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UL bee Ephraim E. Urbach The Halakhah, Its Sources and Development “Translated from the Hebrew by Raphael Posner al Yad la-Talmud (CHAPTER Vil INTERPRETATION AS THE SOURCE OF HALAKHAH 1 previous chapters we have discussed the institutional character of early Halakhah, which is irdieated by two factors: the absence of differences of pinion and anonymity. [t was not imterpretive dialectics or theoretical debace which fixed falthor but rather authority. The authority was that of tnsticutions, which is why names of individuals are not mentioned at che most some ofthe tabkanot and geseot are comnected with the men who stood at the head ofthe institucions — the presidents or the avot ht dn, Rav Sherira Gaon was already awateof ths phenomenon as is clear from a section of his Famots Tewer:! “This is how it was, The first Sages are not known by name; oly the names ofthe presidents nd heuds[of the courtsare known tous] becaise they had no ditierencesof op nion [among them), They knew all the reasons of the Torah with clear knowledge.” In my opinion, Rav Sherira Garon docs not mean that differences of opinion did not exist but rather that the different ‘opinions which were expressed in the discussions which led to the decision became obsolete once tke decision was taken and there was no need to record them. Rav Sherira himself makes this point in another passage: “These early Sages from before the destruction of the Temple had no need to do so [i.e record their opinions) since they were dealing with the Oral Law. Their reasons were nor stated in known matters such as the written Torah, They knew and considered their reasons in their heatts and each one taughe bis disciples like aman conversing with his friend, teaching them in any formulation he chose. When [the Sages] gathered in the Chamber of Hewn Stone or in the study-ha ls het reasons] were in good order and ready to be stated immediately. They were sovereign and had no trouble or fear and they were helped from heaven. The reasons of the Torah were as clear to them as the law [was] t9 Moses a Sinai; there was neither disagreement nor discard.” Ray Sherira based his description of the decision-making process om 93 4 ‘well-known bunt: “R. Jose said: Originally there were no differences of pinion in Israel. The court af seventy-one satin the Chamber of Hewn Stone and ewo other courts of twenty-three sat, one on the Temple Mount and the ‘other at the entrance to the Temple Court. Other courts of twenty-three sat inthe cities of Israel. When a matter had to be asked... When the numbers of the ssudents of Hillel and Shamai who did nor serve [i.e study ] sufficiently increased, differences of opinion began to emerge and the Torah became as two Torahs.") Samuel’s statement (TB Temurah 15b), “All the eshkolot [complete scholars] from Moses until the death of Jose b. Joezer studied Torah, Tike Moses; from then on they did not study Torah like Moses, is also to be understood as meaning that until Jose B. Joezer the Sages taughe "decided Halachah without differences of opinion.”* Tt appears that this notion is also the background to 2 geonic responsum regarding the “men of deeds”: "Concerning that which you asked about the “mer of deeds' [anche ma'aich]. Know that from the days of Moses until Hillel the Elder there were six hundred ordets of Mishnah asthe Almighty had given them to Moses at Sinai but from Hillel onwards humanity diminished and became wretched nd the glory of Torah became weaker and from [i.¢., after] Hillel and Shammai they fixed only six orders and these are they which were fixed by the men of the Mishnah (not the early ones] and not by the “men of deeds" who were the fist."* The "men of deeds” were the early elders (celcnim) as inthe mishnah (Yadayim 4:3), [The law concerning tithes in] Egyptis a deed [ma'aseh] of the elders.” The lawsof the “elders” and the “men of deeds” were the result of deliberated legislation and the outcome of court ‘verdicts, tis possible chat their “six hundred orders” were orders similar 0 ‘sroups of halathot which sill appear inthe extant Mishnah, such as “the order ff the daily sacrifice” in Tractate Tamid, “the order of the [Yom Kippar] service" in Tractate Yora and “the order of the ceremony of the Sotah" in the tractate of chat name. Differences af opinion among the Sages existed in the earliest period but the process of establishing the valid halaheh did notallow the mention of “the swords of the individual among the words