A TALMUDIC PROBLEM AND PROPOSED SOLUTIONS By HIENRY MALTER, Dropsie College IT is perhaps not too hazardous an assertion that in every branch of the world's ancient and medieval literature there are some works that stand out as a query awaiting solution. The problem often centers around the identity of the author, the time, the place, the mode, and the pur- pose of the original composition, or concerns all these points at once. Jewish literature offers more peculiarities than are known in any other field of ancient and medieval literature. It is particularly rich in such enigmatic pro- ductions, which have vexed the ingenuity of scholars past and present, and have given rise to new cycles of literature. Leaving the Bible with its immense problems aside, we need point only to the works or collections known as Mishnah and Talmud, and some of their immediate adumbrations, the origin and development of which have not yet been fully cleared up, in spite of the assiduous labors of many generations. For nearly a thousand years the authorities have been divided into two camps even on the question whether the Mishnah and the Talmud were transmitted in written form from the very start or were handed down orally during a period of five centuries. Somewhat nearer to our own time we are confronted by that mysterious book called Yezirah, by Eldad ha-Dani, by 75 76 THE JEWISH QUARTERLY REVIEW the Zohar, and several other works, which have kept and still keep the pens of the best Jewish scholars busy with new solutions for what seems insoluble. None of the anonymous or pseudonymous works in which Jewish liter- ature abounds, offers, however, so many perplexing dif- ficulties to the investigator, as the work known under the name Tosefta, a collection which has given rise to the most contradictory theories and bitter controversies. The purpose here is not to give a detailed account of these theories. My chief concern is to present to the reader a synopsis of one of the most complicated talmudic problems and to point out the great importance which one of the proposed solutions may have for our conception of the entire post-biblical history of the development of Juda- ism. I refer to the works and views of Dr. M. S. Zucker- mandel. Before entering upon the discussion of his recent work on the subject we may briefly pass in review the main theories advanced and held regarding the Tosefta, during the last fifty years. For those not familiar with the subject a few words descriptive of the Tosefta may not be out of place by way of preliminary. The Tosefta (properly a plural: Tosefdta), meaning addition or supplement, is a collection of tannaitic teach- ings and maxims (halakot). In its present form, it may be called a duplicate of the Mishnah. Like the latter it is divided into six orders or sections, subdivided into treatises bearing, with slight variations, the same titles as the cor- responding treatises of the Mishnah. The content, too, is practically the same; the main difference between the two is that the Mishnah presents the traditional law in a highly condensed form, whereas the Tosefta gives, aside from new material, the same maxims more elaborately, adding A TALMUDIC PROBLEM-MALTERR 77 some elucidating remark or introducing a new aspect under which a certain law is applicable. In its present, or perhaps in an earlier, redaction the Tosefta is referred to already in the Talmud,1 where its origin, at least in spirit, is attributed to R. Akiba. Aside from the specific references to the work as a whole, there are very numerous passages, called Baraitot, scattered throughout the Babylonian and Palestinian Tal- muds, which occur either verbally or in a somewhat dif- ferent form, also in the Tosefta. The question thus arises, whether these sentences are merely citations from the work before us, with only verbal changes or are taken from some earlier collection, now lost. Both assumptions involve serious difficulties, and of the various solutions offered, none settles the matter definitely. No less puzzling is the question of the authorship of the extant Tosefta. According to tradition the author of the present Tosefta is the Tanna R. Hiyya b. Abba, a pupil of R. Judah ha-Nasi, the compiler of the Mishnah. The first author to credit R. Hiyya with this work is the Gaon Sherira (tenth century) in his famous chronological treat- ise ( 1Ib Km'<W '1 mmn ). His view is repeated by Mai- monides in the introduction to his Commentary on the Mishnah, and by others after him. Modern critics, how- ever, reject this view as untenable for various reasons, one of which is that Hiyya himself and even his disciple, the Amora Rab,2 occur in the Tosefta as speakers, a circum- stance that points to a final redactor later than Hiyya. 1 Sanh. 86a; Yoma 700; see, however, Weiss, Dor, Wilna I904, II, 197, who denies this. 2 See Hoffmann, Magazin fiir die Wissenschaft des Judenthutms, XI, 126. 