criterion appears explicitly in over one hundred and thirty clauses in the Mishnah and Tosefta, both in verb form ḥashav( ) and and as an abstract noun (maḥashava).27 One’s thoughts regarding various objects are perceived as the basic criterion in determining their ritual status;28 the thoughts that accom- pany one’s ritual actions are deemed critical in concluding whether the ritual is valid.29 Tannaitic law, therefore, not only takes one’s thought seriously, it states so explicitly. Furthermore, tannaitic Sabbath law, in fields other than muqse, is not indif- ferent to mental criteria and the importance of one’s thoughts and intentions is stressed in a variety of contexts. Quite often, the Mishnah and Tosefta condition one’s liability for carrying out a forbidden act on his or her intention (kwn) to reach the outcome of this act.30 The law regarding consumption of food pre-

22 Functionality, including edibility, is widely related to as a criterion for use and handling, e. g., m. Šabb. 17:5–6; t. Besah 4:7–9. 23 m. Besah 4:1; 4:2; 5:7; t. Šabb. 12:16; t. Besah 1:10; 3:18. 24 t. Besah 3:10. 25 Vis-à-vis purity or tithes, e. g., m. Šabb. 18:1; 21:1; t. Šabb. 3:9; t. Besah 1:14; 3:2–3. 26 Eilberg-Schwartz, The Human Will. 27 More specifically, thought appears in 36 clauses in the Mishnah (out of over 4,000) and in 96 clauses in the Tosefta (a significantly larger work). The number is actually far greater if we take into account the numerous cases in which one’s mental state at the time of the ritual act is described in concise form, e. g., m. Pesaḥ. 5:2, “The Passover offering that was slaughtered not for its sake.” 28 E. g. m. Kelim 26:5, “The following hides are susceptible to midras impurity: a hide which one thought of (using) as a rug…” For a detailed analysis of the role of thought in Mishnaic purity laws, see Balberg, Purity, 83–7. 29 E. g., m. Zebaḥ. 1:4, “If one walks in a place he is meant to walk in (while dealing with the sacrifices) the thought invalidates (the sacrifice).” 30 E. g., one is permitted to brake a barrel open to eat the dried fruit stored in it, providing that he or she did not intend to create a vessel out of the barrel (m. Šabb. 22:3). For a detailed account of the development of the attitudes towards unintentional acts on the Sabbath, see S. Kalchheim, “‘Davar she’en mitkawen’ (a Forbidden Act which was Produced Without

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 392 Yoel Kretzmer-Raziel pared on the Sabbath is more severe if one prepared it intentionally.31 Most important, the convention in the Mishnah and the Tosefta is that the law set down chiefly addresses an unintentional Sabbath desecrater ŝogeg( ), bound to offer a sacrifice, at times even alluding to his intentional counterpart mezid( ) as “ex- empt”. Tannaitic law is at pains to specify the extent of the intention demanded in these cases.32 The absence of mental criteria, explicit or implicit, in the field of handling and consuming on the Sabbath, may therefore seem surprising. The curiosity regarding the lack of mental criteria in this field in tannaitic law increases, when we take into account that in post-Talmudic legal discourse, mental criteria are often viewed as the theoretical basis of the muqse laws. For example: The Bavli questions the permissibility of eating fallen dates from among the lower branches of a palm tree on the Sabbath, stating that they are muqse. The Talmud refutes this claim by stating, “that which is ready for birds is [also] ready for human beings, [for] one’s mind is [set] upon any- thing that is edible.”33 The Talmud offers a two-step explanation for the status of the dates. First, one must determine that the matter at hand is usable; once determined, the Bavli implements an assumption pertaining to human cognizance: one has his or her mind on any (available) edible food. This explanation presumes that the ritual status of matter vis-à-vis its consumption on the Sabbath is determined by one’s awareness of its availability, most likely before the commencement of the Sabbath. Similar statements are made by the Bavli over and again, developing into the conceptual basis of the muqse laws in post- Talmudic literature.34 My claim for the absence of mental criteria in the tannaitic discourse regarding muqse could be challenged by reviewing the language used in tannaitic texts in this context. Several verbs and adjectives used by the Mishnah and Tosefta in our context are neutral in character and could be understood as denoting mental procedures rather than physical acts. For instance, the adjective mukhan (prepared) often used in relation to the permissibility of consuming or handling on the Sabbath, might be understood as signifying the mental perception of an object rather than only its physical preparedness. In the ap-

Intent) in Tannaitic and Talmudic Literature” (Ph. D. diss., Bar-Ilan University, 2001) [He- brew]; Neuwirth, “Between Intention and Action,” 16–19, 116–18. 31 t. Šabb. 2:14–21; m. trum. 2:3. 32 E. g., m. Šabb. 11:6; t. Šabb. 11:16. See S. Lieberman Tosefta Ki-fshuta: A Comprehensive Commentary on the Tosefta, vol. 3 (Jerusalem: The Jewish Theological Seminary of Ameri- ca, 19932), 180 [Hebrew]. In contrast to the terms discussed here (mitkawen, ŝogeg, mezid), pertaining to intention, the verb “think” (hŝv) seldom appears in the tractates dealing with the Sabbath and the festivals in the Mishnah and the Tosefta. In two identical passages t.( Šabb. 16:12; t. Besah 2:9) the thought pertains to purity laws, rather than to the Sabbath law, see Lieberman, ibid., 273–74. The remaining occurrence t.( Šabb. 12:7) relates to unintentional hunting on the Sabbath, “thought” being synonymous to “intention,” see below, n. 38. 33 b. Pesaḥ. 56b. 34 See below, n. 96.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 393 pendix to this article I review the use of muhkan as well as the verbs hitqin and zimen in the Mishnah and the Tosefta and prove that their connotation is physical rather than mental. The absence of explicit mental criteria in the tannaitic discourse regarding handling and consuming on the Sabbath, could be understood as masking an essential mental approach, implicit in one’s rituals actions. One might suggest that even though mental criteria for handling objects or consuming goods on the Sabbath are not explicitly mentioned in the Mishnah and Tosefta, the underlying assumption behind these laws is that the physical criteria are only the cover up for mental ones. It could be argued that the location, content, size, function and other features of the objects discussed provide concrete evidence for the mental perception of the average individual towards the objects. Thus, for instance, figs placed on the roof would be declared forbidden due not to the mere act of placing them out of the way, rather based on the assumption that the owner had set the figs aside from his mind and had not intended to eat them on the Sabbath.35 I find this possibility unlikely, primarily due to the contrast between the vocabulary used in this field of law and that utilized in other fields, in which the Mishnah and Tosefta make wide use of verbs denoting intention and awareness. Had the underlying assumption of the Tannaim been that the movability of an object or the usability thereof is dependent on one’s mindset, some verbal trace could probably be found amongst the one hundred or so clauses dealing with these laws. In sum, tannaitic law bases its judgment of the movability and usability of objects on the Sabbath and festivals on their physical state and does not assess one’s thoughts, intentions or awareness toward objects in this context. Nevertheless, it is important to take note of the potential these tannaitic texts carry. One can easily read mental criteria into these texts, without serious incongruities. A rather smooth transition is therefore quite possible, facilitated by applying new reading assumptions towards the tannaitic texts. Reading mental criteria into tannaitic texts may in part be possible due to the centrality of the adjective mukhan in the field discussed here. Despite my claim that mukhan attests to the physical aspects of a given object, one can hardly ignore the fact that in Biblical Hebrew36 and in other languages37 the root kun bears mental as well as physical senses. Add to this the mental sense of the verb kun as a consonantal root in tannaitic literature (e. g. kiven libo). Therefore, even if the tannaitic sense of mukhan is physical, its mental connotation creates convenient conditions for rereading the tannaitic texts dealing with consumption and handling on the Sabbath.

35 As suggested by b. Šabb. 45a. 36 For instance, hekhin+lev, see Kretzmer-Raziel, “The Category Muqse,” 67. 37 In Syriac, “to be,” see J. Payne Smith (Mrs. Margoliouth, ed.), A Compendious Syriac Dic- tionary Founded upon the Thesaurus Syriacus of R. Payne Smith (Oxford: Clarendon 1903), “kun1,” 209; Kretzmer-Raziel, “The Category Muqse,” 92, n. 321.

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We shall proceed to review two major innovations in the amoraic restate- ment of the muqse laws: The emergence of thought ḥashav( ) as a means of designating an object for use on the Sabbath and the application of knowledge (yedi‘a) and awareness (da‘at) as criteria for determining the ritual status of objects.

II. Thought in the Amoraic Law of Handling on Sabbath

In contrast to the tannaitic sources, both Talmuds explicitly suggest thought38 as a criterion for determining the permissibility of handling or consuming an object on the Sabbath. We shall review several examples: …For when R. Dimi came, he said in the name of R. Ze‘iri, who said in the name of R. Ḥanina:39 Rabbi once went to a certain place and found a course of stones and said to his disciples: Go out and think (ve-ḥishvu), so that we can sit on them tomorrow; but Rabbi did not require them to perform and act. And Rabbi Yoḥanan said: Rabbi did require them to perform an act. What act did he tell to them [to perform]? R. Ammi said: He told them to arrange them in order. R. Assi said: He told them to go out and scrape them.40

38 “Thought” relates here to the verb ḥashav, which is used in this context in Hebrew and in Aramaic, in pa‘al/pe‘al and pi‘el/pa‘el, respectively. According to V. Saidon, “A Syntactic, Se- mantic and Pragmatic Study of the Verb ḥašav and Close Verbs from the Outset of Biblical Composition until the Present” (Ph. D. diss. Bar-Ilan University, 2012), 137, 156 [Hebrew], the modular meaning of intent and will, which is the chief sense of the verb ḥashav in Bibli- cal Hebrew, becomes the almost sole sense of this root in Mishnaic Hebrew (MH) in qal. For semantic and syntactic aspects of this root in MH, see ibid., 134–215; for lexical definitions of this root, see ibid., 502–4, 523–5. Eilberg-Schwartz, The Human Will, 7, distinguishes between kawana – relating to one’s consciousness during an action – and maḥashava – denoting one’s consciousness before performing an act. He therefore translates ḥashav as “plan.” Balberg, Purity, prefers to translate ḥashav as “thought,” for the reasons given there, 212, n. 45. Furstenberg, Community and Purity, 307, n. 115, reservedly suggests another distinction, following C. Albeck: Whereas kawana describes the manner in which an act is per- formed, maḥashava represents one’s direct consciousness, as a contrast with ma‘ase (deed). Y. Sagiv, “Studies in Early Rabbinic Hermeneutics as Reflected in Selected Chapters in the Sifra” (Ph. D. diss., Hebrew University of Jerusalem, 2009), 90, n. 23 (Hebrew), claims that in in light of the Tosefta, the distinction between the two is not so clear. However, it should be noted that unlike maḥashava, kawana almost never appears in tannaitic sources in noun form, see L. Moscovitz, Talmudic Reasoning: From Casuistics to Conceptualization (Tübingen: Mohr Siebeck, 2002), 299, n. 31. In the sources cited by Sagiv, the verb kwn and the noun maḥashava complement each other and might be viewed as carrying the same meaning (e. g. t. Šabb. 12:7). Cf. Neuwirth, “Between Intention and Action,” 5–6; Rosen-Zvi, “Mental Revolution,” 40, n. 22; Hoffmann Libson, Law and Self-Knowledge, 42. 39 Following the version of all four extant manuscripts, contra the version in the printed editions. 40 b. Šabb. 125b.