ofthe many to no purpose” (Eduyot 1:6). When the “glory of the Torah became weaker” only six orders were taught but those six do include ‘the words ofthe individual among the words ‘of the many."" The six ordersof the Mishnahas we have it... the Mishnah of R. Judah Ha-Nasi, are the result of a merging of — and a compromise between — the ancient method of study and that which developed from Hillel {andShammai until che times of the Mishnah’s redactor and which hada major influence on the development of the Halakhah. That method of study was the interpretation of Scripture and we will now discuss its development and its place in the infrasucture of the Halalhah 1 the Bible the verb, darah, ints various forms does not mean philological Trinvesigation wi doc in present nage? bat eather the abrervance of ‘commandments and the endeavour to perform them. This is also che case in Ben Sira (32:18): "He who secks [doreck] God will accept chastisement and he who seeks Himearly will achieve an answer... He who seeks Torah, will find it but he who is proud will stumble,” where seeking Torah isa parallel to secking God. The use of darach in its exegetical sense begins from the time of Shemaiah and Avualion who are called "Ha-Dashanim he-Cedolim,” the great ‘expositors, The fact that midrashic interpretation already exists in Chronicles and the Septuagint is irrelevant since the question is not whether incerpretation — and even in the style of exegesis — existed in che Bible but rather whether there was a specific term for such interpretation. Actually, the call of Ben Sira (51:28), “Lodge in my bet midash,” which his grandson translated asty oixa xatéci ie, an institute for education-study, proves that inhis time the term was not used to connotate exegesis but ather any study ot learning including Ben Sira's own method of study which certainly did not include midrashic methods. For reasons which will become clear in our subsequent discussion, 1 connect the term, Doresh ha-Torah (i.e. e who seeks Torah) in the Damascus Scroll —"The law-giver ishe who secks Torah” (8:9) and “And the saris he who seeks Torah who comes from Damascus" (9:13)—with the explication of the term, Soferim, Scribes, There i no evidence for the existence of a "period ‘of the soferi’”in hstory.? Talmudic tradition nowhere indicates the existence ‘of such a historicalperiod. However, sofrim did exist and the face that they did not constitute a historical period in no way explains their status, place and function during the different periods ofthe Second Temple and the tama im, "Tec isin! fintion of he, Safe was to write and copy the Holy Scriptures this —and thisalone — isthe meaning ofthe statement "The first ones [rishonin] were called Scribes (sofrim) because they counted the letersof the Torah.” The term, “first ones,” doesnot refer to the early sages but to the early scribes.* Another function of the Scribes was teaching 95 96, Scriptures, which usage of the term is attested by several mishnayot.? In my ‘opinion, the usage already occurs in Ben Sira, Chapter 38, the celebrated chapter about “the sage” (hatham), the aristocratic leader, which has been ‘wrongly interpreted as being evidence that the sofer and the hakham ae identical. The chapter begins with: "The wisdom of the scribe [sofer] will increase wisdom and he who has no occupation will become wise” and the commentators have already pointed to 2 parallel aphorism in Talmudic literature: “The jealousy of scribes [soem] increases wisdom” (TB Bava Batti21a) which means that competition between teachers increases wisdom amorg the students. "The wisdom of the scribes" means the skill ofthe scribes bbut the sage and the scribe are not identical and their functions were quite different. The skill ofthe teacher will indeed increase wisdom but a person, who becomes wise, ie. a sage, will “lack occupation.” According to Ben Sira,this sage is called upon to advise the community, he iselevated, he sitsin the judge's chair, he serves among princes, he appears before the great and he passes through the land after he has considered the Torah of the Most High, sought che wisdom of all che ancients and contemplated the prophesies. The ‘habhom in Ben Sita is a member of the upper class, the elders and rulers. The sofer's not. As far as function is concerned, the soferim can be compared to the Greek grammarians, the Homerian commentators, who flourished in the shird-century B.C.E. in Alexandria.” ‘The devashah was born in the circle ofthese Scribes, che explicators