xvi INTRODUCTION authoritative corpus of the beliefs and practices of Judaism: it is of the nature of Judaism that it can have no such thing. ‘The Law’, which alone is Jewish doctrine, has in it an inherent principle of development which, while holding fast to the foundations laid down in the Mosaic legislation, makes it intolerant of dogmatic definition or set credal forms. Yet, even so, the Mishnah is, after Sinai, the greatest landmark in the history of Judaism: it is Judaism’s most authoritative formulation of its religious system1 at a time when the people of Israel, the faith of Israel, and the Land of Israel were thought of as one and inseparable. In the most exact sense the Mishnah is the final expression of the Jewish nation’s unimpaired religious life: whatever modifications may have since arisen in the observances of Judaism have arisen out of conditions of exile, conditions in which the religion indeed persisted, but persisted as a thing incomplete, as a maimed survival.
Approximately the half of the Mishnah has no longer any practical bearing on the present religious practice of Judaism, nor had it any practical bearing even when it was compiled. This, however, has never detracted from its worth in Jewish eyes: this unattainable half of Judaism has been as much the object of diligent and devotional study in exile as the dietary laws or the observance of the Sabbath and the Festivals.2 The contents of the Mishnah may strike the modern reader as strange. Much of it does not conform with his preconceptions of what constitutes a ‘sacred book’. For the most part it is given up to a wide range of topics — agricultural, legal, domestic, commercial, and physiological — which seldom coincide with ‘religious subjects’ as the present-day mind conceives them; and a quarter of the book is devoted to the subject of ‘uncleanness’, which is studied and defined with elaboration of detail and classification, and its principles worked out and applied, in a fashion befitting the exposition of an exact natural science.
But in all this the Mishnah does no more than supplement with practical ' i.e. in the sphere of ceremonial observance. Except in the tractate Aboth and a few incidental passages (see General Index, s.v. ‘Ethical principles’), the Mishnah is not concerned with the devotional, ethical, messianic, and eschatological ideas peculiar to Judaism. Though prominent and popular topics in contemporary and later Haggadah (see App. I. to), they were never the subject of juristic argument or of that precise definition which is characteristic of Halakah. So long as there was no infringement of the plain and established sense of Scripture, and so long as it made for popular edification, the imagination was allowed free play.
1 Cf. Samuel Krauss, Die Misekna ( Volkssehriften Sber die judische Religion, Frankfurt, 1914), p. 49 f.: ‘Die damalige Judenheit lebte tatsichlich mehr in der Vergangenheit, und die Mischna ist die untrflgliche Zeugin dieses seltsamen Lebens. Ein starker nationaler Zug durchstromt die Mischna, der mit zu ihrer Bedeutung gehftrt. Diese trockenen Paragraphen schwelgen in der Erinnerung an die Vergangenheit und weckten dadurch liberal! die stirkste Zuversicht in die nahe Wiederherstellung der alten Herrlichkeit, cine fiber den Jammer der Gegenwart siegreich dahinschreitende messianische Hoffnung. Und wer konnte es leugnen, dass das Geffihle sind, deren das Judentum auf seinem langen Leidenswege nur allzusehr bedurfte? Die Mischna schuf dem heimatlos in der Welt umherirrenden und blutig verfolgten Volke die ideale Heimat, ein Vaterland und dadurch einen mSchtigen Halt und unendlichen Trost. Das war die letzte grosse Tat Pal as tin as im Dienste des Judentums; die alte Mutter Hess ihre gehetzten und gejagten Kinder nicht ohne innere Stirkung, sie Hess sie nicht ohne Hoffnung, den Weg zu ihr doch wieder zu finden.’
INTRODUCTION xvii INTRODUCTION xvii detail or give coherence to a range of topics found already in the Written Law, in the Pentateuch, where, as subjects of legislation, they are dealt with either in general terms only, or unsystematically or fragmentarily. These topics are all included within the single divine revelation; all are part of the inspired Word of God; the scrupulous fulfilment of the laws about Fringes and Phylacteries is as much a fulfilling of God’s purpose as absten¬ tion from idolatry and murder. Granted the acceptance of the Written Law as God’s will for Israel, Israel’s teachers had not the right to determine the relative importance of this or that injunction. Therefore the Oral Law preserves with equal piety customs and decisions arising out of the ‘lightest’ as out of the ‘weightiest’ precepts of the Law revealed to Israel at Sinai.1 II. ORIGIN AND DEVELOPMENT The Mishnah’s own account of the origin and history of the Oral Law is given in the tractate Aboth, ilfl. At the same time that the Written Law was given from Sinai, the Oral Law, too, was delivered to Moses, and handed down (orally) in turn to the leaders of successive generations — to Joshua, to the Elders (Josh. 2431), to the Prophets, to the ‘Men of the Great Synagogue’ (the body of teachers who administered and taught the Law after the time of Ezra), to Simeon the Just ( c. 280 or 200 B.C., one of ‘the remnants of the men of the Great Synagogue’), to Antigonus of Soko; then, in turn, to the five ‘Pairs’ of leaders — Jose ben Joezer and Jose ben Johanan (c. 165 b.c.), Joshua ben Perahyah and Nittai the Arbelite, Judah ben Tabbai and Simeon ben Shetach, Shemaiah and Abtalion, and Hillel and Shammai. Thus the chain of tradition was brought to the threshold of the Christian era.