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According to R. Ḥanina’s tradition in the Bavli, Rabbi told his students to think of the course of stones, probably in the sense of “plan to use it,” without requiring an act. Following R. Yoḥanan’s tradition, however, Rabbi did indeed require an act. Similar diverging traditions appear in the Yerushalmi: …For R. Ḥanina said: We were ascending with Rabbi to Ḥamat Gader and he told us: Choose pebbles and you shall be permitted to handle them tomorrow. R. Ze‘iri said: [Not] until he scrapes them finely; Ḥaveraia said: [Not] until he scrapes them roughly; The sages of Sepphoris said: [Not] until he thinks ad( she-yaḥashov). R. Yoḥanan said: [Not] until they have the properties of a vessel (to’ar keli).41 Unlike the Bavli, in the Yerushalmi thought is not mentioned in R. Ḥanina’s tradition itself, but is merely offered as one of the four alternative interpreta- tions for Rabbi’s instruction. Therefore, it would seem that Rabbi’s saying in Bavli has been reworked, integrating the instruction to think into the saying itself.42 The passage quoted above from the Yerushalmi is preceded by the following: (1) Traps were spread out and were scorched by the sun. [They] came and asked Rav: What is [the law in regard] to handling them? He said: Think of them ḥashvun( ‘aleihon) to be placed beneath your heads and you are permitted to handle them. (2) Rabbi Ze‘iri in the name of Rabbi Yirmia: Heads of Beams that one thought of (she-ḥishev ‘aleihon) yesterday may be handled (on the Sabbath). (3) Rabbi Yona and Rabbi Yose went up to the sidra of Bar ‘Ula, because there was an assembly there and there were tops of beams there. They came and asked him: What is the law regarding handling them? He answered them: If you thought of them (ḥashavtem ‘aleihon) yesterday, they may be handled and if not, you are not permitted to handle them. (4) R. Ḥalafta b. Shaul recited (tanei): Shreds that one thought of yesterday may be handled. (5) R. Yose b. Shaul recited (tanei): A stack of beams that one thought of yesterday may be handled.43 Units 1–3 include three amoraic statements (memrot), in which the criterion for handling objects is “thought”. Units 4–5 quote seemingly tannaitic sources (baraitot) that state the same criterion. However, both baraitot are introduced by “Tannaim” – reciters of baraitot from the amoraic period, who do not appear at all in the tannaitic literature per se.44 Indeed, the parallel ruling of R.

41 y. Šabb. 4:2, 7a. 42 The passages in both Talmuds seem to fit Rosen-Zvi's characterization of rabbinic law (specifically pertaining to Mishnah Zevahim), “consistent fusion of deeds and thoughts,” Rosen-Zvi, “Mental Revolution,” 49. In this case the fusion lies not in the demand made by the law, rather in the amoraic discourse which places them on the same level. 43 y. Šabb. 4:2, 7a; the beginning of the passage appears in y. Besah 5:1, 62d, too. 44 The term tanei Rabbi so and so (not to be confused with tanei: Rabbi so and so says) is used in the Yerushalmi for tannaitic sources recited by Tannaim or Amoraim, but most usually by

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Yose b. Shaul in the Bavli is introduced as his own saying, rather than a recita- tion of a tannaitic dictum.45 These traditions might then quite likely be dated to the transition period between the Tannaim and Amoriam (early 3rd century C. E.). At the most, it may be said that these are marginal tannaitic traditions, which found their way to the front in the amoraic period. An orderly discussion regarding the application of thought in this context appears in the Bavli: (1) Raba b. bar Ḥanna recited (tanei) before Rav: Branches of palm trees that one cut down to be used as [fire] wood and he changed his mind nimlakh( ‘aleihon) [intend- ing] to lying down on them require tying; R. Shim’on b. Gamaliel said: they do not require tying. (2) He recited it and he said: The halakhah is according to R. Shim’on b. Gamaliel. (3) It was said (itmar) – Rav said: One ties; and Shmuel said: He thinks; and R. Assi said: One sits, even if he did not tie, even if he did not think… (4) Who is the Tanna who disagrees with R. Shim’on b. Gamliel? R. Ḥanina b. ‘Aqavia, (5) For when R. Dimmi came, he said in the name of Ze‘iri, in the name of R. Ḥanina, or others convey this tradition thus: R. Ze‘iri said in the name of R. Ḥanina: Once R. Ḥanina b. ‘Aqavia went to a certain place and found palm branches that had been cut down for [fire] wood and he said to his disciples: Go out and think ḥishvu( ), so that we can sit on them tomorrow.46 The baraita cited by Rabba bar b. Ḥannah (1) deals with a case of change of mind, regarding the purpose of certain palm branches. The view ascribed to R. Shim’on b. Gamaliel, sees the change of mind as sufficient for allowing the branches to be used on the Sabbath. The adjacent amoraic disputation (3) offers three alternatives for permitting the branches: act, thought and usage. The Bav- li continues to discuss the tannaitic opinion, in light of a seemingly tannaitic

borderline rabbis, such as R. Hošaia and R. Hiya. R. Ḥalafta ben Shaul and R. Yose ben Shaul are both Tannaim in the second sense, reciters of tannaitic sources in the amoraic period. Neither of them ever appear in the Mishnah, Tosefta, or Tannaitic Midrashim. R. Halafta appears at times as an Amora (e. g., b. Ber. 29a; y. Kil. 5:3, 30a. In both cases the MSs vary as to the terminology applied to this Rabbi), see A. Hymann, Toldot Tannaim vaAmoraim (London: The Express, 1910), 454; C. Albeck, Introduction to the Talmud: Babli and Yerushlmi (Tel Aviv: Devir, 1929), 614 [Hebrew]; idem, Mehkarim be-Baraita u be-Tosefta ve-yahasan la-Talmud (Je- rusalem: Mosad Ha-Rav Kook, 1944),˘ 76. R. Yose ben Shaul is considered˘ a pupil of Rabbi, but in the Bavli he appears at all times as an Amora, see Hymann, ibid., 736; Albeck, Introduction, 159–60. Albeck therefore concludes that Yose b. Shaul’s saying here is not a baraita. Albeck’s conclusion might be slightly refined: This liminal text, stated by a transitional period sage, was phrased in the Yerushalmi as a baraita and in the Bavli as a memra, thus constructing it as a quotation of an earlier source by Yose or as his own ruling, respectively. 45 b. Šabb. 125b. One cannot of course dismiss the possibility that in both Talmuds later ideas were read into R. Yose’s words or that this entire tradition is an anachronistic construction. This possibility gains weight from the fact that “thought” is absent from the Babylonian version of R. Yose’s statement and is only implied through context. However, the mere fact that similar traditions appear here in both Talmuds in the name of the same sage increase the likelihood that the basic tradition, however phrased and framed, has its roots in the early amoraic period. 46 b. Šabb. 50a.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 397 story dealing with the exact same case. R. Ḥanina the Amora attributes to R. Ḥanina b. ‘Aqavia the Tanna an instruction to think of the branches in order for them to be usable on Sabbath. Again, the mental criteria appear in amoraic traditions regrading Tannaim. This passage has a close parallel in the Yerushalmi: Rav said: Branches of palm trees that were cut down for lying down on do not require tying, [however if they were cut down] to be used for tents [they] require tying; R. Aba b. Ḥanna said: both for lying down on and for tents require tying… R. Ya‘akov b. Idi said in the name of R. Yonatan: …Until R. Ḥanina b. Antignas came and lectured in his town: …Branches of palm trees that were cut down either for lying down on or to be used for tents require tying. They answered: What about nediraia47 of Asqelon?! R. Yitzḥaq b. Lazar: This case is different… The words of R. [A]ba b. Ḥanna accord with R. Ḥanina… The discussion in the Yerushalmi is strikingly similar to its Babylonian counterpart.48 However, in the Yerushalmi, the criterion of thought is absent from the discussion regarding palm branches and appears only in the above mentioned amoraic interpretation for Rabbi’s instruction in Ḥamat Gader. It seems here too that ascribing the mental approach to Tannaim is a late, in this case Babylonian, impression. Another tannaitic source in the Bavli seems to hold the mental approach: Boards belonging to a householder may be handled; those of an artisan may not be handled; But if one thought (ḥishev) to place bread upon them for guests, in both cases they may be handled.49 This baraita has no parallel outside the Bavli. Its closest counterpart is found in the Tosefta: Boards of the artisan’s workshop, even though they are smoothed and even though they are fixed mutqanin( ) may be handled.50 The Tosefta relates to the physical state of the boards alone and does not take one’s thought into consideration. It would seem quite probable that the text in the Bavli was reworked, reading later amoraic conceptions into the baraita.

47 Probably boats that were placed on slips descending from the boathouse to the sea, D. Sperber, Nautica Talmudica (Ramat-Gan: Bar-Ilan University Press, 1986), 78. For alternative inter- pretations, see M. B. Lerner, “The Problematic Nedirayy'a’ of Asqelon,” Lĕšonénu 50 (1986): 232–241; E. Galilee and B. Rosen, “Millstones and Oil-Press Weights for Stabilizing Slipways from the Seabed Opposite Tel Ashqelon,” ‘Atiqot 71 (2013): 129–37, 135–36 [Hebrew]. 48 The subject matter is the same; the sages citing the traditions are of similar names; both Talmuds relate to statements made by a R. Hanina b. ‘Aqavia/b. Antignas, both of them of the generation of Yavneh, see Hyman, Toldoth, 479, 494 [for further exchanges between the two, see Kretzmer-Raziel, “The Category Muqse,” 164, n. 38]; both Talmuds compare the view of R. Abba/Rabba bar Hannah to that of R. Hanina, using similar wording. 49 b. Šabb. 49b. 50 t. Šabb. 14:4, see Lieberman, Tosefta Ki-fshuta, 231 regarding the version beit ha’oman and the opposing version she-shigman.

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The criterion of thought appears in yet another discussion in the Bavli, this time in the anonymous stratum: One may spread mats over beehives on the Sabbath: in the sun, on account of the sun and in the rain, on account of the rain, providing he has no intention of capturing [the bees]… This [law] regards those two honeycombs [that were left in the beehive]. The two honeycombs? But they are muqṣe! [The baraita] is dealing with a case when he thought of them yesterday (mi-etmal).51 The Bavli regards the honeycombs as muqse, since they were left in the beehive for the nutrition and nesting of the bees. As the excuse has it, the honeycombs would not be regarded muqse if one had thought of them as potential food yesterday. In sum, in the Talmuds one’s thought is regarded as a criterion for handling objects on Sabbath. In this, the Talmudic discourse deviates from the convention in the Mishnah and Tosefta that actions, rather than thoughts, determine the status of objects in our context. Both Talmuds retain a tradition recording ambiguity of borderline sages towards this possibility. The Bavli embeds the mental approach into tannaitic sources, at times based upon their amoraic interpretation, as can be traced through comparison to the Yerushalmi. The criterion of thought appears in a (seemingly Babylonian) baraita, in the sayings of early and middle Amoraim (R. Ḥaninah, Rav, Shmu’el; R. Yirmia, R. Yose and R. Yona) and in anonymous reasoning. In contrast to other instances of the introduction of mental criteria in the halakhah, this development may not then be attributed neither to the third and fourth generation of Amoraim nor to the supposedly late anonymous stratum.52 Thought as an active means for altering the status of an object, vis-à-vis its handling on the Sabbath, seems to have emerged in the early amoraic period, in Palestine and Babylonia.

