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The Mishnah As Oral Torah: a Reconsideration* by Mayer I

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THE MISHNAH AS ORAL TORAH: A RECONSIDERATION* BY MAYER I. GRUBER Beer-Sheva The term 'Oral Torah' is used in at least five distinct senses. It is employed as a synonym of 'Talmudic literature''). It is used to refer to the manner in which the MIshnah and other Rabbinic texts are alleged to have been composed2). The term 'Oral Torah' may refer to the manner in which the Mishnah was published3). The term may refer to the manner in which the Mishnah was studied4). Often the term 'Oral Torah' refers to a body of God-given law distinct from but of equal authority with the Pentateuch, which, by * This article is a revision of a paper originally presented in the Early Rabbinics Studies section at the annual meeting of the Society of Biblical Literature at New York City in November 1979. I am most grateful to those who participated in that session for their enthusiastic response and for their having urged me to prepare the paper for publication. I am also grateful to Prof. Monford HARRISand to Prof. Stanley KAZANfor their constructive criticism of several earlier versions of this article. 1) So, for example, H. FREEDMAN,Kiddushin, Translatedinto English with Notes, Glossaryand Indices, The Babylonian Talmud, ed. I. EPSTEIN(London, 1936), p. 333, n. 3 defines the term 'Oral Law' in bQiddushin 66a as follows: "The whole of the Rabbinical elaboration and development of the Written Law, so called because it was originally not committed to writing but preserved by oral tradi- tion." On bQiddushin 66a see below, n. 13. 2) See Jacob NEUSNER,"The Rabbinic Traditions About the Pharisees Before 70," JJS 22 (1971), pp. 1-18. 3) See Saul LIEBERMAN,Hellenism in Jewish Palestine (New York, 1950), pp. 83-89. 4) We read as follows in bTemurah 14b (my translation as are all translations of ancient texts quoted in this article): "R. Judah b. Nahmani, the meturgemanof R. Simeon b. Laqish explained, 'One Scripture text (Ex. 34:27b) states, "Write for yourself these laws," and another text (Ex. 34:27c) states, "For by mouth [i.e., oral] are these laws" to indicate to you that 'oral laws' you are not free to transmit in writing and that [the laws] which are in writing you are not free to transmit oral- ly.' A Tanna of the School of R. Ishmael taught, ' ' 'Write for yourself these laws" means that you may write these[which are found in the Pentateuch], but you may not write halakot.' ' Cf.' the almost verbatim text in bGittin 61b. 113 way of contrast, is designated the 'Written Torah'-). This article deals only with the latter usage of the term 'Oral Torah'. In the preface to his book Early Rabbinic Judaism Jacob NEUSNER states, "What makes Rabbinic Judaism distinctive is its concept of the Oral Torah, contained within Mishnah-Tosefta, going back to Sinai and equal with the written Torah revealed to Moses 'our rab- bi'6)." He further states there, "It is Mishnah-Tosefta which the rabbis claim is Oral Torah')." Elsewhere NEUSNER points out that Josephus' description of the Pharisees in Antiquities 13:9:6 "makes no reference to an oral Torah or two Torahs8)." Joseph M. BAUMGARTEN9) and Lawrence H. SCHIFFMAN'O) have likewise shown that the Qumran law books speak neither of an oral Torah nor of two Torahs"). It is the attestion of polarities distinct from that of Oral Torah-Written Torah both in Josephus' description of the Pharisees in Antiquities 13:9:6 and in the Qumran law books that leads to the conclusion that Josephus' Pharisees and the Qumran sectarians each accepted a conception of Torah distinct from that of Oral Torah-Written Torah. Josephus' Pharisees possess in addition to the Scriptures not "the Oral Torah dictated by Moses" but paradosis 'tradition'. The Qumran sectarians divide God-made law into niglot and nistarot. The niglot are laws whose meaning is obvious to anyone who reads the Scriptures while the nistarot are the precepts for which only the Dead Sea Sect has the correct interpretation, which is based upon exegesis of the Pentateuch'2). It should be no less significant than the absence of the term Oral Torah from Josephus' description of the Pharisees and from the 5) So, for example, Leo JUNG, YomaTranslated into English with Notes, Glossaryand Indices,The Babylonian Talmud, ed. I. EPSTEIN(London, 1938), p. 134, n. 7 com- ments as follows on the text in bYoma discussed below, n. 13: "The written Law, i.e., the Five Books of Moses; the Oral Law, which Moses received on Sinai, han- ding it down to Joshua, the latter handing it down to the elders, the latter to the prophets, these to the men of the Great Synod (Aboth I, 1)." 6) Studies in Judaism in Late Antiquity, vol. 13 (Leiden, 1975), p. ix. 7) Ibid. 8) The Rabbinic TraditionsAbout the PhariseesBefore 70 (3 vols.; Leiden, 1971), vol. 3, p. 177. 9) See his Studiesin QumranLaw, Studies in Judaism in Late Antiquity, vol. 24 (Leiden, 1977), pp. 29-35. 10) The Halakh at Qumran, Studies in Judaism in Late Antiquity, vol. 16 (Leiden, 1975), pp. 75-76. 11) Contrast NEUSNER,Early RabbinicJudaism, p. 70. 12) SCHIFFMAN,pp. 22-32; 75-76. .
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