The Mishnah, in other words, maintains that the authority of those rules, customs, and interpretations which had accumulated around the Jewish system of life and religion was equal.to the authority of the Written Law itself, even though they found no place in the Written Law. This, again, is but an assertion (known also in other religious and legal systems) that side by side with a written code there exists a living tradition with power to interpret the written code, to add to it, and even at times to modify it or ignore it as might be needful in changed circumstances, and to do this authoritatively.2 Inevitably the inference follows that the living tradition (the Oral Law) is more important than the Written Law,3 since the ‘tradition of the elders’, besides claiming an authority and continuity equal to that of the Written Law, claims also to be its authentic and living interpretation and its essential complement.
When we attempt to trace the growth, namely the conscious and deliberate amassing of this body of oral tradition, sanctified usage and precedent, we are in the region of guesswork. Since written laws cannot 3 See Sanh. 1 1 1: 'Greater stringency applies to the observance of the words of the Scribes [namely, the authorized exponents of the law] than to the observance of the [Written] Law.' Cf. Hor. i».
xviii INTRODUCTION anticipate all possible contingencies, or embrace every detail, or deal in advance with each possible case, it can be assumed that, in applying the Mosaic code to daily life and to the Temple worship, to domestic relations and trade and to the administration of justice, a multitude of usages arising out of practical necessity or convenience or experience became part of the routine of observance of the code, and, in the course of time, shared the sanctity and authority which were inherent in the divinely inspired code itself. Such accretion was, in the nature of things, susceptible to growth and modification according to gradual or sudden change of social and political conditions. We may assume the growth and establishment of such a traditional element before the Babylonian exile; but we cannot know to what extent continuity with pre-exilic unwritten tradition was preserved after the Return. During the centuries which elapsed from the coming of Ezra to the destruction of the Second Temple by the Romans, we may reasonably assume the growth of traditions arising out of the changing social and religious conditions experienced by the Jewish race — Persian suzerainty, the religious and national revival under Ezra and Nehemiah, the system of high-priestly rule, the pressure of Hellenistic civilization, the Maccabean revolt and the subsequent increase of lay influence in the control of Jewish affairs, and finally the intervention of Rome and the rise of the Herodian dynasty. We cannot, however, be certain when these traditions began to be considered as in themselves final and authoritative and part of the divine revelation, and, therefore, an object of zealous preservation and diligent instruction; we cannot, in other words, say certainly what was the beginning of the process of which the Mishnah marks a conclusion.
In religious systems which combine a written code with a body of traditional usage, there comes from time to time a stage when tradition is scrutinized and challenged. The reformer may either condemn all un¬ written tradition as superfluous and false; or he may treat it as unimportant and subject to change, and revise it or substitute a rival usage in accordance with his own preferences. The traditionalist, on the other hand, will adhere loyally and unquestioningly to every detail of traditional usage, and venerate it the more by reason of the attacks on its authority and sanctity; and he may also, for purposes of controversy, set himself to find in the written code itself explicit or implicit sanction for traditional usage.
Such a challenge to traditionalism we find in the Judaism of the second century b.c. Josephus, dealing with the controversy between Sadducees and Pharisees in the time of John Hyrcanus (135-104 b.c.), writes: ‘The Pharisees have delivered to the people a great many observances by suc¬ cession from their fathers which are not written in the law of Moses; and for that reason it is that the Sadducees reject them, and say that we are to esteem those observances to be obligatory which are in the Written Word, but are not to observe what are derived from the tradition of our forefathers.’1 It is a reasonable hypothesis that a result of this controversy INTRODUCTION xix — a controversy which continued for two centuries — was a deliberate com¬ pilation and justification of the unwritten tradition by the Pharisean party, perhaps unsystematic and on a small scale in the earlier stages, but stimu¬ lated and fostered from time to time both by opposition from the Sadducees and by internal controversy (such as, e.g., the disputes between the Schools of Hillel and Shammai) within the ranks of the Pharisees, culminating in the collections of traditional laws ( Halakoth ) from which the present Mishnah drew its material.
