SYNOPSIS The Mishnah and Tosefta are two related works of legal discourse produced by Jewish sages in Late Roman Palestine. In these works, sages also appear as primary shapers of Jewish law. They are portrayed not only as individuals but also as “the SAGES,” a literary construct that is fleshed out in the context of numerous face-to-face legal disputes with individual sages. Although the historical accuracy of this portrait cannot be verified, it reveals the perceptions or wishes of the Mishnah’s and Tosefta’s redactors about the functioning of authority in the circles. An initial analysis of fourteen parallel Mishnah/Tosefta passages reveals that the authority of the Mishnah’s SAGES is unquestioned while the Tosefta’s SAGES are willing at times to engage in rational argumentation. In one passage, the Tosefta’s SAGES are shown to have ruled hastily and incorrectly on certain legal issues. A broader survey reveals that the Mishnah also contains a modest number of disputes in which the apparently sui generis authority of the SAGES is compromised by their participation in rational argumentation or by literary devices that reveal an occasional weakness of judgment. Since the SAGES are occasionally in error, they are not portrayed in entirely ideal terms. The Tosefta’s literary construct of the SAGES differs in one important respect from the Mishnah’s. In twenty-one passages, the Tosefta describes a later sage reviewing early disputes. Ten of these reviews involve the SAGES. In each of these, the later sage subjects the dispute to further analysis that accords the SAGES’ opinion no more a priori weight than the opinion of individual sages. They result in a narrowing of the scope of the SAGES’ opinion and a broadening of the scope of an individual sage’s opinion. By applying rational criteria, these reviews have the effect of undermining the SAGES authority. However, the full body of twenty-one Toseftan reviews is apparently motivated by an increased emphasis on rational analysis rather than an agenda to undermine that authority. This approach prefigures the later, more comprehensive use of rational analysis to evaluate the whole of tradition that is found in the Babylonian Talmud. KEY TERMS Mishnah, Tosefta, Sages, Authority, Tannaitic, Third Century C.E., Literary construct, Rational analysis, Halakhic midrash, Rabbi, Rabbinic, Amoraic, Talmud THE AUTHORITY OF THE SAGES: HOW THE MISHNAH AND TOSEFTA DIFFER by Carl Allen Kinbar submitted in accordance with the requirements for the degree of DOCTOR OF LITERATURE AND PHILOSOPHY in the subject of JUDAICA at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR: Dr P J Haas CO-SUPERVISOR: Prof J C Lübbe November, 2011 ACKNOWLEDGEMENTS It has been my good fortune to have worked with two remarkable promoters of this thesis, Dr. John C. Lübbe, recently retired from UNISA, and Professor Peter Haas. Dr. Lübbe’s concern for methodological issues, coupled with his very encouraging manner, made him an ideal advisor. His guidance concerning the European thesis model, chronicling the progress of research rather than anticipating results before the fact, was very compatible with the synoptic method employed in this thesis, providing me the flexibility to change course somewhat when some unexpected information surfaced, requiring additional research, during my work on chapter 6. Prof. Haas has been no less the ideal advisor, but in a different way. His detailed reviews of my chapters, always provided within days of submission, gave me the guidance I needed to streamline and focus my work. Although I suspect that he did not always agree with my ideas, his concern was not that I adopt certain views but that I express my observations and explanations with clarity and justify them reasonably, I am also thankful to my good friend Dr. John Fischer who suggested, argued, prodded, and nudged me to continue my studies. Most of all, I want to express my deep appreciation for the consistent support of my wife Anna during my years of graduate study and thesis writing. For a period of time she was more determined than I to see it through. I could not have done it without her. CONTENTS Acknowledgements i Introduction 1 Chapter One – The Tannaitic Milieu: Mishnaic and Toseftan Material 25 in the Halakhic Midrashim Chapter Two – The Mishnah and Tosefta Relationship Viewed 46 from the Talmudic Era to the Present Chapter Three – Tannaitic Dispute Forms 68 Chapter Four – Analysis of a SAGES Parallel 91 Chapter Five – SAGES Parallels in Mishnah and Tosefta Seder Mo’ed 109 Chapter Six – Views of the Authority of the SAGES 153 Chapter Seven – The SAGES as a Literary Construct: Authority and 174 the Role of Rational Analysis Appendix 1 – All SAGES Disputes in Mishnah/Tosefta Seder Moed 188 Appendix 2 – Reviews of SAGES and Non-SAGES Disputes in the 195 Tosefta and Mishnah Appendix 3 – The Use of Concession Language in the Tosefta