of the ‘Torah. The early drashor were only explanations of difficult words and terms which was done by comparison with parallel verses in Scriprure. Ac fits, the styleemployed in chese explanations was ofthe “nothing but” (en... ela)¢ype suchas, "'Ma‘a’(Levieicus 5:5) — Me’ is nothing but faithlessness for i is written. and itis also written..." or in the style of “This verse is written [rasham] here and explained in Job" from which the term does resumot ("those who interpret that which is written”) derives. The comparison of parallel texts, however, hadinceresting results — ideas which were explicit in fone text were transferred to another, words and phrases were realized to be superfluous and contradictory verses were discovered. The deashot answered {questions provided solutions for problems not explicitly created in the Torah, and clarified details in the practical performance of the commandments. However, “things which are essentially of the Torah and interpreted by the scribes” only achieved recognition as halabhor in so far 1 they confirmed and ‘endorsed traditions, tkkonot, testimonies and precedents dseady accepted by the Sages. ‘The distinction which existed between hakhomim and soferim is similar to hae which existed in ancient Rome between the jurists, who decided and fixed the law, and the commentators who interpreted ancient codes. Perhaps the most conspicuous indication ofthe social difference between the Sages and the scribes isthe fact that the former, as members of the Sanhedrin and the other courts, did not receive — and indeed were prohibited from receiving — fee for theit work, while "those who proof-read the scrolls inthe [Temple] Court, eeceive their wages from the Shekel-chamber." These proof-readers in Jerusalem were, as we have seen, priestly scribes [believe that an echo of ehie substantive difference between the «wo ‘occupations canbe found ina statement by R. Joshua b. Levis “The Men ofthe Great Assembly fasted ewenty-four fasts s0 that the scribes of scrolls, ein [phylacteries] and mesuzot should not become rich, because if they were to Become rich they would not write” (TB Pesabim 50b). Such apprehension did not exist with regard tothe Men ofthe Great Assembly themselves; they were ‘wealthy men who viewed their work asa privilege and public service Tnthe lever of Antiochus It in 190 B.C.E. (Josephus, Antiquities XIE, 142) the priests and the scribes of the Temple (of ypaywateis t00 tepod) are mentioned slong with the Gerousia,9 The "assembly of scribes" (ouvayer ‘ypauactwv) which appeared before Bacchides and Alcimus in { Maccabees, twas not the old leadership, since Aleimus and his entourage consticuted that, hor was it the new leadership which was loyal to Judah Maccabee. Eleazar ‘who is described (II Maceabees 6:18) as one of “the early scribes,” represents the type of educator-teacher who could have belonged to that “assembly of, fcribes,” Josephus was aware of the lepoypaunatels (wars VI, 291. The Combination, "Pharisees and scribes,” which occurs frequently in the ‘Gospels, would appest to indicate that the ewo are not identical. However, because of the varios transformations those texts have undergone, it is difficue eo determine the implications the term may have had in the original ‘Al the evidenceat hand proves that there did exist a class of scribes who copied the sacred Scriptures, who preserved the traditions concerning them “nd who taught and explained the Torah. Asindicated above, it seems that the fest scribes were comected with the Temple and were themselves priests: it may be only coinciental that Jonathan b. Uzziel translates: “priest and prophet" as “priest and scribe.”"? The priestly seribes enjoyed a lower stanus {han the priests who participated inthe process of government and who were ‘members ofthe Sanhedrin or the priestly cour; the latter are known in the Sources as “the sons cf the high priests.” Indeed, the traditions of the earliest ‘Cxpositions extant are in fact connected with the priesthood: “Jehoiada the 7 98 HighPriest gave the following exposition: ‘eis guiltoffering, he iscertainly guilty before the Lord’ (Leviticus 15:9) — this is the general rule: all that ‘comes [from the residue of money assigned to an offering incurred) by an act of sin of guilt, Whole-offerings must be brought therewith — the flesh for God and the hide for the priests. Thus both verses are fulfilled: ‘[He shall bring] his guile offering to the Lord” (ibid, 5:15) and ‘Fora guilt offering to che priew’ (ibid, 5:18) It also