What was the basis for this novel amoraic criterion?

As stated above, thought as a legal criterion appears in over one hundred and thirty clauses in the Mishnah and Tosefta.53 Over 90 % of these occur in the orders of Holies and Purities54 and most of the other instances relate to topics

51 b. Šabb. 43b and in almost the same words in Besah 36a. In Šabb. the word mi-etmal is attested only in MS Ox. The MSs inBe sah vary too on this point. Genizah fragment Ox. Heb. 52 for Besah does not include the discussion concerning the honeycombs, but this fragment often abbreviates Talmudic passages, see A. Tal, Bein“ Talmud le-Qitzur: Megilat Genizah le-Masekhet Betzah,” Ginze Qedem 7 (2011): 75–143, 91–3; 82, n. 36; Kretzmer-Raziel “The Category Muqse,” 35–6. 52 Above, nn. 14–16. 53 Above, n. 27. 54 For the three occurrences of ḥšv as a ritual demand in tractates Šabbat and Besah in the Tosefta, see above, n. 32 and bellow, n. 67.

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Seeds Festival(s) Women Damages Holies Purities Total Mishnah 1 0 0 1 11 23 36 Tosefta 4 5 0 1 52 34 96 Total 5 5 0 2 63 57 132

In table no. 2 we see the distribution of in the various tractates of the orders Holies and Purities:

Zevahim Menahot Other Kelim Ahelot Tohorot Makhshirin ‘Uqsin Other Total Tractates Tractates in Holies in Purities Mishnah 7 4 0 7 4 3 3 4 2 34 Tosefta 25 26 1 11 4 7 3 4 5 86 Total 32 30 1 18 8 10 6 8 7 120

Of special relevance to our issue are the cases in which objects of neutral or ambiguous status are affected by one’s thought. One such case can be found in tractate Tohorot: A rule was said regarding purities: All that is specific meyuḥad( ) as human food is impure, until it is no longer edible by a dog; and all that is not specific as human food is pure, until one specified it (yeyaḥadenu) for human beings.

55 Cf. Eilberg-Schwartz, Human Will, 175–80. According to Eilberg-Schwartz, in these two fields of law alone are two essential conditions fulfilled, namely the human ability to name and the inability to set the status of an object according to social norms. The absence of thought from the order of Women, despite its dealing with classification of status and the difficulty to determine the status by norm, is explained by the fact that women have a status from birth (daughters of their fathers) and that classification by thought is only for statusless objects. This explanation is not necessary and one could argue conversely that thought can only be applied to inhuman objects. This may be demonstrated by the fact that the status of slaves is never determined by thought in tannaitic sources. The major difference between the function of intention in ritual law and in torts or property law lies in that in inter-personal laws a human court must be persuaded as to one’s intention in the past, the proving of which is very difficult. Hence the reluctance of legal systems to ascribe major significance to intention in these fields of law. For the ritual system, interested more in one’s inner responsibility than in her or his standing before a human court, the burden of proof is almost superfluous. Sagiv, “Studies,” 90. n. 24, reviewed Eilberg-Schwartz’s approach critically, showing that maḥashava appears in legal fields other than Purities and Holies in tannaitic literature. However, these occurrences are very few and thought clearly does not carry the same weight in other fields as it does in the laws of Purities and Holies. For further analysis of the place of intentionality in Purity laws, see I. Gruenwald, Rituals and Ritual Theory in Ancient Israel (Leiden: Brill, 2003), 165–70. For the role on intention in sacrificial law, see below, n. 66.

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How is this? A fledgling that fell into a wine vat and one thought ḥashav( ) to lift it out for a gentile [to eat] – it is impure, for a dog – it is pure…56 The Mishnah relates to a liminal case, as the bird that drowned in the wine might not seem very appetizing. Its status as food shall therefore be determined by one’s intention toward it, at the time of its removal from the wine. Since the bird was not ritually slaughtered, it is not kosher. The owner could then offer the bird to a gentile, implying that he regarded it as fit for human consumption, or feed a dog with it, implying that he did not regard the bird as human food.57 As I have shown elsewhere, another passage in the Yerushalmi reveals that this Mishnah was viewed by Amoraim as relevant for the laws of the Sab- bath.58 Two disciples of R. Yoḥanan phrase varying traditions of their mas- ter regarding handling on the Sabbath using the distinction meyḥuad/yiḥado found in this Mishnah alone. Mishnah Tohorot continues to distinguish between thought and deed: If the deaf, the imbecile or the minor thought of it [as food] it is pure;59 If [one of the above] lifted it, it is impure, since they have action [= their action is ritually effective] and they do not have thought [= their thoughts are not effective]. This distinction is found time and again in the order of Purities, especially in tractate Kelim: All vessels become impure [= susceptible to impurity] by thought, and cannot be released from their impurity except by a transforming act. An act annuls the effect of an act and that of a thought, but thought does not annul the effect neither of an act nor of a thought.60 This rule is widely applied in tractate Kelim in the Mishnah and Tosefta, solely in regard to neutral objects, whose functions are not normatively prescribed. The rule is based on two assumptions: a) Only objects of culture,61 useful to humans,62 are susceptible to impurity; b) The status of objects is determined by their standard or specified purpose.

56 m. Tehar. 8:6. 57 Cf. Levinson, “From Narrative Practice,” 350; Rosen-Zvi, “Mental Revoultion,” 53, n. 67. This Mishnah has a close parallel in m. Seb. 8:1. 58 Y. Kretzmer-Raziel, “The Impact of Purity Laws on Amoraic Laws of Handling on the Sab- bath” HUCA 87 (2017): 179–202, 195–196; idem, “The CategoryMuqs e,” 136–7. 59 The Mishnah is translated here from the printed version extant in the modern editions of the Mishnah and the Bavli. The early autonomous manuscripts of the Mishnah read “If one thought to feed it to the deaf, the imbecilic or the minor, it is pure.” 60 m. Kelim 25:9. 61 Y. Kretzmer-Raziel, “Handling Vessels on the Sabbath: Muqse and Carrying between Do- mains,” Iggud 1 (2008): 315–27, 319–20 [Hebrew]. 62 J. Neusner, A History of the Mishnaic Law of Purities, pt. 1 (Leiden: Brill, 1974), 1 and in many other instances in his studies; Eilberg-Schwartz, Human Will, 96; Balberg, Purity, 76.

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In regular cases, an act that completes the creation of the vessel renders it susceptible for impurity. But when the physical completion of the object allows for various options of usage, its status is determined by one’s intent.63 Similar principles are applied in the laws of validation of foods to be susceptible to impurity by liquid (hekhsher mashqin): All foods that are specific meyuḥadin( ) for human beings require validation and do not require thought. One who cuts [flesh] from a human being, from a domesticated animal, from a beast, from fowl, from the carcass of impure [= non-kosher] fowl; the fat in the villages and all vegetables…all these require thought and validation…64. In this Mishnah too, the thought or intent is demanded only if the object is not clearly accepted as human food.65 As mentioned above, the demand for thought is wide spread in the order of Holies, almost as much as in the order of Purities, in the Mishnah and even more so in the Tosefta. However, in our context the occurrences in the order of Purities are of greater relevance. In tractates Zevahim and Menahot in the order of Holies thought and lack of thought are demanded as part and parcel of the set of actions that compose ritual procedures, while the adequacy of the procedure may influence both the status of the object and the fulfilment of the religious obligation by the sacrifier.66 In contrast, in purity laws thought might be a condition for a ritual result, but this result is not a fulfilment of a religious requirement and therefore lacks religious merit. The susceptibility of an object to impurity might be determined by thought, but this says nothing in regard to its religious value.

63 This is true in general regarding the implementation of thought or intent in the Mishanh, see Eilberg-Schwartz, Human Will, 118–20 and his reservations in n. 29. I find the asser- tion made by Rosen-Zvi, “Mental Revolution,” 53, n. 67, “thought is always mandatory in order to make a utensil susceptible for impurity” (and similarly by Balberg, Purity, 82–5; Levinson, “Narrative,” 351) inaccurate. The opposite is explicitly stated in m. Kelim 17:15, which bases the susceptibility of impurity on the physical features of an object, stressing that even if a person of no thought creates the object it is nonetheless impure. The necessity of thought in ambiguous cases only is implicit in many clauses in the Mishnah and Tosefta, see for instance: m. Kelim 26:5–8, in which thought is required solely since the physical features of the hide do not reveal its standard usage. 64 m. ‘Uq. 3:1–3. The Mishnah continues to list the cases in which thought is required and validation is not and those in which neither are required. 65 The same goes for determining the relationship between will and action, at the time of bringing food into contact with water. The Mishnah relies on one’s intent only when pouring the water on the food is not the obvious intent of the act, see for instance m. Makŝ. 4:7; Eilberg-Schwartz, Human Will, 132–36. 66 For discussions of the place of thought in Mishnaic Sacrificial law, see Sagiv, “Studies,” 89–91; Levinson, “Narrative,” 351–2; Rosen-Zvi, “Mental Revolution,” 46–51 and the previous scholarship cited, ibid., 46 n. 36, 48–9, n. 51–3; M. Balberg, Blood for Thought: The Re- invention of Sacrifice in Early Rabbinic Literature (Oakland: University of California Press, 2017), 31–49.

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In that respect, there is close affinity between thought in the amoraic context of handling objects on Sabbath and thought in the tannaitic context of the purity of vessels, specifically. While in other contexts of purity laws, such as validation by liquids, thought grants significance to the act, in the laws of vessels, thought might in some instances actually replace the act. One’s thoughts determine the mundane purpose of an object, and there by set its ritual status. Classifying the legal ritual status of the object depends, therefore, on one’s prior thought towards the object. In the purity laws, thought precedes the contaminating contact; in the Sabbath laws thought precedes the commencement of the Sabbath. We shall probably not be far off in claiming that the Amoraim borrowed the idea of prior thought from the purity laws67 and applied it in the Sabbath laws.68 But is the thought demanded applied at all times prior to the commencement of the Sabbath? A couple of passages in the Yerushalmi seem to point to the contrary: (a) Traps were spread out and were scorched69 by the sun. [They] came and asked Rav: What is [the law in regard] to handling them?

