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
M. Yadayim 4:3 (T. Yadayim 2:16), the other concerning the celebration of the Festival of Booths in the Herodian Temple (T. Sukkah
3:1). 57 To be sure, Toseftan historiographical material—unlike the Mishnah—ascribes a few rulings of a halakhic character to biblical
heroes or figures who lived prior to the Roman occupation of Palestine. Thus authoritative acts of legislation regarding priestly service in
the Temple are ascribed in one passage to Moses, Samuel, and David (T. Taaniyot 3:2), while Shimon b. Shetah, a hero located by
rabbinic tradition in the reign of Alexander Jannaeus (see chapter 3), is said to have instituted on behalf of women an important
modification regarding the marriage contract (T. Ketubot 12:1). With the exception of these few instances, however, the Tosefta confirms
the impression received from the Mishnah. While some few halakhic norms may indeed have great antiquity, the halakhah itself,
conceived as a total body of tradition now preserved in the Sages' teachings, is the product of the recent past.
The Tosefta, in fact, differs markedly from the Mishnah in only one crucial respect: its tradents are far more willing than the Mishnah's
compilers to identify conflict and struggle for power as factors in halakhic legislation. We noted earlier the way in which M. Shabbat 1:4's
rather benign discription of the events in Hananiah b. Hezekiah's upper room is configured as a tragedy in T. Shabbat 1:16. This picture of
halakhic power politics prior to the destruction of the Temple is redrawn in the figures of post-70 authorities as well. Of the important
Yavnean Sages, Rabbi Eliezer b. Hyrcanus (T. Niddah 1:5) and Rabban Gamaliel II (T. Taaniyot 2:5), the Tosefta reports attempts after
their deaths to reverse their halakhic decisions. The report concerning Gamaliel, who presided over the High Court at Yavneh, is
especially revealing (T. Taaniyot 2:5):
1. As long as Rabban Gamaliel lived, the halakhah was practiced in accordance with his views. After the death of Rabban Gamaliel,
This passage assumes that the precise forms of halakhic practice in a given generation are anchored in the authority of a single individual,
the head of the Court (1). At the same time, after the death of such an authority, it is possible to reconsider those views and to alter the
norms by which the tradition is placed into effect within the community. In the present instance, of course, the attempt to nullify Rabban
Gamaliel's halakhic decisions fails (2–4), but the course of action is in principle conceivable.
Halakhah, in other words, may be tradition, but it is tradition subject to change and fluctuation in its specific implementation. This is so
precisely because it is grounded in the personal authority of human beings. As relations of power among the Sages shift, so too the
precise forms of embodying halakhic tradition in communal or private practice are likely to shift as well.
end p.82
Summary
Rabbi Yehoshua tried to nullify his views.
2. Rabbi Yohanan b. Nuri rose to his feet and said: May I observe that the body follows the head! As long as Rabban Gamaliel lived, the
halakhah was practiced in accordance with his views; now that he is dead you attempt to nullify his views?
3. Said Rabbi Yehoshua to him: Shall we not concede to you? Let us establish the halakhah in accordance with Rabban Gamaliel!
4. And not a soul questioned the matter.
Both the Mishnah and the Tosefta agree in their assumption that the substance of halakhic tradition is transmitted by word of mouth, from
teacher to disciple, as an orally managed body of knowledge. But this is not precisely equivalent to what first-century accounts of the
Palestinian Jewish scene knew as Pharisaic “ancestral tradition.” The crucial distinction is obvious: the rabbinic compilations routinely
portray the halakhic tradition as relatively recent in vintage—from Hasmonean-Herodian rather than Mosaic-Prophetic times—and subject
to marked alteration of its content and application. It is a tradition the shape of which is governed not by the weight of the past, but rather
by the creative impact of powerful personalities within the various institutions under rabbinic control.
To be sure, some few elements in the overall tradition are attributed to ancient legislators, such as Moses. But the example of Moses
serves only to legitimate the Sage himself as an originator of halakhic tradition, not merely its exponent. Just as the Sage is the recipient
of the tradition, having heard it from his teacher, he is also the molder of it, for his intellectual ingenuity and political instincts permit him to
shape the collective embodiment of halakhic tradition in accord with his own vision. There is nothing he can innovate that is not, if he has
the power to impose it, capable of entering tradition; there are few applications of tradition that are not, to a greater or lesser degree,
alterations in its current.
It remains to be pointed out, however, that within the Mishnah itself the conception of halakhah as a tradition constituted by its own
innovative applications under the authority of the Sages appears to be problematic. The problem is simple and predictable: if the Sages'
cumulative tradition of halakhic judgments is authoritative in Israel, what is the ultimate foundation of this authority apart from the power of
the Sages to impose it? In what way are the patterns of halakhic tradition connected to the abiding and unchanging patterns of Judaic
covenantal life inscribed in the texts of the Torah of Moses? In the Sages' wrestling with this issue we shall find the seeds of what
ultimately became the fully developed conception of two complementary, equally binding revelations, each mediated by a distinctive oral-
performative tradition—the one grounded in inscriptions upon a a scroll and the other inscribed solely in the memory.
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