According to Jewish tradition1 the earliest manner of transmitting the substance of the Oral Law was by means of Midrash; that is to say, the Oral Law was taught in the form of an exposition or running commentary on the text of Scripture.1 This was an effective controversial device against the attacks of the Sadducees; but it was a complicated and cumbersome means of presenting the Oral Law as a whole; also, in effect, it conceded the Sadducean thesis that the Written Law alone was authoritative and that the traditional law was not binding. At some stage a more direct manner came into use, and the traditional laws, Halakoth, were taught and repeated independently of the Scriptural basis which was claimed for them (i.e. in specifically Misknah form), and arranged in whatever manner of grouping was found most convenient. The present Mishnah preserves traces of various systems of grouping3 which preceded the ultimately favoured system of six main Divisions according to topics, with further subdivisions into tractates.4 At the time of the destruction of Jerusalem and the Temple, Johanan ben Zakkai, who (Aboth 28) ‘received the Law from Hillel and Shammai’, established himself at Jabneh.5 He had been a prominent leader in Jeru¬ salem and a noted opponent of the Sadducees, and, after the extinction of Jerusalem as the great centre of Jewish life, there gathered around him a body of students of the Law who, partly by their own moral influence and * Reported by Sherira Gaon (bead of the Babylonian Jewish academy at Pumbeditha, e. 980) in his respomum to the Kairouan community (published by A. Neubauer, Mediaeval Jewish Chronicles, Oxford, 1887). See also p. M. Kat. iii. 7: ‘Who is deemed a disciple of the Sages? Hezekiah says: Whosoever has studied Halakoth together with [Written] Law. R. Jose said to him: What thou sayest was so beforetime, but now [he is deemed a disciple of the Sages who has studied] Halakoth only.’
1 This type of Midrash Halakah is preserved in the rabbinical commentaries on portions of the Pentateuch, known as Mekilta, Sifre, and Sifra. 5 See below, p. xxiv f.
4 On the problems arising out of this change from Midrash to Mishnah, see J. Z. Lauter- bach, 'Midrash and Mishnah, a study in the early history of the Halakah’, J.Q.R. (1915), v. 503-27, vi. 23-95, 303-23. He argues that the Misknah form adopted in teaching Halakoth can be traced back to the time of Jose ben Joezer (c. 165 B.c.), and that ‘the Misknah form was first used to teach those customs and practices which originated during the time when there was t>o official activity of the teachers’ (i.e. during the century which followed the death of Simeon the Just (see Ab. 1*), when, it is assumed, the guiding activities of the Soferim, the priestly interpreters of the Written Law, the successors of Ezra the Scribe (Sofer), came to an end, and a large body of traditional usages came into being and established themselves independently of Scriptural sanction, direct or indirect). 'Having no Scriptural basis, they could not be taught in connexion with the Scripture, i.e. in the Midrash form. ’ The Mishnah form was also found preferable when, even if a Midrashic basis existed, the proof was considered unsound, or when a rival proof was current.
5 Known in the Greek sources as Jamnia. It lies not far from the coast, a few miles south of Jaffa.
XX INTRODUCTION their reputation for knowledge of the Law and partly by the failure of any other organized body to survive the national catastrophe, came to be regarded by their fellow Jews as the successors of the Jerusalem Sanhedrin. The Roman authorities appear to have acquiesced to this court’s exercise of some measure of control and supervision over its co-religionists, and its Nasi (‘President’ or ‘Patriarch’) became the nation’s accredited representa¬ tive.1 Upon this Council or ‘Sanhedrin’ of Jabneh fell the duty of ad¬ ministering and interpreting the religious law and, most important of all, the urgent task of conserving the body of traditional laws and solving the new and confusing problems which arose in the numerous observances dependent on the Temple and the priesthood.