and 196 Mishnah Bibliography 198 INTRODUCTION This thesis concerns two related works of legal discourse, the Mishnah and Tosefta, produced by Jewish scholar-sages in Late Roman Palestine. In these works, sages appear as central protagonists and shapers of halakhah (Jewish law).1 They are portrayed not only as a term that ,(חכמים) ”individuals and in small gatherings of sages, but also as “the SAGES seems intended to represent an authoritative majority or consensus of the network of sages, or of a sub-group such as the majority of sages in a certain city, or even the majority of a small gathering of sages. In order to distinguish this collective term from the more general use of “sages,” I use “the SAGES” (small caps) to refer to those who participate in halakhic discourse as a group with one voice. The way expressions such as “the SAGES say” are used in a vast number of halakhic disputes colors the SAGES with a collective authority that is not possessed by individual sages. The prominent role of the SAGES in the Mishnah and Tosefta provokes my thesis question, “How do the Mishnah and Tosefta depict the authority of the SAGES as a group?” The Mishnah and Tosefta were produced in the traumatic period following the destruction of the Second Temple in 70 C.E. Although there remained some hope that the Temple would be rebuilt, the removal of this center of Jewish national life proved to be the death knell for almost all Jewish religious sects of the time and also served as a powerful stimulus for the radical transformation of what remained. In the first one hundred and fifty years following the destruction of the Second Temple, a group of Jewish scholar-sages, known to us as the Tannaim, received, transformed, and transmitted the laws and lore of pre- destruction Judaism. The sages were literate, but they apparently carried on these processes primarily in the form of oral discourse and transmission. As the era was drawing to a close, the sages began to redact the traditions in a more formal manner. The first work of the sages to be redacted, in about 225 C.E., was the Mishnah, a compendium of halakhic (Jewish legal) discourse whose redactors selected, sorted, shaped, and supplemented received tradition. It is possible, though far from certain, that the Mishnah was written down when it was redacted; 1 I define words that may not be familiar to non-specialist when they first occur. They emboldened to draw attention to their importance of the role they play in this thesis. 1 even if written down, it is not established that it was circulated in written form during the third century. The Mishnah is divided into six parts, or Orders, according to these broad categories: Seeds, concerning with prayer and blessings, tithes, and agricultural laws Festival, concerning the laws of the Sabbath and the Festivals Women, concerning marriage, divorce, and related matters Damages, concerning civil and criminal law Holy things, concerning sacrificial rites and dietary laws Purities, concerning laws of ritual purity and impurity of the body and food These Orders are subdivided into tractates that focus on more discrete areas of halakhah. What actions are mandated, permitted, or forbidden? What is valid or invalid, ritually pure or impure? What penalties are imposed for infractions? The Mishnah later became a foundational work in the formation of Rabbinic Judaism. After the Mishnah and the waning of the Tannaitic period (70 - 225 C.E.), the scholar-sages produced about a half-dozen works concerning the legal implications of the biblical books Exodus through Deuteronomy. These works are known as the halakhic midrash collections (midrash may be loosely understood as “interpretation”). However, unlike the Mishnah, which is ordered according to subject matter, the halakhic midrash collections are structured as verse-by-verse commentaries. The halakhic midrash collections (also referred to as the halakhic midrashim or midrash halakhah) were probably redacted in the second half of the third century C.E. or just after the turn of the century (Stemberger 1996, 250-251). Although they were redacted after the closes of the Tannaitic period, which came to an end with the redaction of the Mishnah, they consist almost entirely of tannaitic materials. As is the case with the Mishnah, it is not known whether the halakhic midrash collections were written down when they were redacted or at a later time, and, if written, whether they were circulated in written or oral form. The Tosefta, a work similar to the Mishnah, was redacted at about the same time as the halakhic midrash collections (ibid, 157). Like these collections, it was redacted after the close of the Tannaitic period but consists almost entirely of tannaitic materials. The Tosefta is less tightly edited than the Mishnah, yet both are organized topically in the same six Orders and all but a few of the same tractates.