Torah in the Mouth.pdf

Torah in the Mouth, Writing and Oral Tradition in Palestinian Judaism, 200 BCE - 400 CE
Jaffee, Martin S., Samuel and Althea Stroum Professor of Jewish Studies, University of Washington
Print publication date: 2001, Published to Oxford Scholarship Online: November 2003
Print ISBN-13: 978-0-19-514067-5, doi:10.1093/0195140672.001.0001
knows of a second case in which Rome sends two officials “to Rabban Gamaliel of Usha” to study “mishnah, midrash, halakhot, and
aggadot.” I cannot explain the puzzling mention of Usha in connection with Rabban Gamaliel. But the narrator clearly has Rabban
Gamaliel II in mind. Moreover, the subject of the tale—Gentiles who approach a Sage in order to learn Torah—is similar to that of the Sifra
passage.
P. Schäfer, “Das Dogma von der Mündlichen Torah,” pp. 181–183, argues on the basis of these passages and others involving Hillel and
Shammai (e.g., B. Shab. 31a, Avot de-Rabbi Nathan, A15/B29) that the conception of two Torahs emerged in the social setting of
controversies with non-Jews in the Yavnean period.
24. The term appears in the following Tannaitic compilations:
end p.191
Mishnah: Orlah 3:9; Yevamot 2:4, 9:3; Sanhedrin 11:3; Parah 11:5–6; Tohorot 4:7 + 11; Yadayim 3:2.
Tosefta: Taaniyot 2:6; Yevamot 2:4, 3:1 (/M. Yevamot 2:4); Qiddushin 5:21; Eduyyot 1:1 + 5; Kelim Bava Batra 7:7; Parah 11:5;
Niddah 9:14; Miqvaot 5:4; Tevul Yom 1:10.
Sifra: Shemini per. 2:11; Shemini par. 8:5; Zabim par. 2:13; Emor par. 10:11 (/M. Orlah 3:9); Behar per. 4:5.
Sifre Numbers: Behaalotekha 73, 75.
Sifre Deuteronomy: Re'eh 115, Shofetim 154.
For discussion of the general problem of the “words of the Scribes,” see S. Safrai, The Literature of the Sages , pp. 148–153; E. Urbach,
The Halakhah, pp. 102–105; and E. P. Sanders, Jewish Law from Jesus to the Mishnah , pp. 115–117. My own discussion here is drawn
from an earlier article, M. Jaffee, “Halakhah as Primordial Tradition,” pp. 99–107. I wish to thank the original publisher, New York
University Press, for permission to use this material.
25. Compare on this point the comments of E. Urbach, The Halakhah, pp. 102–103.
26. The Hebrew, ‘rlh literally refers to the foreskin. In rabbinic usage the term is extended metaphorically to tree-fruit prior to its fourth year
of bearing. The metaphor is grounded in Lev. 19:23: “You shall regard its foreskin, its fruit, as uncircumcized [w‘rltm ‘rltw 't pryw ].”
27. The exegetical grounds are supplied at Sifra, Emor, par. 10:11, which itself depends upon a formulation attested at M. Qiddushin 1:9.
This is an excellent example of what later talmudic jurisprudence terms a ruling bearing the authority of the Torah (d'oraita). In talmudic
contexts, the term encompasses both explicit scriptural proscriptions and those exegetically derived from those proscriptions. For
discussion, see J. Roth, The Halakhic Process, pp. 13–48, and M. Gruber, “The Meaning of 'orait'a in the Babylonian Talmud,” pp. 25–33.
28. Y. Orlah 63b and B. Qiddushin 38b–39a record a dispute over this issue between the mid-third-century Amoraim, Samuel and Rabbi
Yohanan. The former holds that halakhah in this context refers simply to local custom (hilkhot hamedinah: cf M Baba Metzia 7:8), while
the latter maintains that the reference is to Mosaic halakhah received at Sinai. Neither party expresses an opinion on the import of divrei
soferim, yet the ensuing analysis in Qiddushin 39a (bottom) makes it clear that, for the editors of this discussion at least, the “scribes” are
merely Sages who enacted an edict against diverse kinds in the diaspora (bhw l'r nmy gzrw bhw rbnn ). As I hope my own discussion
makes clear, this editorial understanding must be seen as already reflecting the process by which various sources of tradition have come
to be homogenized into a monolithic halakhah stemming from the distant past yet incorporating within it mechanisms of innovation
reserved for the Sages.
29. Cf. Mekhilta de-Rabbi Ishmael, Mishpatim, par. 2: The Torah said [of the servant who prefers servitude to freedom (Ex. 21:6)]: “And
his master shall pierce his ear with an awl”; but the halakhah said [he does so] with any tool.
The Palestinian Talmud intensifies the point by having the halakhah “supersede” the Torah (‘wqpt: Y. Qiddushin 59d). Cf. B. Sotah 16a
(“uproot,”‘wqrt).
30. One oft-cited exception, upon examination, turns out to be no exception at all. M. Sanhedrin 11:3 states, “The words of the scribes
bear greater sanction than the words of the Torah.” In the context of the passage, the point is that, as far as the teaching of the law is
concerned, misrepresentation of scribal teaching is more serious than a misrepresentation of scriptural law, for scriptural law is publicly
known while scribal teaching remains the professional, therefore private, possession of the scribes. It is in this light that I interpret the
other early passage, this from T. Taaniyot 2:6/T. Yevamot 2:4, which holds that scribal teachings should be more strictly enforced than
scriptural rules. The reason is that they are less known and bear lesser intrinsic authority. In general, my position accords with that of E.
Sanders, Jewish Law from Jesus to the Mishnah , pp. 115–117. For a diametrically opposed interpretation of this matter, which identifies
scribal teachings with Sages' halakhic traditions, see S. Safrai, The Literature of the Sages , p. 151.
31. The scriptural ruling deems food unclean if, after it has been dampened with water, it comes into contact with a primary source of
uncleanness, such as a dead animal
end p.192
(Lev. 11:35). The scribal tradition adds to this rule a more attenuated degree of uncleanness befalling food that has come into contact with
the unclean food (M. Zabim 5:12). Such food is intended here.
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