The sixty years of peace (a.d. 70-130! which the country enjoyed before the outbreak of the Bar Cocheba revolt witnessed the activities of those scholars (see Appendix III, the Second and Third Generation) to whom is due the formulation and definition of the Oral Law’ as we now have it (so far as concerns its essentials) in the Mishnah. The chief of these were Eliezer ben Hyrcanus, Eliezer ben Jacob, Joshua ben Hananiah, and Eleazar ben Azariah among the older contemporaries of the Patriarch Gamaliel II; and, among his younger contemporaries, Akiba, Ishmael ben Elisha, Tarfon, and Johanan ben Nuri. But by far the most outstanding figure during this period is Akiba ( c. a.d. 50-135). To him is due the present system of grouping the Halakoth, their more exact definition and, still more, their closer approximation to the Written Law. He was put to death during the Bar Cocheba revolt, either because of his enthusiastic support of it or because of his refusal to submit to the emperor Hadrian’s edicts against the practice and teaching of the Jewish religion. Behind him he left an illustrious group of disciples who preserved his teachings and continued his methods, and their opinions and arguments are a constant feature in the Mishnah. To this group belong Judah ben Ilai, Jose ben Halafta, Simeon ben Yohai and, chief among them, Rabbi Meir, whose work furnished the link between his master Akiba ’s teaching and the Oral Law as defined in the Mishnah of Rabbi Judah the Patriarch.
The Mishnah nowhere states that its editor was Rabbi Judah the Patri¬ arch, but in both of the Talmuds the fact is recognized and never disputed.
According to an early tradition,2 ‘Rabbi’ (as he is invariably styled in 1 This system of a Patriarchate of Palestinian Jewry was destined to continue for some 350 years. After the retirement of Johanan ben Zakkai the office became hereditary in the Hillel family. Tradition makes Hillel the Elder himself Nasi of the Jerusalem Sanhedrin, as also his son (Simeon I, c. a.d. 15), grandson (Gamaliel I, c. a.d. 35, the Gamaliel mentioned in the Acts of the Apostles), and great-grandson (Simeon II. ben Gamaliel, c. a.d. 60. one of the leaders in the revolt against the Romans). Gamaliel II (c. a.d. 90-130) son of Simeon II, succeeded Johanan ben Zakkai as Patriarch of the Court of Jabneh. He. we are told, went with three of his colleagues, c. a.d. 95, as a deputation to Rome on behalf of the Jews of Palestine on a mission whose purpose and result are not recorded. His son and successor; Simeon ben Gamaliel II, survived the massacre of Bether which marked the end of the Bait Cocheba revolt, 132-3, and when the ‘Sanhedrin’ was re-established at Usha in Galilee he was chosen Patriarch. His son was the Patriarch Judah I, ‘the Holy’, the compiler of the present Mishnah. After the middle of the third century Palestine gave place to Babylon as the main centre of Jewish learning, and the importance of the Palestinian Patriarchate gradually declined. 2 Genesis Rabba 58*.
INTRODUCTION xxi the Mishnali) was born in a.d. 135 on the day that Akiba was put to death. He belonged to the sixth generation in direct descent from Hillel the Elder, and he succeeded his father, Simeon ben Gamaliel II, as Patriarch about the year 165. His early life had been spent at the patriarchal court at Usha, in Galilee, where he had as his teacher R. Judah ben Ilai, whose opinions are cited in the Mishnah more frequently than those of any other authorin'. Other teachers of Rabbi were Simeon ben Yohai, Eleazar ben Shammua, Nathan the Babylonian, and Jacob ben Korshai. We are told that the lan¬ guage always spoken in his home was not the Aramaic dialect then current in Palestine, but Hebrew, the Holy Language: even the maidservants of this household spoke a pure Hebrew. He was also, we learn, an apt student of Greek. As Patriarch he resided first at Beth Shearim in Galilee, and during the last seventeen years of his life he lived at Sepphoris, also in Galilee. Here he compiled his Mishnah and here he died at a great age.! He is said to have lived on amicable terms with the local Roman repre¬ sentative and to have enjoyed the friendship of an emperor named An¬ toninus.2 Tradition surrounds the figure of Rabbi with unusual glamour: the luxury of his household was compared with that of emperors, and all nature’s gifts were his: he and his sons were alike endowed w'ith beauty, power, wrealth, wisdom, old age, honour, and the blessings of children. His exceptional piety earned for him the title of ‘Judah the Holy’.
According to a late source3 Rabbi, in drawing up his Mishnah, made use of thirteen separate collections of Halakoth; that is to say, he had a know¬ ledge of that number of varying systems by which the bulk or selections of the Halakoth had been transmitted in the names of the earlier authorities and by which they were taught in the schools of the disciples of these authorities. A young contemporary of Rabbi, Johanan ben Nappaha (d. 279), reports4 that ‘anonymous rulings in the Mishnah are those of Rabbi Meir (c. 160)...and all are according to the teaching of Rabbi Akiba’. The Mishnah itself refers to the Mishnah of Rabbi Akiba and to a ‘First Mishnah’ of still earlier date.5 It may be assumed, therefore, that the principal source used by Rabbi was the Halakah collection of Rabbi Meir, who had himself made use of the collection of his teacher, Rabbi Akiba.
