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 han- dling 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 muqse – 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 crite- rion 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 Muqse 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 muqse is narrow. Muqse is used usually in the context of consumption rather than that of handling and is rarely ap- plied in discussions regarding the restrictions of handling vessels, see Kretzmer-Raziel, “The Category Muqse,” 265–72. Post-Talmudic rabbinic texts tend to use muqse as a general term concerning the prohibition of handling and consuming on the Sabbath. For convenience, I shall therefore use muqse here in the broad sense – prohibition of handling and consuming objects and materials on the Sabbath. For background and a short analysis of muqse, 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 as- suming intention, thought, or awareness as the premises for the law. Journal of Ancient Judaism, 9. Jg., 386–420, ISSN: 1869-3296 (print), 2196-7954 (online) © 2018 [2019] Vandenhoeck & Ruprecht GmbH & Co. KG, Göttingen 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 pu- rity laws, thus suggesting that internal hermeneutical forces lead to this turn. For convenience, I shall coin the two notions of muqse discussed here as “the physical approach” and “the mental approach.” Finally, I place this new inter- est 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 re- garding 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 rel- evance 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- Journal of Ancient Judaism, 9. Jg., 386–420, ISSN: 1869-3296 (print), 2196-7954 (online) © 2018 [2019] Vandenhoeck & Ruprecht GmbH & Co. KG, Göttingen Downloaded from Brill.com09/26/2021 12:12:38AM via free access 388 Yoel Kretzmer-Raziel argued that tannaitic jurisprudence is overwhelmingly realist, supplement- ed 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 dis- cussions 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 Muqse,” 188, n. 172 and extensively, J. L. Rubenstein, “Nominalism and Realism Again,” Dine Israel 30 (2015): 79–120.