67 For the close affinity between the objects related to by the Talmuds, applying thought as a criterion for handling, to the Tannatic laws of purity of vessels, see Kretzmer-Raziel, “The Category Muqse,” 170. One may wonder whether the appearance of ḥšv in the context of purification on a Sabbath or a festival in two parallel passages in the Tosefta (above, n. 32) contributed to the transplant of this criterion from purity laws to the laws of muqse. 68 One could deliberate whether the thought demanded in both fields of law is secondary or primary. It could be argued that thought is necessary only in the absence of a salient act. Alternatively, thought, or awareness, could be regarded as the primary demand, indicated usually by the deed and only explicitly raised in the absence of a clear act. Eilberg-Schwartz, Human Will, 115, adheres to the former stand while Balberg, Purity, 83 takes the latter. The second view is alluded to in the Talmuds in other contexts, see y. Ter. 1:1, 40d, “their deed attests to their thoughts” and b. Besah 19a, “his thought is evident from his deeds.” But it seems to me that the tannaitic sources are ambiguous on this point and that there are sources that can be better explained by the former explanation. Thus, in m. Kelim 25:9 mentioned above (n. 60) thought is not efficient in the removal of impurity and it would seem therefore that the act is not a mere indication of one’s awareness. Likewise, t. Ohal. 8:4 gives precedence to a verbal act over a thought. This dilemma could be resolved by turning to cognitive science. Daniel Kahneman, following Stanovich and West, distinguishes between two systems of conscience: “System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control. System 2 allocates attention to the effortful mental activities that demand it. The operations of System 2 are often associated with the subjective experience of agency, choice, and concentration,” idem, Thinking, Fast and Slow (New York: Farrar, Straus and Giroux, 2011), 20–1. Following Kahneman, I suggest that while carrying out a salient act only system 1 is activated, so that the act is automatic and is not done totally consciously. In unclear cases, system 2 intervenes, thus expanding the involvement of one’s conscience. 69 Mishtarfan. M. Sokoloff, A Dictionary of Jewish Palestinian Aramaic of the Byzantine Pe- riod: Addenda et Corrigenda (Ramat Gan: Bar-Ilan University Press, 2002), “šdf,” 845, amends it to mishtadfan.

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He said to them:70 Think of them ḥashvun( ‘aleihen) to be placed beneath your heads71 and you are permitted to handle them.72 In the following passages in the Yerushalmi, discussed above, the time is explicitly stated – yesterday (mi-etmal) – relating to Friday. However, in this passage Rav does not inquire whether prior thought was applied. Rather, he rules that thought regarding the purpose of the traps could be applied on the Sabbath itself. The supposed ambiguity of the traps allows for determining their use cognitively on the Sabbath, thus allowing for them to be handled. This ruling seems to contradict the principle of prior thought, itself part of a wider conception which views the commencement of Sabbath as a freezing point that determines the status of objects.73 This difficulty led to amendments in the text, by scribes, commentators and modern scholars.74 However, the text in the imperative (“Think of them”) appears in both tractates – Shabbat and Besah. Moreover, the suggested amendments are awkward and the phrasing of the passage to carry alternative mean- ings could have been much simpler. (b) …for R. Ya‘akov b. Aḥa Ḥinena Qartaḥiya said in the name of R. Hosha‘ia: A saddle- bag (disiqia) with coins in it, one places a loaf [of bread] on it and handles it, as in the case of that large kettle (antikhi), that fell on R. Yirmia on the Sabbath and they thought of it and removed it (ḥashvun ‘aleha ve-rimuna), not since the halakhah is according to R. Hosha‘ia, but so that R. Yirmia would not be endangered.75 The story of R. Yirmia clearly relates to thought applied on the Sabbath itself, as evident from the wording and from the comparison with the rule set by R. Hosha’ia. Here too amendments have been suggested, with no textual basis.76

70 For the variants on this passage, see below, n. 74. 71 For secondary use of traps as clothes, see t. Kelim B. Bat. 5.14. 72 y. Šabb. 4:2, 7a (= Besah 5:1, 62d). 73 For instance, the setting of one’s individual walking limits according to one’s location at the commencement of the Sabbath, m. ‘Erub. 4:3, 5. 74 A second scribe in MS. Leiden in Besah added one may not touch them, portraying Rav’s immediate answer as negative, thus implying that the following sentence provided a condition, based on the past and not a ruling for the future. The 18th century commentator R. David Fraenkel, in his commentary Qorban Ha‘Eda, adopted this version and transplanted it in y. Šabb. too. S. Lieberman, Yerushalmi Ki-fshuto (New York/Jerusalem: The Jewish Theological Seminary of America, 19952), 93, does not relate explicitly to the timing of the thought, but mentions the amendment in Besah for other purposes. Even though he views these words as a scribal addition, he justifies the amendment. M. Sokoloff, A Dictionary of Jewish Palestinian Aramaic, “ḥšv,” 216, emends ḥashvun in the imperative to ḥashavtun in past tense and adds a question mark at the end of the sentence. 75 y. Besah 1:6, 60c. 76 Qorban Ha‘Eda reads rimuna as “pomegranate” and claims that such a fruit was laid on the vessel. However, the word rimuna, attested to in both extant witnesses for this passage (MS Leiden and Cambridge T-S F 17.34), does not fit as a noun in the syntax of the sentence, leaving no clear reference to the action taken with it. In a second attempt Qorban Ha‘Eda suggests that a loaf was placed on the vessel, just as appears in R. Hosha‘ia’s ruling. But this

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The unfortunate circumstances obviously allowed for leniency in this case, as the Yerushalmi concludes, but without assuming that thought could be ritually affective on the Sabbath, the technique would not have been relevant. These two deviations from the principle of prior thought in the Yerushalmi, not matched in the Bavli, might also have their roots in the tannaitic purity laws: A corpse lying in a room with many openings, they are all impure. If one of them were opened, it is impure and the others are pure. If he thought of removing it through one of them, or through an opening [at least] four handbreadths square, he protected the other openings [from impurity]. Beit Shammai say: If he thought before the death; Beit Hillel say: Even after the death.77 This famous Mishnah is based on a surprising principle.78 According to Bet Hillel, thought does not only influence the susceptibility to impurity, but may also influence impurity itself, even though the contaminating agent is already present. The ritual status of an ambiguous object, in this case a doorway, might therefore be determined by thought after the ritual reality came into existence. In analogy to the Sabbath, the status of the kettle (antikhi) and of the traps can be determined by thinking of using them (for a use permitted on Sabbath), while the ritual reality, Sabbath, already exists. These two objects are regularly designated for actions forbidden on the Sabbath,79 but might be used at times for permitted actions, such as storing water and placing one’s head, respectively. Human thought resolves the ambiguity, setting the ritual status of the object. The existence of such a conception in one field of law – purity – might well have influenced its appearance in another field – Sabbath. These cases are indeed rare in both fields of law and might be viewed as non- representative nominalist approaches to ritual law.80 Though exceptional, they

leaves ḥashvun ‘aleha ve-rimuna superfluous. R. Moshe Margalit, in his commentary P’nei Moshe, relates the verb hšv to the joint consultation of the people present at the scene, who eventually decided to lift the vessel even though nothing was placed on it. I have not found any other example of hšv in this sense in the Yerushalmi. 77 m. Ohal. 7:3. 78 This Mishnah was thoroughly discussed by medieval commentators of the Bavli b.( Besah 10a; 37b; ‘Erub. 68a). For recent scholarship on this Mishnah, see A. Goldberg, The Mish- nah Treatise Ohaloth: Critically Edited and Provided with Introduction, Commentary and Notes (Jerusalem: Magnes Press, 1955), 56–57 [Hebrew]; Eilberg-Schwartz, Human Will, 125–7; A. Gilat, “Tokpo shel ha-Musag Brira be-Mishnat ha-Tannaim” (M. A. thesis, Bar- Ilan University, 2001), 89–92; L. Moscovitz, “Talmudic Reasoning,” 289–91; Noam, “Ritual Impurity,” 86–7; Furstenberg, Purity and Community, 312, n. 127; Saidon, “The Verb ḥašav,” 138–9; Jassen, “Scripture and Law,” 133–34; below, n. 80. 79 Heating water and trapping animals, respectively. 80 Balberg, “Recomposed Corporealities,” 115–6 has argued that the division between Real- ism and Nominalism does not quite fit the notion of thought in the purity laws, since the function of thought is limited to the definition of an object as susceptible to impurity. How- ever, in the Mishnah discussed here (Ohal. 7:3), thought is viewed as effective in determining the actual status of the doorway: Once one has thought of removing the corpse from a

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III. Attention and Knowledge in Amoraic Literature

So far, we have seen one aspect of the mental approach to the muqse laws in the Talmuds – application of thought as a means for rendering an object fit for handling on the Sabbath.81 Yet another aspect of this conception is the implementation of one’s attention (da‘at) or knowledge (yedi‘a) of an object. For instance, in the Yerushalmi: Mishnah: An egg laid on the festival etc. [Beit Shammai say: It may be eaten; Beit Hillel say: It may not be eaten]. What is the reason of Beit Shammai[’s ruling]? It is prepared on account of (‘al gav) its mother. What is the reason of Beit Hillel? It has become as a muqṣe that dried up without his knowing about it (ve-lo yad‘a bo). Isn’t a muqṣe that dried up without his knowing about it forbidden?!82 The Yerushalmi analyzes the famous disputation regarding an egg laid on the festival. Muqse here denotes figs spread out to dry in the sun and is not a legal term. Bet Hillel’s stringency in the case of the egg is explained by analogy to fruit spread out to dry. The Talmud relates to one’s lack of knowledge regarding the state of the fruit (at the time the Sabbath commenced), assuming that the fruit in this case would be forbidden for consumption on the Sabbath. The Yerushalmi repeats this assumption in yet another analogy brought later on in the chapter83 and seems to rework a baraita along the same lines.84 In yet

certain doorway, objects lying beneath immediately become impure, not merely susceptible to impurity. Balberg, ibid., n. 54, views this Mishnah as an exception to the rule. It might be more accurate to attribute the appearance of thought in this Mishnah to the irregular situation rather than to an exceptional opinion. The resort to mental criteria in the case of a multi-doored house should be understood in light of the liminal state of doorway, related to in several tannaitic sources, e. g.: m. Ohal. 4:3; Neg. 12:6; Sifra metzor‘a 6:6; t. ‘Erub. 6:2. Moreover, in this case an act is ineffective as a criterion for determining the ritual status. A doorway is usually rendered impure duew to its partial inclusion in the house. However, a multi-doored house, with all doors shut or open, lacks a physical criterion for determining the inclusion of the doorway in the house. 81 For the introduction of thought into aggadic amoraic material concerning the Sabbath, see Kretzmer-Raziel, “The Category Muqse,” 172–3. 82 y. Besah 1:1, 60a. 83 y. Besah 1:2, 60b. Various discussions in the Yerushalmi might be at odds on this point. Whereas the passages cited here discuss muqse she-yavash ve-lo yad‘a bo (= without his knowing about it), another passage (Šabb. 3:6, 6b) relates rather to muqse she-yavash ve-lo nag‘a bo (= without him touching it), see Kretzmer-Raziel, “The Category Muqse,” 180. 84 The Yerushalmi Šabb.( 17:4, 16b), cites a baraita in the legal context of carrying in the public domain, closely linked to the field of handling objects in the private domain on the Sabbath.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 406 Yoel Kretzmer-Raziel another discussion the effect of knowledge in determining the status of objects is raised as an amoraic question:85 R. Ḥagai asked: [What is the law, if an oil lamp] went out while still daylight [on Fri- day] and he knew about it [only] after nightfall? Ḥavera’ia asked: [What is the law, if it] went out on one Sabbath and he knew about it [only] the following Sabbath?86 The Mishnah and Tosefta dealing with the handling of an extinguished oil lamp do not relate to one’s knowledge.87 The Yerushalmi deliberates whether the status of the lamp is determined by the physical reality at the commencement of the Sabbath, or by one’s awareness thereof. The question remains un- resolved in the Yerushalmi and other discussions in this Talmud stick to the physical approach, as we shall see below. In the Bavli, knowledge and lack thereof is deployed in numerous passages, using da‘at in both positive and negative forms. For example, in discussing a lenient tannaitic ruling, permitting the removal of wood from a Sukkah to be used as fuel on the festival, the Bavli brings the following explanation: R. Naḥman b. Yiṣḥaq said: This ruling deals with an unstable sukkah, for he had thought of it [as potential fuel] yesterday (de-mi-etmal da‘atei ‘ilavei).88 Contra to previous explanations in this passage, the explanation offered by R. Naḥman b. Yiṣḥaq, in its full form in the text as we have it,89 places the tannaitic ruling in a situation unique in its mental, rather than physical, features. Similar arguments are made by Amoraim and the anonymous stratum in the Bavli over six times.90 One case in the Bavli stands out in that the argument is set in the negative, stressing one’s active distraction of the mind from the given object as the base for the law. Once again, we are dealing here with the state of fruit spread out to dry, as in the passage from the Yerushalmi reviewed above. Both Talmuds evoke traditions that narrow down the category of muqse to figs and grapes alone.91 Although close in their wording, there are striking differences between these traditions as well as differing attitudes taken by the two Tal- muds in interpreting them. One point of divergence is the reason given for the prohibition. The Yerushalmi offers the following explanation:

The baraita differs from its counterpart in the ToseftaBe ( sah 1:11), in that it refers to one’s intentions (yesh be-da‘atei). It seems probable that the baraita was reworked following the amoraic mental approach. 85 R. Yoḥanan’s saying, directly following, seemingly opens a new discussion. 86 y. Šabb. 3:6, 6:2. 87 m. Šabb. 3:6; t. Šabb. 3:13. 88 b. Besah 30b. 89 Surely, it could be argued that the phrase mi-etmal da‘atei ‘ilavei is not an original compo- nent of R. Naḥman’s saying, but this possibility has little bearing on our issue. 90 b. Šabb. 44a, 143a; Pes. 56b; Beṣ. 6b, 8b, 26a, 26b, 33a. 91 b. Šabb. 45a; y. Besah 4:1, 62b–c (= Mas. 1:8, 49b).

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R. Shmu’el b. Susretai said: [The figs and grapes are unique] since they rot meanwhile.92 This Amora claims that the physical state of the fruit after being left to dry is such that they are inedible for a certain period. Therefore, these fruits were not considered prepared before the Sabbath. As opposed to this physical explanation, the Bavli offers a mental one: Since he placed them [the figs or grapes] on the roof, he surely distracted his mind from them [asuḥi asḥei le-da‘atei minaihu].93 The Bavli phrased this concern in the negative: since one placed the fruit to dry – a process taking some time – he must have distracted his mind from the fruit, rendering them “unprepared” for consumption on the Sabbath.94 Although this is the only case phrased in such a way in our context, it is of importance for two reasons. First, this case is part of a wider phenomenon of relating to one’s distraction of mind in various fields of law in both Talmuds.95 Second, this case sets a paradigm for post-Talmudic understanding of muqse, as dependent primarily on one’s awareness of an object or the distraction of the mind thereof.96 The development in the application of knowledge or awareness in the law of muqse seems quite clear. Whereas there are no such occurrences in the Mishnah and the Tosefta, the Amoraim at times assume that the key for understanding the permissibility or impermissibility of handling or consuming certain objects on the Sabbath is one’s prior awareness of the object’s availability at the commencement of the Sabbath. In the Yerushalmi this feature appears in a casuistic verbal form in Hebrew – lo yad‘a; in the Bavli this feature is used more often, chiefly as reasoning for existing rules, usually in the Aramaic noun form da‘at. Knowledge, as a legal criterion, appears in various fields of tannaitic law, in the verb form – yad‘a and in the abstract noun form – yedi‘a.97 The pres- ence of knowledge in legal discourse might well have catalyzed the amoraic

92 Ibid. 93 b. Šabb. 45a. 94 Moreover, the Bavli relates here to all dried fruit, while the Yerushalmi is concerned with figs and grapes alone. There is a correlation between the scope of the discussion and the approach towards muqse in each Talmud. The Yerushalmi is concerned with the physical aspect of the fruit, differentiating between figs and grapes which rot in the process of dry- ing and other fruit that do not, see Kretzmer-Raziel, “The Category Muqse,” 239, n. 86. The Bavli is concerned with the mental aspect of the fruit, relating to all types of fruit laid out to dry. The parallel ToseftaBe ( sah 4:1) differs from its Babylonian counterpart in that it too relates to figs and grapes alone. 95 See bellow, n. 111. 96 E. g. Rashi Šabb. 46b, ve-amai; Besah 27a, ki qa mib‘aia lan; R. Menahem Hame’iri, Beit Habehira, tractate Besah for fol. 2a (ed. Lange-Schlesinger, 5); R. Israel Lipschitz, Kalkalat Ha-Shabbat, “klalei Muqse,” 17; R. Israel M. Kagan, Mishnah Berura, 501:17. 97 Chiefly as elaborations on Lev 5:1–4; 5:17–18. Quite often these forms appear in the context of purity, e. g.: Sifra ḥova, ch. 12:11; tzav, ch. 15:4; aḥarei, ch. 4:4. A third form appears several times in tannaitic literature in similar contexts: nitw‘ada.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 408 Yoel Kretzmer-Raziel tendency to examine one’s knowledge as a criterion for in issues of muqse. The form da‘at – (“attention”) appears likewise as a legal criterion in other fields of tannaitic law, at times affecting the legal status of an object. However, in these cases the demand is for comprehension of the specific ritual process, rather than attention to a given object.98 Moreover, the forms da‘at le/‘al (“attention to/of”) that appear in the amoraic laws of muqse are totally absent from tannaitic literature. However, da‘at has a clear tannaitic parallel: lev – the heart. In Biblical He- brew, as in various cultures, the heart signifies intellect and not only emo- tions.99 In rabbinic literature there is a gradual shift from lev to da‘at. Lev in the biblical idioms ‘ala+‘al+lev,100 natan/sam/shat+lev,101 kwn+lev,102 gvh+lev,103 and ganav+lev,104 was replaced over time by da‘at.105 The tannaitic literature is a milestone along this process, and still retains much use of lev in the intellectual meaning. I shall therefore examine the use of lev in the context of Purities in the Mishnah and Tosefta:

98 In the laws of tithes (e. g., t. Ter. 1:1), divorce contracts (m. Git. 2:6), etc. 99 For the intellectual uses of lev in the Hebrew Bible see E. Ben-Yehudah et al., The Diction- ary of Ancient and Modern Hebrew (Jerusalem: Makor, 19802), vol. 5, “lev,” 2587. See the summary in Saidon, “The Verb ḥašav,” 45–6. The intellectual meaning of lev in Biblical Hebrew was treated thoroughly by Maimonides, Guide for the Perplexed, 1:39. 100 In the Hebrew Bible: only ‘ala+lev; Mishna (once): ‘ala+lev; Tosefta and tannaitic Midrash: both; Yerushalmi: both, chiefly ‘ala+da‘at; Bavli (including baraitot): only ‘ala+da’at. The case in the Mishnah is noteworthy: All manuscripts of the Mishnah (Sotah 9:6), including those of the Mishnah in the Bavli (Sotah 45b) read ‘ala+lev, save MS Cambridge of the Mishnah that reads ‘ala+da‘at; the parallel in Sifre Deut. 210 (ed. Finkelstein, Berlin, 1939, 243) also reads ‘ala+lev in all the known MSs and so does its parallel baraita in b. Sotah 46b. However, in the printed editions of the Mishnah and of the Bavli, the version in the Mishnah is ‘ala+da‘at. Here the transformation lev>da‘at seems to be medieval or early modern. 101 Hebrew Bible: sim+lev, shit+lev (early books), natan+lev (late books), see C. S. Scow, Ecclesiastes: A New Translation with Introduction and Commentary (AB 18c; New York: Doubleday, 1997), 119–20; tannaitic literature: neither; Avot De Rabbi Natan: natan+lev; Yerushalmi: only natan+da‘at; Bavli: natan/yahav+da‘at. 102 Hebrew Bible: kwn+lev (the waw acting as a vowel); Mishnah and Tosefta: kwn+lev (waw as a consonant); Tannaitic Midrash: both; Yerushalmi: kwn+lev [in y. Ber. 6:1 (10a) MS Leiden reads twice kawen da‘ato; Genizah fragment Cambridge T-S F 17.23 reads nit- kawen]; Bavli: in Hebrew kwn+lev, in Aramaic kwn+da‘at. 103 Hebrew Bible: only gvh+lev; Tannaitic Literature and Yerushalmi – neither; Bavli and Agadic Midrash – both. 104 Hebrew Bible – ganav+lev; Mishnah (once): ganav+lev; Tosefta, Tannaitic Midrash, Yerushalmi and Bavli: always ganav+da‘at – except for paraphrases of the above mentioned Mishanh, which retain ganav+lev. 105 The two continue to interchange in amoraic literature, compare for example the term aliba in the Bavli with al da‘atei, its near counterpart in the Yerushalmi; see L. Mosko vitz, The Terminology of the Yerushalmi: Principle Terms (Jerusalem: Magnes Press, 2009), 512–6 [Hebrew].

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One who leaves his vessels from one wine press to the next wine press, his vessels are pure. If he was [not a priest, but] an Israelite, [they are not pure] until he says, “It was in my heart (be-libi haya) to protect them [from impurity]”. One who was pure and distracted his heart (hesi‘a et libo) from eating, R. Yehuda renders him pure, because it is the way of impure individuals to stay away from him; but the Sages render him impure. If his hands were pure and he distracted his heart (hesi‘a et libo) from eating, even if he says, “I know that my hands were not contaminated,” his hands are impure, because hands are active.106 One’s attention or the lack thereof towards his vessels or his body plays a role in determining their ritual status. The attention is denoted by haya+be+lev, while one’s loss of attention is denoted by hesi‘a+lev. In the Tosefta, an equiva- lent case is phrased using hesiaḥ+da‘at.107 The verbs hesi‘a and hesiaḥ are close both phonetically and semantically and may actually be viewed as one and the same.108 While haya+be+lev appears in the law of Holies as well as of those of Purities, hesi‘a/hesiaḥ+libo/da‘ato, affecting the ritual status of an object, appear in the laws of Purities alone.109 We might then assume that the amoraic use of da‘at and hasaḥat da‘at in the laws of Sabbath, are inspired, lexically and conceptually, by the tannaitic purity laws. Both terms, and the concepts related to them, are not found in the tannaitic discourse of Sabbath laws and therefore do seem to be an amoraic, especially Babylonian, novelty. The above-mentioned Mishnah from tractate Tohorot (“it was in my heart to protect them”) plays a pivotal role in establishing the importance of attention as a prerequisite for sustaining purity.110 It seems that in the case of the dried fruit the Bavli adopted the model of attention loss from this Mishnah. Loss of attention removes the object from one’s control and one would therefore need a renewed summoning of the fruit to retrieve them to the realm of available goods.111 As with the issue of thought, here too we are not dealing solely with a term or concept imported from the laws of purity to the laws of the Sabbath. Rather, the Sabbath laws have adopted a wider conception, which transformed the laws of handling and consumption on the Sabbath.