Traces of other, and probably still earlier, collections are to be seen in the Mishnah ’s frequent use of the formula ‘Beforetime they used to say...but afterward...’6 Much of Rabbi’s material may go back to a time before or not long after the destruction of the Temple. Thus the tractates 1 About the year 220. But this date is purely conjectural.
2 Marcus Aurelius visited Palestine in 175 and Septimius Severus in 200. See S. Krauss, Antoninus und Rabbi, Vienna, 1910. According to Krauss, Rabbi spent his last years interned at Sepphoris by order of the Roman authorities.
* Sanh. 3*: ‘Such was the Mishnah of R. Akiba; but the First Mishnah.. See also Ket. 5*; Gitt. s*; Naz. 6l; Eduy. 7*. In the Gemara we find mention of a Mishnah of R. Eliezer b. Hyrcanus (Men. 18 a) and a Mishnah of R. Eliezer b. Jacob (Yeb. 49 b), both of whom belonged to the generation which preceded R. Akiba. In t. Zab. 1* occurs the passage: ‘When R. Akiba set in order Halakoth for the disciples.. which is taken to mean that Akiba was responsible for the present arrangement by topical division.
6 See especially Ned. 9*. Cf. Ned. ix1*; Gitt. 6‘; Nidd. 10*; Teb. Y. 4*.
xxn INTRODUCTION Middoth and Yoma which deal with the structure and the cultus of the Temple are, according to a reliable source,1 derived (so far as their anonymous contents are concerned) respectively from Eliezer ben Jacob and Simeon of Mizpah, both of whom lived at a time when the Temple was still standing. Another tractate, Tamid (‘The Daily Whole-offering’), seems to have been drawn upon by Simeon of Mizpah or to have been derived from him; and portions of the tractate Shekalim2 also bear indica¬ tions of a pre-Destruction origin. Again, there is a vivid section in Bik- kurim (32~8) which, in addition to its comparatively archaic Hebrew style, points directly, by its natural reference to king Agrippa, to a contemporary narrative: if the account had been purely traditional or an artificial recon¬ struction of life in the days of the Temple, the probability is that a king of Biblical times would have been mentioned instead.
It was Rabbi’s task to bring together this mass of Halakoth, the work of many generations, handed down in the form of miscellaneous collections of oral teachings, stored in many memories, and growing ever more com¬ plicated and unwieldy by reason of controversy between rival teachers and contradictory traditions; to reassemble this material and to present it as a single coherent whole, arranging it systematically, abbreviating argu¬ ments, summarizing discussions, rejecting what seemed superfluous, some¬ times in disputed cases giving his own ruling,3 or adding arguments if these seemed called for.
He did not reproduce his material in a rigidly uniform pattern, reducing it to a single standard of literary style: so far as possible he adhered to the principle of repeating a tradition in the very words in which it had been handed down.4 Nor did he omit a tradition because it had later been held to be wrong, or suppress the ruling of an individual Sage because it had been repudiated by the Sages as a whole.5 Thus Rabbi did not aim at promulgating the Mishnah as an authoritative, definitive legal code, a final summary of Jewish law, like the Shulhan Arukh of later times. It was, simply, a compilation of the Oral Law as it was taught in the many rab¬ binical schools of his time; it sought to contain all that was worthy of preservation in older or more recent collections, preserving even divergences of opinion, both such as had originated among earlier generations, as in the Schools of Hillel and Shammai, and such as were due to more recent disputes among the contemporaries and disciples of Rabbi Akiba. Many of these opposing views he leaves without any attempt to decide between them.
Judah the Patriarch’s prominence in the community, his reputation in the field of the traditional law, and the skill and modesty with which he fulfilled his task of bringing together into one carefully planned structure all the essential elements of the miscellaneous Halakah-c ollections of his 3 His name is attached some thirty times (probably by later hands) to rulings in the Mishnah. Sources outside the Mishnah show that he sometimes gives his own opinion as authoritative.
4 See Eduy. Is; Par. 1*.
5 See Eduy. 1 XXU1 INTRODUCTION predecessors, served almost immediately to win universal recognition for his Mishnah as the only complete and balanced statement of the Oral Law. It displaced all others and became the final authority for legal decisions.1