says: “The money for the guile offerings and the ‘money forthe sin offerings was brought into the house ofthe Lord; it was the priews’ (It Kings 12:16)" (Shekalim 6:6). Another indication of pricsly ‘exegesis of exposition can be found in the mishnah (bid, 7:4) which records Ben Bukhri's testimony in Yavneh that “if a priest paid the Shekel he ‘committed no sin," to which Rabban Johanan b. Zakkai retorted: "Not so! ‘but, rather, if priest did nor pay che Shekel he committed sin, bu the priests used to expound this Scripture to thei own advantage, ‘And every meal ‘offering of the priest shall be wholly burnt; it shall not be eaten’ (Leviticus 6:23)— since the Omer and the Two Loaves and the Shewbread are ours, how ‘can they be eaten?” Rabban Jobanan b. Zakkat was denying that Ben Bukbri's testimony was an accepted halakhah and argued that it was merely an exegesis of the priests, ie, ofthe priestly court. ‘As the study of Torah spread through more and more social classes, che number of seribes and expositors in all circles increased and even the sages, judges of the Sanhedrin and the various courts, adopted that seribal skill However, recognition of exegesis asa source of law wasa slow process which became stronger as the nation’s autonomy became weaker and as the Sanhedrin was deprived of its authority. Tic apelin, “creat Expose (shonin gb) was exclsvely ‘conferred on Shemaish and Aviation, the fist of whom advocated hhateed of mastery and shunning of intimacy with the ruling powers and the latter of whom warned the sages to give heed to your words lest you incur the penalty of exile" (Avot 1:10-11), Thasit is clear that chese two Sages were not part of the official institutions." However, even they were not prepared to ule that the ceremony of laying on of hands of che Festival-sacrifice takes precedence over the Sabbath asa result of which “Judah b. Durcai and his son seceded and went and lived in the South,” disappointed atthe behaviour of these two great Sages (TB Pesabim 70b). The secession of the rwo Sages who wwerein favour of exegesis asa source of aw isnoteworthy. In Megat Ta’anit we ate told: “On the seventeenth... [of] the gentiles rose up against che remnant of the scribes in Chaleis in Bet Zevid but they were saved" and the Hebrew Scholion we are informed: "When Alexander Jannacus sent to Kill the Sages, they fle frons him and went to Syria and settled in Chaleis. The non-Jews there attacked them and besciged them [i.e., the Sages] in order to Kill hem and eaused them great trouble and killed very many leaving only a small remnant, which escaped to Bet Zevid where they stayed till nighttall ‘when they fled.” This incident may be connecced with the prayer for "the ‘remnant of oue scribe" in the "For the righteous” benediction in the Amida and the theory that the whole benediction is connected with events which ‘occurred during the Hastonean revole isundoubtedky correct." It is probable that the incident recorded in Megilar Ta’ant took place in the times of Jonathan, whose expedition to Damascus and confrontation with Arabs called "Zavedives" is deserited in | Maccabees 12:30-31, ft appess that at that time the remnant of the scribes, who accompanied Jonathan and stayed in Chaleis {in Lebanon) were saved, This interpretation of the event doesnot necessarily contradict the story inthe Scholion of Megilla Tan since, as we have already Seen, wo —aor even thece — different historical stata are presented in it(see above, p. 57). [tis entiely possible that in the reign of Alexander Jannaeus, those whom he persecated fled tothe Bet Zevid area, neat Damascus. Louis Ginzberg has hinted at an identification of the incident as described in the Scholion with tha givenin the Damascus Covenant Seroll ofthe escape ofthe sects’ members ed by the “law-giver who is the expositor ofthe Torah" and Of the swearing of thecovenane” not to.come to the Temple toillumsinate My alear tor no purpose.anles they obey the Torah.” Although there isno proof for such an ientifiation, it does seem reasonable to assume that these refugees were 4 faction of the scribes, the teachers and explainers of the ‘Torah. Their relianceon exegeses asa source of law made iteasier for them to secede from the institations in Jerusalem. In Damascus, am extreme faction developed which demanded absolute secession from all. Jerusalem’s stitutions, including the Temple and the Sanhedrin, and which aimed at basing their whole way of life om the ability of the expositor eo explain the Torah until such time