Torah in the Mouth.pdf

More documents

Recommendations

Info

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 It is in this usage that the connotation of halakhah passes almost seamlessly from “tradition” to its usual rendering, “law,” such as a body of conventional rules and procedures deemed normative by a majority of Sages: “One accepts [šwm‘yn: literally, “hears”] this [view], for he spoke in accordance with the halakhah” (M. Peah 4:1–2); “If this is halakhah, then we'll accept it, but if it is a result of logical inference, one may demur” (M. Keritot 3:9); or, ubiquitously, “And the halakhah is in accord with his views.” In such cases, a halakhic report is acceptable because it conforms to a preexisting, collectively maintained corpus of norms. But as soon as we recognize that halakhah, in addition to its sense as “tradition,” routinely bears the sense of “law,” we must immediately ask: What kind of law? 37 end p.75 Halakhah as a Modality of Law Surprisingly, the term halakhah appears hardly at all in that major division of the Mishnah, the Order of Damages, which is concerned with the judicial and legislative institutions of Israel. Further, in the Mishnah as a whole, I find no cases in which the Jerusalem High Court (Sanhedrin) of the Second Temple period, which the Mishnah portrays as a rabbinic institution combining judicial and legislative functions, is said to have legislated a halakhah. 38 Rather, legislation has its own distinctive terminology: courts or individual Sages “establish” or “ordain” (tqn) 39 this or that practice (e.g., M. Rosh Hashannah 4:1–4, M. Sheqalim 7:5–7); they “decree” (gzr ) that such and such a procedure must be enacted or that public fasts must be held (e.g., M. Yadayim 4:3, M. Taanit 3:6). Similarly, where the High Court recommends a course of action based upon its interpretation of scriptural commandments, it issues its results as a hwr'h, a “teaching” or “instruction,” not as a halakhah (e.g., M. Horayot 1:1). This representation of the situation prior to the destruction of Jerusalem in 70 CE is consistent with that drawn of judicial procedure after the reconstitution of the Sanhedrin at Yavneh in the following decades. Sages and courts are still depicted as instituting normative practices and promulgating decrees, but the legal utterances that formulate these norms are not identified as halakhah. Rather, in the context of judicial procedure halakhah represents a question brought to the court's attention for a ruling. Precisely this notion of halakhah is discernible when one compares parallel formulations of a court case transmitted in the Mishnah and the Tosefta. M. Parah 7:6 records a ruling concerning the extent to which a particular act performed in the course of a purification ritual might impair the rite's effectiveness. The ruling is glossed as follows: This went [hlk] to Yavneh on three successive Festivals [for evaluation]. And on the third Festival they declared [the result] suitable [not as a permanent practice, but only] as a temporary measure [hwr't š‘h ]. Note the Tosefta's version at T. Parah 7:4: In regard to this halakhah did the residents of Asya 40 go up to Yavneh on three successive Festivals. And on the third Festival [etc.]. The Tosefta's parallel rendering of the Mishnaic tradition adds two pieces of information lacking in the Mishnah. First, it identifies the party, “the residents of Asya,” that brought the Mishnah's case to the attention of the Yavnean Sages. More important from our perspective, it discloses a fundamental conception of the status of cases brought before the court. The conception lies in the assonance of the Mishnah's operative verb, “went” (vocalized as halakh), and the Tosefta's identification of halakhah as the item placed at the court's discretion. We cannot reconstruct the literary history of these parallel versions. It is possible that the Toseftan tradent, hearing the Mishnah's halakh, subconsciously filled in the details with the appropriate noun. It is equally possible that the Toseftan report is the basis of a Mishnaic abbreviation. 41 In either tradition-historical scenario, the fact remains that the Tosefta clearly understands by halakhah a problem requiring end p.76 judicial attention, rather than a judicial pronouncment; it is a fact used in the court's deliberation, not a statement of the court's establishing the law. Another usage of halakhah in a judicial setting will add yet further texture to the Mishnah's sense of the term's legal character. The example comes from one of the rare appearances of the halakhah in the Order of Damages itself. Tractate Sanhedrin, which discusses the constitution of the judicial system, the jurisdictional powers of various types of courts, legal process, and so on, concludes with a list of capital crimes and appropriate methods of execution. Among those subjected to execution by strangulation is a prophet who, in Scripture's terms, “presumes to speak in My name an oracle that I did not command him to utter, or who speaks in the name of other gods” (Dt.18:20). Of him M. Sanhedrin 11:6 reports: One who prophesies in the name of [a god honored by] an alien cult and says: “Thus said the [god of the] alien cult”—even if he PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2003 - 2011. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/oso/public/privacy_policy.html). Subscriber: Columbia University; date: 20 September 2011