106 M. Toh. 7:7–8. 107 T. Toh. 8:15. For a discussion of the problems and variants in this passage, see S. Lieber- man, Tosefet Rishonim, (Jerusalem: Bamberger & Wahrman, 1939), vol. 4, 88. 108 Ben Yehuda, Dictionary, vol. 2, hs‘a, 1138. 109 There are two occurrences in other fields of law: m. ‘Erub. 8:5, she-kevar hisi‘a mi-libo; t. Ber. 2:6, she-lo le-hasi‘a mi-libo. However, in both cases it is not the status of an object that is determined by the loss of attention. 110 Furstenberg, Purity and Community, 316–17, 326–34; Balberg, Purity, 165–8. For the differences between the two, see ibid., 233 n. 69. 111 The implementation of hasaḥat da‘at in amoraic legal discourse is not confined to Sabbath laws. Hasaḥat da‘at appears some eleven times in various legal contexts in the Yerushalmi. In the Bavli it appears many times, as a legal criterion and in agadic material, in Hebrew and Aramaic, in all strata, See Kretzmer-Raziel, “The Category Muqse,” 186.

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IV. Theoretical Aspects of the Mental Turn

In the previous chapters I have reviewed two aspects of the mental approach to muqse laws in amoraic literature: (1) active intention – thought and (2) passive intention – attention or knowledge. Elsewhere I dealt with a third aspect: the differentiation between forgetful and intentional placing of an object in a certain location. In this case too, the distinction is absent from the tannaitic laws of handling on the Sabbath, whereas in the purity laws it is applied. Amoraic evocation of this distinction adopts the terminology and the mental approach of tannaitic purity law.112 Furthermore, it could be argued that the choice of the word muqse as the central signifier in the field of consumption and handling on the Sabbath, implies an underlying assumption that these laws are governed by the mental approach.113 The picture emerging from our discussion here partially joins the trends reviewed in the first part of this article, pertaining to the emergence of mental criteria in amoraic law. As in the fields of law studied by Hoffmann Libson, Strauch-Schick, and Kiel, in the laws of muqse a gap may be drawn between physical criteria in tannaitic sources and the mental ones in amoraic sources. At times, thought replaces acts and one’s subjective or assumed awareness in a given situation is taken into consideration. However, in contrast to the cases reviewed in the above-mentioned studies, in the cases examined here the Yerushalmi can be grouped together with the Bavli against the tannaitic sources. Even though mental criteria are more developed in the Bavli, utilizing such criteria is well represented in the Yerushalmi, at times even more radi- cally than in the Bavli. Since introducing mental criteria seems to characterize the Yerushalmi as well as the tannaitic sources, it might be more fruitful to think of an ongoing process of increasing use of mental criteria rather than a sharp turn.114 Moreover, there is some evidence that the Tosefta stretches the boundaries of the physical approach further than does the Mishnah, bringing us one step closer to the mental approach.115 Without taking a stand on the complex issue of the Mishnah-Tosefta relationship at large,116 the argu-

112 Kretzmer-Raziel, “The Impact,” 185–87. 113 See Kretzmer-Raziel, “The Category Muqse,” 311–15. My conclusion there is that while the term muqse in the Bavli does not necessarily imply mental distraction, it easily allows for this meaning to be read into it. 114 Strauch-Schick, “Intention,” 224, views the introduction of intention as a gradual process, but places this development inside the boundaries of amoraic literature. 115 See in the appendix to this article. It is noteworthy that in other fields of Sabbath law, reference to intention (kwn) and willfulness (ŝogeg/mezid) is far more frequent in the Tosefta than in the Mishnah, beyond the relative size of the Tosefta. See also Lieberman’s asser- tion regarding the position of the Tosefta towards intention in the laws of purification, Lieberman, Tosefta Ki-fshuta, vol. 3, 274. 116 For a recent overview of the various approaches to this question, see R. Brody, Mishnah and Tosefta Studies (Jerusalem: Magnes Press, 2014), 111–14.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 411 ment could be confined to claiming that an evolutionary development might be perceived here, with the Mishnah at one end, the Bavli on the other and the Tosefta and Yerushalmi as milestones on the way. As stated earlier in this article, Mira Balberg has claimed that the tannaitic purity laws construct a situation in which one is in a persisting state of concern regarding not only his own ritual status but also concerning the status of the surrounding persons, materials and objects. Moreover, “a close look at the rabbinic ‘science of artifacts’ reveals that for the rabbis, the most decisive criterion in mapping the material world in terms of purity and impurity was human consciousness, or more accurately – the subjective thought and attention that was invested by humans in different material objects.”117 May these insights be relevant to the halakhic field of muqṣe? First, let us consider the differences. Unlike impurity, objects forbidden for handling are not ritually contagious and therefore they pose less of a threat. Moreover, the need for attention in the field of Sabbath law is not a daily en- deavor, rather a demand focused on one day a week. Even so, it seems that Bal- berg’s insights are of importance to our discussion. The thought or attention required, according to most of the sources reviewed above, refer – explicitly or implicitly – to the moment of the commencement of the Sabbath. Around this time, one is demanded to make a series of acts, deviating from his or her usual daily schedule: making the arrangements for carrying in the courtyard or the alleyway (‘eruv), physically and ritually preparing food for the Sabbath, removing dishes from the fire and insulating them, lighting candles and so on. Not only do these actions create an alternative routine, they assist in constructing a new space, different physically and perceptually from the same location as it functions during the week days. The courtyard and the alleyway become common property; walking routes for the Sabbath must be carefully planned; one is demanded to organize the foods and artefacts needed for the Sabbath and to make sure of their physical and ritual state. Thus, artefacts that were not organized in this way become “present absentees.” In this context, one’s thought regarding the objects needed for the Sabbath becomes of great importance. In order to carry through the Sabbath clean of obstacles, one must be actively aware of her surroundings.118 According to the sources reviewed above, one creates a new reality using his consciousness. This consciousness may also narrow one’s possibilities: active awareness to the placement of a forbidden object on a permitted one creates a prohibition to handle even the permitted object; active awareness that a certain object is used

117 M. Balberg, “Recomposed Corporealities,” 109. 118 Cf. Balberg, “Recomposed Corporealities,” 120, “Consciousness was not introduced to the mishnaic system in order to help prevent things from becoming impure, but in order to minimize the number of objects with which one needs to be concerned, so that one can manage the material world more efficiently and skillfully.” A similar claim may be made in reference to amoraic Sabbath law: By applying prior thought one sets the status of objects in the home and thus minimizes the obstacles standing in his way on the Sabbath.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 412 Yoel Kretzmer-Raziel for prohibited functions sets the status of the object as forbidden for handling on the Sabbath. As described in the first part of this article, recent scholarship has discussed the seeming discrepancies regarding the role of thoughts and intentions in tannaitic purity laws.119 Vered Noam, dealing with corpse impurity, claimed that the tannaitic notion of impurity is realist in its core, supplemented by a thin nominalist layer. This formulation seems adequate to the issue discussed here too. The Amoraim add a partial nominalist layer to the tannaitic law, granting some weight to mental criteria. Nevertheless, as in the Mishnaic purity laws, mental criteria are not widely utilized in the amoraic laws of muqse and it would not be accurate to tag the entire amoraic perception of these laws as nominalist. It seems that the trend identified by Eilberg-Schwartz as well as Noam, Bal- berg, and Furstenberg in tannaitic law, continues in amoraic law. Tannaitic law granted significance to human consciousness in various fields, chiefly in purity law and in sacrificial law. As shown above, the Amoraim continued this conceptual innovation, applying mental criteria to a new field: the laws of handling and consuming on the Sabbath. I argue that this turn was inspired primarily by those tannaitic purity laws which determine the status of objects according to one's thoughts or awareness, especially in liminal or ambiguous cases. The Amoraim applied mindsets taken from purity law in the field of Sabbath law, duplicating lexical forms from one field to another. I have dealt elsewhere with the wide influence of tannaitic purity laws on the amoraic laws of muqse. This influence is manifest in three ways: (a) cases in Sabbath law modeled upon situations dealt with in the Order of Purities in the Mishnah or Tosefta; (b) terminology in amoraic Sabbath law borrowed from tannaitic purity laws; (c) principles and distinctions in Sabbath law that seem to be rooted in the purity laws.120 The emergence of the mental approach to the laws of muqse described in this article is yet another, powerful, example of this phenomenon. It appears that the Amoraim viewed the halakhah as a unitary conceptual system, allowing for principles and conceptions to be redeployed in new fields.121 If thought is an effective tool for determining the status of an object in one field, it follows analogically that it could have a similar effect in another. Moreover, the cases reviewed here may be explained by the affinity between the laws of muqse and the purity laws, especially those pertaining to vessels

119 See above, nn. 4–10. 120 Kretzmer-Raziel, “The Impact”. 121 The unitary view of halakhah may be found to a certain extent in tannaitic literature, but the tendency to apply this stance seems to deepen in amoraic discourse, in which the uniformity is often the underlying assumption of analysis, see Y. Sussmann, “Babylonian Sugiot for the Orders of Seeds and Purities” (Ph. D. diss. The Hebrew University of Jerusa- lem, 1969), 106–8; Moscovitz, Talmudic Reasoning, 272; Kretzmer-Raziel, “The Category Muqse,” 190; idem, “The Impact.”

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 413 and foods. Both purity laws and muqse laws focus on handling objects and consuming food, and are organized by a “science of artifacts.”122 The Tannaim themselves draw attention to the similarity between the fields and cross refer- ences between them appear in the Mishnah and Tosefta.123 Amoraim explicitly deliberate whether sources dealing with purity of certain objects may serve proof for the status of the same objects in Sabbath law.124 These connections may have led to a wider comparison, providing the basis for conceptual trans- planting. Thus, the Amoraim constructed a “new purity,” confined in time and limited in in its ramifications, but applicable in amoraic ritual reality.125

V. Conclusion

In this paper, I have shown that in amoraic Sabbath law we can detect a transition from a solely physical examination of objects to an attitude which takes into account one’s mental position towards the object. I demonstrated this development through two main examples: The implementation of specific thought or plan (maḥashava), towards an object and the knowledge or awareness (yedi‘a, da‘at) of the object’s existence or availability. To this we must add the distinction between intentional placing of an object in its location and merely forgetting it there, appearing first in amoraic sources. This development is evident in both Talmuds, although in the Bavli its impact is deeper and early sources are reworked by the Bavli incorporating the mental approach into them.126 Diachronic analysis of the emergence of the mental approach in the muqse laws reveals the following picture: The Tannaim forbade and permitted the handling and consumption of objects judging by their physical features and demanded action to redefine their status. Borderline sages and early Amoraim suggested the application of prior thoughts as a means for setting the status of objects, especially in ambiguous cases. One’s prior awareness of a given object was viewed as a criterion for determining the permissibility of handling it on the Sabbath. In two instances attested in the Yerushalmi, thought was applied on the Sabbath itself, thus diverging from the principle perceiving the commencement of the Sabbath as a ritual freezing point. A new function of the mental approach is evident in the Bavli, most probably in its later strata. Al-

122 Using the term coined by M. Balberg, above, n. 117 and idem, “Artifact,” in Late Ancient Knowing: Explorations in Intellectual History (eds. C. M. Chin and M. Vidas; Oakland: University of California Press, 2015), 17–35, 19, following Charlotte Fonrobert. 123 E. g., m. Šabb. 17:3; t. Šabb. 13:17; t. Kelim B. Meṣ. 2:1–2. 124 E. g., y. Šabb. 3:7, 6c; b. Šabb. 112a. 125 For the possible connection between the emergence of this “new purity” and the decline in the practical and analytical interest in purity law and practice, see Kretzmer-Raziel, “The Impact.” 126 See: Kretzmer-Raziel, “The Impact.”