when “the Teacher of Righteousness will arrive at che end of days.” Their expositions led to halabhor because of which the sect parted ‘ways with the Sages. By way of an analogy, a law was derived forbidding marriage with amtece, the daughter ofa sister: "Moses said: ‘Do not uncover the nakedness of your mother's sister; for she is your mother’s flesh’ (Leviticus 18:13) — the laves of incest are written [asf they ate directed] at males but women ate also obliged by them and if a brother's daughter uncovers the ” 100 nakedness of her father’s brother, tha is her flesh” (The Damascus Covenant 5:10). The sect derived their prohibition of bigamy from the verses, "Male and. female He created them” (Genesis 1:28) and "Two of each, male and female, ccameinto the ark" ibid, 7:9). These ewo exegeses challenged laws which had. been unanimously accepted until then. Megillt ha-Serakhim (6:6-8) also ‘emphasizes the centrality of exposition: “And ina place where there are ten, lechere never be lacking 2 man who expounds (dosh) Torahday and night and where) the many will study diligently together a third ofall the nights of the year expounding law and reciting blessings together." Ar any rate, the sect'ssecession from the centre of Jewish life led to its Halakhah being based exclusively on exposition. Icis also possible to follow the process of exegesis’ infiltration into the Sages’ system until it became a source of aw equal in status to all the others, The various stagesof the process are clearly reflected in reservations recorded by various sarna'im against expositions and “the words of seribes.” The reacton of the Benei Bathyra to the expositions of Hillel who had arrived from Babylonia are well known: “alchough he sat and expounded for them the whole day they would not accept [the law] from him until he said, ‘may it ‘comeupon me! So, have heard from Shemaiah and Avtalion!"""S Clearly, this reaction was not an expression of opposition to the very idea of exposition, since, as has already long been realized, Hillel did not invent the seven hhermeneutic principles he used to prove his point tothe Benei Bathyra.® As ‘we have pointed out, he used those principles to prove that the slaughter ofthe Paschal Lamb takes precedence over the Sabbath, but the use of those principles preceded their being given specific names to designate them and they were certainly known to the scribes, With regard tothe actual system of analogy — both logical and terminological — there is no question of borrowing from the Greeks. Thisisnor the case, as S. Leiberman has proved,” ‘with regard co the names given to the various methods, Terms such as kal vackomer and gezerakshavah Seem to be translations of Greek terms as used by the thetors at the end of the first century. Ac any rate, in Hillel’s times, expositions or exegeses alone were not sufficient; in order co be acceptable, the result of the exposition had t0 be supperted by a tradition from 2 previous sage to give it authority. On the ctherhand, however, expositions which allowed flexibility in handing down decisions and in solving real problems, gave authority to their expositors. “When Alexandrians used to betroth women and another would come and snatch the bride away, such a case came before the Sages and they wanted to declare as mamzerin [bastards] their children [i.e ofthe bride and the second man}, Hillel the Eder said co them: Take out your mother’s marriage documents, They showed them to him and in them [the following clause] was written: "When youcome into my house you will bemy wife according o che law of Moses and lsriel."* Hillel therefore ruled thac since the bride had been snatched before she had come into the groom's house, the betrothal was retroactively annulled and she could not be considered a married woman at the time ofthe snatching and thus her subsequent children were not mamtzerim. Hillel’s interpretation of the text of the Alexandrian marriage documents, which were not drawn up in the formula advocated by the Sages but according to local usage, is described as “interpreting ordinary language” (darash leshon hedyr and certainly enhanced his reputation and authority particularly since 0 other sage challenged his ruling. However, such challenges were not unknown among the early tanna’im. Rabban Jobanan b Zakkai's objection t the exposition of the priests regarding the Shekel has already been mentiened: a similar reservation is implied by R. Joshua (Sorah 5:2): “That same day R. Akiva expounded, ‘And every earthen vessel