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 agreed with the halakhah to declare as polluted that which is [in fact] polluted or to declare as pure that which is pure [—he shall be executed by strangulation]. The point of interest here is that the law broken by the prophet is that of Scripture, which prohibits delivering oracles in Israel in the name of foreign gods. The Mishnah simply adds that such prophecy is a capital crime even if the actual message is in entire conformity with halakhah. Halakhah in this passage refers to the particular traditions of the Sages about ritual pollution, discussed in great detail in the Order of Purities. The stricture against pseudo-prophecy for which one may be punished is not a halakhah, it is a biblically grounded commandment (m wh, vocalized mitzvah). One can break a commandment even by teaching a unanimously held halakhah—if one ascribes it to a foreign god rather than to the authority of the Sages. So where the Mishnah has an opportunity in its discussion of civil and criminal law to refer to halakhah, it means not a law enforceable by judicial sanction, but a verbal tradition about a custom or practice that can come under the scrutiny of the court—in short, a matter that must be addressed by a legal authority in order to pronounce the law. 42 It is, in fact, among the narrative materials of the Tosefta that we find the richest depiction of the wide range of contexts in which issues of halakhic interest are reviewed, discussed, and declared binding. All of these are portrayed as oral, face-to-face encounters in which written texts have no role. Among them are mealtime discussions akin to philosophical symposia, 43 conversations between Sages and disciples during travel, 44 formal oral-performative recitations of tradition, 45 conflict situations between a Sage and a rabbinic or nonrabbinic opponent, 46 official judicial deliberations, 47 and the like. In many of these, the narrative suggests that conflicting halakhic opinions can be resolved by the ad hoc decisions of Sages in the absence of any formal deliberations, which decisions are then passed on as binding practice, halakhah. Thus, T. Berakhot 1:4 reports the following incident involving two Sages of the Yavnean Academy, active during the first third of the second century CE until the Bar Kosiva rebellion of 132–135. The Toseftan text is deeply intertwined with a parallel Mishnaic report (M. Berakhot 1:3) regarding the posture for reciting the scriptural end p.77 passages known in rabbinic tradition as the Shema, and it adds the following (T. Berakhot 1:4): 1. A report concerning Rabbi Ishmael and Rabbi Eleazar b. Azariah, who were tarrying in a certain place: 2. Now, Rabbi Ishmael was reclining and Rabbi Eleazar b. Azariah was upright. When the time for the recitation of the Shema arrived, R. Ishmael arose [to recite it standing], while Rabbi Eleazar b. Azariah reclined [to recite it reclining]. 3. Another version [of Rabbi Ishmael's reply]: So that the disciples shouldn't see [both of us reclining to recite] and enact the halakhah permanently in accord with your views! The glossator's comment, section 3, is instructive: the actions of Sages are presumed to reflect halakhic norms received from their teachers. Where there is a conflict of such norms, however, yet where two Sages are observed to accord with one of the conflicting versions, disciples will determine normative practice in the future in accord with the precedent of the Sages' actions. Sages, then, determine the halakhah by their acts, and disciples pass that determination into custom. There is no question here of institutional adjudication or formal judicial legislation. No consultation of a written text intervenes between the perception of a legal issue and its authoritative resolution. Rather the rendering of the halakhic decision is as simple as a bodily action. Its representation in the medium of spoken narrative transmits its legal force as an abiding element of the oral-performative tradition. But matters are not always so clear-cut. In addition to reports of halakhic determination set in informal settings, the Tosefta, unlike the Mishnah, portrays the promulgation of halakhah as a judicial activity of the High Court. The richest picture of the halakhic tradition in legal dress comes from an extended account of the procedure for clarifying an obscure halakhic question. It is reported in the name of Rabbi Yose b. Halafta, a Sage central to the reconstitution of the rabbinic movement, in about 140 in the Galilean town of Usha, after the failure of bar Kosiva. In the mid-second century, from the perspective afforded by a recent, catastrophic war that witnessed the deaths of important teachers, the procedure of the ancient Sanhedrin was recalled rather nostalgically as follows (T. Sanhedrin 7:1/Hagigah 2:9; cf. M. Sanhedrin 11:2): 48 Said Rabbi Ishmael: What is this, Eleazar? He replied: Ishmael, my brother, . . . I, who had been upright, reclined [so as to recite in the appropriate posture], while you, who had been reclining, arose [for the same reason]. He replied: You reclined in order to carry out the views of the House of Shammai, while I arose in order to carry out the views of the House of Hillel. 1. In the early days there were no disputes in Israel. Rather the Court of Seventy [judges] was in the [Temple's] Chamber of Hewn Stone, and the other courts of twenty-three were in the towns of the Land of Israel. Two courts of three each were in Jerusalem—one on the PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2003 - 2011. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/oso/public/privacy_policy.html). Subscriber: Columbia University; date: 20 September 2011
Page 1 and 2: Torah in the Mouth, Writing and Ora
Page 45: Torah in the Mouth, Writing and Ora
Page 97 and 98:
Torah in the Mouth, Writing and Ora
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Page 141 and 142:
Page 143 and 144:
Page 145 and 146:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 173:
show all

Torah in the Mouth.pdf

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?