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 414 Yoel Kretzmer-Raziel leged awareness of an object or the lack thereof at sunset on Friday served the hermeneutic purpose, of explaining tannaitic or amoraic rulings. From here, the path was short to an overall theory of muqse laws as dependent on one’s awareness towards objects and materials.127 It is probable that the shift from the physical approach to the mental one in this field of law was facilitated by the language used in tannaitic sources regarding handling and consumption on the Sabbath. The rather obscure nature of the language and terminology in this field of law lent itself easily to sig- nify mental procedures. The close connection demonstrated here between the amoraic laws of muqse and tannaitic purity laws, in mental concepts and conceptions, strengthens the claim that the mental approach to muqse should be viewed as an extension of a similar tannaitic attitude in various fields of law. The first stages of the development described here are evident in the sayings of borderline sages and early Amoraim in both Talmuds. Thus, the emergence of the mental approach in the laws of muqse seems to differ from the rise of mental aspects in other fields of halakhah, ascribed to the Mishnah or to middle and late Babylonian Amoraim. Addressing muqse laws specifically, one might then assume a gradual evolutionary development, facilitated by tannaitic language, first applied by early-amoraic interdisciplinary analogy and abstracted in mid-late amoraic discourse. Moreover, the case of muqse may transform our perception of the mental turn in rabbinic Law. Graphically speaking, previous scholarship portrays two peaks of change along the path up the hill of mentalization, namely the Mishnah and the (mid-late strata of the) Bavli.128 The development in the field of muqse described here infers that the overall process might be more gradual and that early amoraic discourse, evident both in the Bavli and in the Yerush- almi, was a significant landmark in this process. Consequently, revolution- ary terminology might not be appropriate in describing the emergence of the mental approach in the Bavli or in amoraic literature at large.129 Rather, this

127 These stages correlate to two of the three models of conceptual development identified by A. Furstenberg, “Restitution of Lost Property in the Tannaitic and Amoraic Halakhah: A Preliminary Philosophical Study of the Forming of a Conception,” AJS Review 29 (2005): *1–51 [Hebrew]. In the first model ibid.( , 23), the new point of view retains the former conceptual system intact. The second model entails a conceptual transformation, which in turn allows for a reinterpretation of the laws stated in earlier sources (ibid., 23, 51). As in the case of lost property analyzed by Furstenberg, in our case the first model, in early amoraic sayings, sets the stage for the second, in later amoraic discourse. 128 For an exception to this generalization, dealing though with self-control rather than intention or thought, see C. Hezser, “Self-Control in a World Controlled by Others: Palestinian Rabbinic ‘Asceticism’ in Late Antiquity,” in Religion in the Roman Empire 4 (2018): 9–27. 129 It might well be that the tendency to identify revolutions in the Mishnah and in the Bavli is connected not only to the uniqueness of these two sources, but also to the great attention given to them in current scholarship. The studies mentioned above, n. 4–14, as well as many other conceptual studies of rabbinic literature, focus on the Mishnah and on the Bavli. One may well wonder what results will conceptual monographs dedicated to the Tosefta or the Yerushalmi yield. For sound criticism regarding the tendency to ascribe “revolutions” to

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Appendix: Ambiguous Vocabulary in the Tannaitic Laws of Muqse ̇ In the first section of the article I claimed that the vocabulary used by the Tannaim might allow an understanding of the ritual demands in the field of muqse as mental rather than physical, thus undermining my argument that the mental approach in this field is an amoraic novelty. In the following discussion, I shall proceed to show that this interpretation of the tannaitic language is faulty and that the vowels and adjectives discussed denote physical actions rather than mere thoughts. The verb zimen – order or designate – is used in the context of selecting fowl for the festival meal in the Mishnah and the Tosefta.132 Although seemingly neutral, the context of this verb in both sources rules out the possibility that zimen denotes intention alone. In the preceding Mishnah Bet Shammai and Bet Hillel are at odds whether the fowl must be shaken or if it suffices to de- clare one’s intention verbally. In this context, it is quite clear that zimen refers to the modes of selection related to in the previous Mishnah and cannot be understood as a mere intention.133 The seemingly neutral verb used most often in our context ishitqin , as in the following Mishnah:

the Mishnah and to the late stratum of the Bavli, see M. Lavee, The Rabbinic Conversion of Judaism: The Unique Perspective of the Bavli on Conversion and the Construction of Jewish Identity (Ancient Judaism and Early Christianity 99; Leiden: Brill, 2018), 191–94. 130 Cf. Furstenberg, “Eating in a State of Purity during the Tannaitic Period: Tractate Teharot and its Historical and Cultural Contexts” (Ph. D. diss. The Hebrew University of Jeru- salem, 2010), 348 [Hebrew]. This process might indeed have its roots in Second Temple literature, as is evident from the sources dealt with by Jassen, above, n. 15. 131 This conclusion has bearings on the character of cross-cultural comparative analysis of the mental turn. Indeed, it might be fruitful to point out the similarities between the emergence of mental traits in the Mishnah or the Bavli and similar developments in the Graeco-Roman or Iranian realms (above, n. 16–20). Having that the emergence of mental criteria in rabbinic law is continual and occurs in different fields of law in the Mishnah, the Tosefta, the Yerushalmi and the Bavli, it seems that parallels from near-by cultures attest to a shared broad tendency, rather than to a close affinity, not to speak of influence. Time bound eastern or western parallels shed little light on this process, since at any time in tannaitic or amoraic history one may identify the application of new mental criteria in this field or another. The intra-cultural impulse to take one’s cognizance serious legally holds water as an explanation for the gradual but continual process of introducing mental aspects into rabbinic law. 132 m. Besah 1:4; t. Besah 1:10. 133 The Tosefta (1:8–9) holds an alternative tradition for this disputation, allowing selection by shaking or tying. Here too, the Tosefta (1:10) proceeds to use the neutralzimen , clearly relating to the shaking and tying mentioned above. The choice of the neutral zimen in this context thus enables the Mishnah and Tosefta not to take a stand in the dispute between Bet Hillel and Bet Shammai.

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Bundles of straw, bundles of branches, and bundles of young shoots – if one has prepared them (hitqinan) as cattle fodder they may be handled; if not – they may not be handled.134 Similar conditions appear five times in the Tosefta. Saul Lieberman comment- ed on one of these cases: “the meaning of ‘tqn’ in the language of Eretz Israel is ‘to prepare’, as is its meaning in all places in the Mishnah and in the baraitot, especially in tractate kelim”.135 Lieberman proceeds to quote the 12th century Provencal rabbi, Zerahia Halevi, “all hatqana in the form of hif‘il is preparation and designation in (one’s) mind alone”.136 However, Lieberman’s oft-cited137 definition demands revision. First, the quotation of R. Zerahia cannot serve as evidence. R. Zerahia makes this claim for harmonistic reasons and bases them on a baraita that appears in the Bavli alone. Second, it is questionable whether the verb tqn may be understood as denoting thought alone in tannaitic literature. We read in the Tosefta: A Cane prepared (hitqino) by the owner of the house to open and lock with, if it was tied and hung – one may open and lock using it, but if not – one may not open and lock using it. R. Shimon b. Gamliel says: prepared (mutqan138) even if not tied and even if not hung.139 In this case too, Lieberman understood hitqino as describing the owner’s intention to use the cane as a key, devoid of any act. Lieberman followed medieval scholars who interpreted the parallel baraita in the Bavli in this way, based on the Talmudic discussion of the baraita. However, I see no internal reason to accept this interpretation. On the contrary, acquaintance with doors and bolts of tannaitic Palestine seems to rule out the possibility that a simple cane would be used for opening and locking a door. The known locking de- vices from the Mishnaic period include a slotted or curved element used for altering the position of the lock.140 It is more probable that hitqin here refers to cutting the slot or bending the tip of the cane.141

134 m. Šabb. 18:2. 135 Lieberman, Tosefta Ki-fshuta, vol. 3, 11, n. 38. Lieberman refers to his discussion of the verb tqn in Aramaic in idem, Hellenism in Jewish Palestine: Studies in Literary Transmis- sion, Beliefs and Manners of Palestine in the I Century B. C.E – IV Century C.E (New York: Jewish Theological Seminary of America, 1950), 90. However, it seems that this reference proves the opposite, since tqn in the sources cited there relates to an act – the redaction of the Mishnah – and not to a mere thought. 136 “hakhana ve-hazmana be-maḥashava bilvad,” R. Zerahia Halevi, Hamaor Haqatan, Šabb. Ch. 17, in Hilkhot Harif, Šabb., (Vilna: Rom, 1880–8), 49a. 137 See for instance Gilat, “Intent and Act,” 72. 138 The manuscripts vary between mutqan and metuqan. 139 t. Šabb. 14:3. Close parallels of this source appear in both Talmuds, y. Šabb. 13:3, 16b; b. Šabb. 126a. 140 D. Sperber, Material Culture in Eretz-Israel during the Talmudic Period (Jerusalem: Yad Izhak Ben-Zvi Press & Bar-Ilan University Press, 1993), 49–51 [Hebrew]. 141 Support for this interpretation may be found in the following Mishnah and Tosefta: “A nail that was prepared (she-hitqino) to open and lock with is impure (= is susceptible to