into which any of them fall, whacever is init conveys impurity” (Leviticus 11:33) — it does not say “i impure’ but ‘conveys impurity,” so that it makes other things impure, This teaches that a loaf suffering second-grade impurity renders another impure in the third degree. R. Joshua said: Who will cake away the dust from your eyes, © Rabban Johanaa b. Zakkai! For you used to say that another generation would declare the third loaf pare, fr there isno verse inthe Torah <0 prove it impure; and now does not your pupil Akiva bring a verse from the Torah to prove that itis impure for itis wrieten, "Whatever isin it conveysimpurity."" Rabban Johanan b, Zakkai was of the ‘opinion that che chird loaf is impure but feared that a generation of Sages ‘would atise which relied completely on exposition and which would reverse his decision; thats te implication of R, Joshua. The same R. Joshua rejecteda skal va-homer which he was unable to refute because of a tradition he had: "R Akiva said: | argued before R. Bliezer: If because of the contact with or ‘carrying of abarleysorn’s bulk of bone (which does not render aman impure by overshadowing) Nazirite muse cut off is hair, how much mote so should he cut off his hair because of the contact with or carrying of a quarter-log of blood (which renders aman impure by overshadowing)! He said tome, What isthis, Akiva? We cannot argue here from the lesso the greater. But when | ‘ame and declared these words before R. Joshua, he said to me: You have spoken well bue thus have they enjoined as halabhah’’ (Nazir 7:4)” R. Joshua reacted toa series laws with “The Scribes have invented new thing and | cannot refute," a unique formulation, which, in our opinions, means that 102 although the law in question isan inventionof the scribes, ie.,one based on an ‘exporition and not on a tradition, which is a novelty, R. Joshua accepted it because he was unable co refute the exposition. [t is also clear that it was R, Joshua who gave the laws theie abstract formulation and reacted to al ‘of them as he did." An indication that this is the correct interpretation of R. Joshea can be found inthe Jerusalem Talmud: "The Foundation Gate’ [wass0 “alled) because there they used to found the Halathah.. New Gate [was so called) because there the scribes invented (hidiku) the Halakhah.” Alchough this text isonly an exposition on names, it does signify a conscious distinction between “founding che Halakhah” and “the scribes’ renewal of the Halabhah."® ‘The connection berween exposition and scribes is also conspicuous in Rabban Gamalie’s statement (TB Sotah 15a) when he offered an exposition and aurned tothe Sages, with, “Scribes, allow me and I will expound iin the way of analogy [ke-min homer)" and in the Sife (Numbers 8, p. 14) where he says,""Allow me, Scribes, and I will say it kemin homer,” for the Scribes were ‘expounders by analogy [dersheihomuro] > In early texts, the rerm “the words (of the scribes” sill has che connotation of an exposition which is clearly indicated in the following mishnah Orlah 3:9) "New produceis forbidden by ‘Torah law everywhere: the law of Orlah is halk and the law of Diverse Kinds isthe words ofthe Scribes.” With regard to New produce, the source is the verse, “Uncil that very day, until you have brought the offering of your God, you shall eat no bread or parched grain or fresh eats; it is a law for all timethroughout the ages in all your setlements" (Leviticus 23:14). The teem, Jhlobhah, 25 used in the mishaah is defined by Samuel as “the law of the country” (hilhot meinah), i.¢., custom and by R. Johanan as "law given to Moses a Sinai (halathohle-moshe mi-sina) i.e. tradition (TB Kiddushin 38b), “The words ofthe Scribes" cited inthe mishush isan exposition transmitted by R, Jobanan: "You shall nor let your cattle mace with a different kind; you shallnot sow your field with wo kinds of seed; you shall ot puton cloth from a micture of two kinds of material’ (Leviticus 19:19) — Scripture compares ‘mixing of seed to mixed-mating of cattle; just as (the laws of] cloth of different threads and of mixed mating of cattle are not dependent on the Land [of rae since they apply both within the Land and outside it, so too, [the law fof] mixing seeds although it is dependent on the Land applies both inside the Land and oueside it." However, the distinction between halakha and “the words of the Scribes” becomes progressively more blurted as the number of expositions increases and after the destruction of the Temple, the Sages begin 0 be "like