78 THE JEWISH QUARTtRLY REVIEW M-odern research into the problem of the Tosefta was inaugurated by the great talmudic critic Zecharias Frankel, whose thorough discussion of the question in his :'ii ,nit', (1859), p. 304-8, and 'rwv,vn i3: (1870), p. 22-27, gave the impetus to new investigations. In Frankel's theory the Tosefta is a combination of two independent Baraita collections, namely one by R. Hiyya and one by his disciple R. Hoshaya, in which the views of the former are dominant.' That the numerous Baraitot quoted in the Talmuds as from the Tosefta differ so widely from the corresponding text of the Tosefta itself, he explains as due to the fact that these Baraitot were taken from the independent collections of R. Hiyya and R. Hoshaya before these were blended together by a later redactor into one text. Subsequently additional material, based on the Talmuds, was freely interpolated. Not satisfied with the results obtained by Frankel, J. H. Diinner advanced a somewhat complicated theory of his own. The Tosefta, he holds, is the work of some compiler who lived after the conclusion of both Talmuds, or about the beginning of the sixth century. This com- piler utilized not only the various Baraitot, found in the Talmuds, but also drew upon old authentic material of tannaitic law, which had originally been the source of the Mishnah, and which was lost after the redaction of the Mishnah had been made and remained unknown during the whole period of the Amoraim.4 This explains, accord- 3 In a fragment of a manuscript belonging to Judge Mayer Sulzberger, which was published by Prof. Schechter, Saadyana, p. 141, n. i, R. Hoshaya is considered the author of the Tosefta (communication of Prof. Alexander Marx). 4 Monatsschrift fiir Geschichte stnd Wissenschaft des Juldenthums, 1870, 298-308, 355-564. A TALMUDIC PROBLEM-MALTER 79 ing to him, the divergences between the Baraitot quoted in the Talmud and their parallels in the Tosefta. Both Frankel's and Diinner's views were opposed by I. H. Weiss. He assumed that the compiler, a Palestinian by birth, lived in Babylonia during the last generations of the Amoraim (about 450-70 C. E.) and drew his material from different sources, making liberal use also of the dis- cussions in both Talmuds (Dor, II, I93 ff.). These theories, and especially those of Diinner and Zuckermandel (see below), were opposed by Adolf Schwarz. Going further he criticises the value of any in- quiry into time and authorship of the Tosefta as long as the relation of the Tosefta to the Mishnah was net de- finitely established. On this point Schwarz in his article "Studien iiber die Tosifta"' propounded a new theory holding that the paragraphs of the Tosefta were in a hope- less state of confusion, and had to be completely rearranged in accordance with the paragraphs of the Mishnah. He followed out this plan in his works "Die Tosifta der Ordnung Moed," I-II, Carlsruhe I879-82, and "Tosifta juxta Mischnarum Ordinum Rccomposita et Commcntltario Instructa," I, Wilna I890, Frankf. a-M. I902. The exact counterpart of the view of Schwarz was adopted by the late Nehemiah Briill, who on various occa- sions' shows how the original wording and order of the Mishnah can be reconstructed on the basis of the Tosefta. In a separate article discussing the origin and meaning of the Tosefta, Briill maintains that it is a product of tannaitic 5 Monatsschrift, 1874, 464 ff; 1875, 274 ff. 6 Jahrbiicher fiir jiidishe Geschichte und Literatur, V, 145-8; VII, 140-4; Central-Anseiger, 189I, 70. 80 THI: JIEwISHI QUARTERRLY REVIEW times in a somewhat later redaction, and in its present form, it is referred to in the Talmud.' A somewhat different view is taken by David Hoff- mann. Unlike Frankel, who claims that the Tosefta origin- ated contemporaneously with the Mishnah, he places the Tosefta somewhat later in time and assumes that just as the original Mishnah of the older Tannaim went through several stages and was subsequently embodied in and superseded by the redaction of R. Judah ha-Nasi, so the original Tosefta may have been absorbed in the later redaction of R. Hiyya, which constitutes the Tosefta now extant. The Amoraim of both Talmuds have made frequent use not only of our Tosefta but also of other Tosefta collections no longer in existence. Hoffmann further claims that all the quotations in the Talmuds, which are introduced by the phrase wsn n,i3 (:rn), "it was taught regarding it" (i. e. the Mishnah), have reference either to our Tosefta, where such passages are found sometimes with mere verbal differences, but far more often with differences in substance-, or they refer to the Toseftot now lost.8 The above summary does not exhaust all the theories that have been advanced regarding the Tosefta; the others, covering the problem wholly or in part may, however, be left out of consideration here.