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Other instances of hitqin in the Mishnah and Tosefta in other contexts may too be more easily interpreted as describing physical alterations of objects than rather mere plans how to use them.142 It is therefore probable that the six instances of hitqin in the tannaitic laws of handling on the Sabbath, relate to physical alteration of the discussed objects and do not attest to mental criteria for determining the status of objects on the Sabbath. The mental approach could possibly be found in the following pair of clauses from the Tosefta: Bundles of marjoram, savory, and thyme, that were brought in (to the house) for (fire) wood, may not be eaten on the Sabbath; (if they were brought in) for animal consumption, they may be eaten.143 Fig branches bearing figs and palm branches bearing dates, if they were brought in for (fire) wood, they may be not eaten on the festival; for animal consumption, they may be eaten on the festival.144 In each of these clauses, the location of the discussed objects and the physical state thereof are identical in both cases and the difference lies in the designation of the goods for specific use. The Tosefta states that the designation of the bundles or the branches determines their status. Thus, it would seem that we

impurity, Y. K.R); one made for safeguarding is pure. A nail prepared (she-hitqino) to open the barrel with – R. A’qiva renders it impure and the sages render it pure, until one forged it [a new],” m. Kelim 12:5; “A nail that one bended for himself to open and lock with is impure; if he prepared it (hitqino) for safeguarding it is pure; if he prepared it (hitqino) for maḥarim or for a shoe… it is pure,” t. Kelim B. Meṣ. 2:14. in the Mishnah is paralleled by bending in the Tosefta, as suggested by C. Albeck, Shisha Sidre Mishnah (Jerusalem/Tel Aviv: The Bialik Institute & Devir Press, 1959), 6.59 [Hebrew], and others. (For further possibilities, see Kretzmer-Raziel, “The Category Muqse,” 87, n. 290.) Indeed, many such curved nails from this period have been found in archaeological excavations, as well as nails that have gone through other forms of physical adaptation, probably for the same purpose. See for instance, Z. Ilan and E. Damati, Meroth: The Ancient Jewish Village (Tel-Aviv: The Society for the Protection of Nature in Israel, 1987), 145 [Hebrew]; Y. L. Rahmani, “The Synagogue in Ma’on (Nirim),” Eretz Israel 6 (1961): 82–5 [Hebrew]. It is probable that the cane too was prepared to be used as a key or a bolt by some physical adaptation. Tannaitic sources attest to other uses of canes, most probably needing physical alteration: m. Ḥul. 1:2, “One who slaughters using a hand-sickle or with a flint or with a cane his slaughtering is valid,” obviously relates to a sharpened cane. It is likely, therefore, that in our case too, the Tosefta is dealing with a cane that was physically altered. 142 For instance: m. Kelim 12:7 discusses the susceptibility to impurity of coins that are no longer valid, if they have been prepared to be hung on a necklace or to be used as a weight. Again, textual and numismatic evidence points to the fact that the preparation entailed piercing of the coin or filing it down to the size of a standard weight, respectively. See in detail, Kretzmer-Raziel, “The CategoryMuqs e,” 87–8. I thank Dr. Yoav Farhi for his as- sistance with the numismatic data. 143 t. Šabb. 14:11, according to MSS Vienna and London and editio princeps. MS Erfurt seems corrupt. The parallel baraita in b. 128a, accords with the version cited here, with minor variations. 144 t. Besah 4:2, according to MSS Erfurt and London, Genizah fragment Cambridge TS F17.15 and editio princeps; MS Vienna seems to be corrupt. The parallel baraita in y. Besah 4:2, 63c, agrees with the version cited here.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 418 Yoel Kretzmer-Raziel have found tannaitic sources, in which one’s intention determines whether materials may be consumed on the Sabbath. However, these laws do not examine one’s mere awareness of the existence of the given objects, as is suggested in the amoraic sources reviewed above; they focus rather on the content of this awareness, namely the specific purpose in mind.145 Furthermore, in these cases intention accompanies the physical act of bringing the objects in (to one’s home or courtyard), and does not suffice on its own, contrary to the situation in amoraic literature, presented in this article. Moreover, in both clauses it would be superfluous to examine the physical state of the objects discussed. These are liminal cases, in which the given objects may have various functions. The mental criteria are utilized as a last resort, when the usual criteria are not satisfactory. Thus, we may conclude that these two clauses do not point to the existence of a broad notion of handling and consumption on the Sabbath being governed by mental factors. Yet another pair of rules in the Tosefta presents the law as dependent on one’s declaration ahead of time.146 However, in these cases too, the physical state of the objects is the primary criteria, leaving one’s declaration as a secondary option.147 All four seemingly exceptional cases reviewed here, as well as five of the six instances of hitqin discussed above, appear in the Tosefta. It might well then be argued that the Tosefta is somewhat closer than the Mishnah to the mental approach evident in the amoraic discourse discussed above.148 Another possible reference to mental criteria in the tannaitic laws of muqse might be identified in the use of the adjective mukhan – prepared. In the Bavli, this term – is understood at times as denoting the preparedness of an object

145 Or to use the distinction suggested by Ithamar Gruenwald, “intention” rather than “intentionality,” idem, Rituals and Ritual Theory, 164–5. 146 “One may not remove wood from the sukkah, even on the last day of ḥag; if one said, ‘when I shall want to (use the wood) I shall remove (the wood),’ it is permissible,” t. Besah 3:9; “If one hang in it (=the sukkah) nuts… he shall not eat of them, even on the last festival of ḥag; if he stipulated a condition that he shall eat them on the festival it is permitted,” (t. Sukkah 1:7). 147 The wood and the fruit are part of thesukkah and therefore are not regarded as firewood or food, unless one made a specific condition before the festival began. It would appear that what is at stake is not the physical state of the objects but rather the human intention toward them. However, in these cases the ritual status of the wood and the fruit is in fact set by the physical use made of them. The Tosefta merely states that despite that, if prior to its use one stipulated other possible uses for these objects, this would affect their ritual status. This stipulation, at least in the first case, is verbal rather than mental. Furthermore, the phrasing of the stipulations here differs from those appearing in purity law and sacrificial law, “if one thought ḥashav( ),” e. g., m. Makŝ. 3:8; t. Zebaḥ. 3:1. 148 See Kretzmer-Raziel, “The Category Muqse,” 97, n. 363. For further examples of the Tosefta as an intermediate conceptual step between the Mishnah and the Talmuds, see D. Henshke, The Original Mishnah in the Discourse of Later Tannna’im (Ramat-Gan: Bar- Ilan University Press, 1997), 162–63 [Hebrew]; Furstenberg, “Restitution of Lost Prop- erty,” 15.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access Revolution or Evolution 419 in the one’s mind.149 Mukhan appears some twelve times in the Mishnah and Tosefta concerning consumption of goods and handling of artefacts on Sab- bath and festivals. Formulas using mukhan are the most common form of reasoning suggested in tannaitic sources for laws of muqse and therefore ana- lysing their meaning is crucial for our purpose. The word mukhan is irregular in Mishnaic Hebrew (MH). In contrast to Biblical Hebrew, in MH the root kwn appears usually as a consonantal root, formed in pi‘el and hitpa‘el. Not once do tannaitic sources use this verb in hif’il or huf ’al, aside from in the adjective mukhan. The root used for acts of preparation and establishment, instead of the Biblical kwn, is tqn. Mukhan appears almost only in the context of Sabbath and festivals, with but two exceptions.150 The appearance of the word mukhan in the Damascus Document (10:22) in the similar context of food consumption on the Sabbath, supports the conclusion that this word is a linguistic legacy from earlier forms of Hebrew and therefore its use in MH cannot be analysed semantically.151 We must therefore review the pragmatic use of this word in the legal context of Sabbath and festivals. In all twelve cases in which the adjective mukhan or its antonym eino min ha- mukhan appears in our context, there is an obvious act or physical situation that underlies the ascribing of the status to the given object. Pouring the oil into the candle, kindling the fire thus creating ashes, eating nuts and placing figs on the roof are all physical acts that determine the status of the objects.152 Like- wise, the fact that an animal was alive when Sabbath commenced or the lack of a ruling that permitted the consumption of the first born animal before the festival explain the impermissibility of the animals in their own right, without resorting to mental explanations.153 The focal point in these cases is the object itself and there is no hint that the law at hand takes interest in the human mind. Evidence to that effect may be sought in one of the two instances in which mukhan appears in other fields of law: One who slaughters on a boat, when he reaches land, if the blood (still) exists he must cover it, even though it has been said, “one may not slaughter on a boat unless he had dust ready (mukhan)”.154 Slaughter of fowl or beasts demand a ritual covering of the spilt blood with earth (Lev. 17:13). Mukhan here seems to mean “extant [on the boat]”. The rule cited by the Tosefta relates to the mere availability of the dust and the Tosefta is probably not interested whether the slaughterer had intended to use the dust a head of time for covering the blood or not.

149 b. Šabb. 29b; Pesaḥ. 56b; Besah 6b; Kiel, “In the Margins,” 10–12. 150 M. Kelim 28:2 and its parallel t. Kelim B. Bat. 6:8; t. Hul. 6:6, see below. 151 See in detail: Kretzmer-Raziel, “The CategoryMuqs e,” 67–70; idem, “Mukhan: The Rise and Fall of a Halakhic Category” (forthcoming). 152 See m. Šabb. 3:6; Besah 1:2; t. Besah 3:11; 4:1. 153 See m. Šabb. 24:4; Besah 3:4. 154 t. Hul. 6:6.

Downloaded from Brill.com09/26/2021 12:12:38AM via free access 420 Yoel Kretzmer-Raziel

Decisive proof for the sense of mukhan can be brought from the following clause: Ashes ignited on the festival may be used to cover (blood) on the festival, since it is not prepared (lefi she-eino min ha-mukhan). If one had (haya lo) dust in his home to plaster his roof, or lime to whitewash his home, it may be used to cover (blood).155 The ashes created from a fire ignited on the festival were non-existent before the festival and therefore are forbidden for use. In contrast, the dust and the lime were existent and were inside the home, so that despite one’s intention to use them for other purposes, they may be used on the festival for covering the blood.156 Having reviewed the obscure terms and the seemingly exceptional cases, it is safe to conclude that tannaitic sources do not place one’s intention as the basis for determining the permissibility of handling objects or consuming materials on the Sabbath. However, as suggested above, the ambiguity of tannaitic language might have contributed to the rise of the new amoraic conception of thought and awareness as determining factors in the muqse laws.

155 t. Besah 1:5. For the variant readings see the following note. 156 I based my analysis on version of MSs Vienna and Erfurt, which read mekhasin bo in the second sentence. In MS London and in editio princeps the version at the end of the second sentence is ein mekhasin bo – “they may not be used to cover”. Both versions appear already in two conflicting baraitot in the Yerushalmi (Beṣ. 1:2 (60b)), the positive as the primary version and the negative as the secondary one. The fact that two independent manuscripts, Vienna and Erfurt, hold the positive version adds credibility to this version as the original version of the Tosefta. (For an assessment of MS London and its closeness at times to editio princeps, see Brody, Mishnah and Tosefta, 63–77.) Moreover, the structure of the clause fits the common structure of contrasting cases brought together in one clause. In the Mishnah and Tosefta, cases introduced by hayu/haya lo following the setting down of the law in the previous sentence commonly denote a contrast between two close cases in the law set for them. It seems that the secondary version in the Yerushalmi as well as the version in MS London and editio princeps of the Tosefta were formed under the amoraic and rabbinic assumption that one’s intention is the determining factor in laws of muqse. One cannot count out the possibility that the Manuscripts of the Tosefta preserve two distinct traditions, dating back to Talmudic times, as has been suggested by A. Schre- mer, “Le-Mesoret Nusaḥ ha-Tosefta: Iyyun Rishoni be-Iqvot Sha’ul Lieberman,” JSIJ 1 (2002): 11–43. However, in our case, the divide is not along the same lines that Schremer drew, as MSs Vienna and Erfurt are in agreement with each other. Moreover, the data for Schremer’s conclusions can be analyzed otherwise, as has recently been shown by Brody, ibid., 91–107. But even if we were to accept the negative version of the Tosefta, it would not disprove my argument, seeing that the explanation, eino min ha-mukhan, relates to the first case alone.

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