1 I. .\{t' ~ } t words [lit, "from his [own] heart"] did Rabbi compile them," or, "nothing was

Transcription

1 52 Ancien srae and Cassica Judaism 8. Kuge, "Qohee and Money," PP A dieren view o his passage (and o he phenomenon i represens): R. Cordis, '", "Quoaion in Wisdom Lieraure," in Crenshaw, Sudies, pp Noe in he same connecion a wisdom ex rom Qumran ha assers ha Cod has graned wisdom "o srae, He gives her as a gracious gi," (4Q8S) Sapenieiia Work 2:0. zr. Paricuary suggesive in connecion wih his opic is B. Ozen, "Od Tesamen Wisdom Lieraure and Duaisic Thinking," vrs 28 (974): "Duaisichinking" in his deiniion incudes he poarizaion o humaniy no ony ino good and evi or wise and ooish, bu as we such duaisms as he "sons o igh/sons o darkness" and "wo spiris" ound a Qumran. See aso such exs as Ben Sirah 5:4-20; Tesamen o Asher : 3-5; Phio o Aexandria, The Worse Aacks he Beer, pp ; as we as R.A Baer, Phio's Use o he Caegories Mae and Femae (Leiden; 970).,i.{' ~ } i i Order, Sequence, and Seecion The Mishnah's Anhoogica Choices 4 YAAKOV ELMAN n he enh cenury, neary 800 years aer he Mishnah's "pubicaion," R. Sherira Gaon described how Rabbi Judah he Prince, he Mishnah's edior, "com pied... and added o i wha was in his ime, and reconcied is diicuies] propery." n reconsrucing he Mishnah's ormaion, R. Sherira repeaedy emphasized Rabbi's aihuness o his sources-primariy he earier compiaion o R. Meir-and he aihuness o he aer o his sources. "And no in his own words [i, "rom his [own] hear"] did Rabbi compie hem," or, "nohing was omied or added bu or a ew paces" - his heme recurs in his descripion o ;i he process, aong wih a deaied series o proos or his conenion.' The moive, or his emphasis is cear: he ani-karaie poemic which underies R. Sherira's. hisory o he Ora Torah.,i Whaever may be is hisorica vaue oday, Sherira's monograph was he irs o seek o undersand Rabbi Judah's moives and mehods.' This invesigaion has r been renewed each ime he auhoriy or auheniciy o he Ora Torah has been caed ino quesion and, wih he emergence o he modern criica sudy o Rabbinic ieraure, has gained paricuar orce since he midde o he nineeenh cenury down o our own ime.' R. Sherira empoys our verbs o describe he process o compiing he Mishnah: iqqe, ereiz, osi, and hibber - "coec," "sove [is diicuies]," "add," and "ormuae," respecivey.' R. Sherira emphasizes ha, beore Rabbi's ime, he exisence o dierences o opinion made i impossibe "o recie i wih one voice and in one ormuaion." The impicaion woud seem o be ha Rabbi's inenion was o produce a code o Rabbinic haakhah as i exised in his ime. A ew ines urher on he adds ha "he words o he Mishnah were ike [hose ha] Moses enunciaed rom he mouh o he Mos High." Rabbi's code was based on earier sources, in paricuar he views o R. Akiva and his discipes, as ormuaed by R Meir. n responding o he impici quesion o why minoriy opinions were cied : as we, R. Sherira quoes he view o R. Judah b. ai, ha his was done "in order ~. O~

2 , 54 Ancien srae and Cassica Judaism Order, Sequence, and Seecion 55 } o invaidae hem" shoud a person wish o decide a dispue in avor o he auhoriaiveness, ahough i coud be used as an argumen or he Mishnah's minoriy view.? auhoriy despie is somewha disordered sae. On he oher hand, his argumen <.~ ~' The Mishnah is hus boh auhenic and auhoriaive, a concusion ha he is somehing o a doube-edged sword; i coud as easiy be empoyed agains such a view. poemic needs o his ime - ha is, he Karaie chaenge - required. Less han a cenury beore Sherira, anoher o he gaonim, R. Saadiah, daed he beginning Finay, here is Jacob Neusner's view o he Mishnah as a phiosophica work. o he redacion o he Mishnah o he eary years o he Second Tempe period. ~ The criica erm here, o course, is he word "phiosophica," which Neusner uses His moives were he same: in order o asser he aniquiy, auheniciy, and in his own, somewha idiosyncraic way. We sha examine his view in greaer auhoriy o he Ora Torah agains Karaie caims o he conrary." R. Sherira, deai, bu in igh o he humbnai hisoriographica skech, he apoogeic hrus however, was he irs o devoe a monograph o he subjec and, in doing so, o o his view shoud be suicieny cear. se he agenda or he discussion o such maers or he nex miennium." None o he views jus se orh can dispense wih a consideraion o he The debae surrounding Rabbi's moives and he purpose or which he Mishnah was composed has coninued ino our own ime. As Eiezer Sega wries auhoriaive ega work mus dea wih a eas hree probems: () is ack o r Mishnah's srucure and conens. A views o he Mishnah as a code or as an 4 esewhere in his voume, "a ong-sanding dispue has ocused on wheher he )i., cohesiveness and paricuary is inner conradicions and unresoved dispues; (2) Mishnah was inended o serve as a normaive codex or corpus iuris, or as a diges is ack o comprehensiveness, namey, he areas o annaiic haakhah ha i does or encycopedia o sources or heoreica insrucion."0 n ac, many more heories o he Mishnah's genre have been proposed in he as cenury and a ha, and is nonconexua arrangemen o maeria. Thus, some secions are amousy j no cover; and (3) is shorcomings in organizaion, paricuary is dupicaions and many o hem reec he reigious poemic o he nineeenh cenury. And heerogenous, ike Megiah :4-, Pesahim 4> and a o Eduyo. Usuay hese neary a o heseheories reae o David Sem's second area o concern in regard probemaic secions are expained as having resued rom ora ransmission and o anhoogizing: he quesion o is genre, and he disincions he draws beween are used as evidence or he view ha Rabbi did no or hardy aered his sources. an "archive," a "coecion," and an "anhoogy proper.?" n regard o he Mishnah's genre, we can begin by saying ha no one argues ha he Mishnah was composed de novo.' The Mishnah is ceary an anhoogy o some sor, a coecion o previousy exising sources. The quesion is he purpose o his coecion. The hird view - ha o he Mishnah as a "exbook o haakha" - is o more recen invenion and was proposed by Abraham Godberg. The precise meaning o he erm "exbook" is somewha ambiguous. A ega exbook is auhoriaive,,{ bu ony in he pedagogica sense, no in he ega sense: i is no mean o be a code, or even an immediae source or working aw-yers, The ourh view-ha he Mishnah was "Rabbi's ecure noes"-was a pop... uar noion in he nineeenh cenury, when Maimonidean ideas o order and arrangemen were aken as a bu normaive even by "enighened" schoars, and i has more receny been revived by Abraham Weiss. This view aemps o expain he Mishnah's anhoogica eaures; i does no direcy address he quesion o j:, ~: i J ' ~ i in, Among he many deiniions ha have been proposed or is genre we may singe ou ive: () a code, (2) a coecion o haakhic sources or sudy, (3) an inroducory exbook o haakhah, (4) Rabbi's ecure noes, and (5) a phiosophica work. Le us briey consider each one separaey and hen reurn o he probems raised by each deiniion. The irs wo views o he Mishnah - ha i is a code or a source coecion have a ong hisory. Boh views assume ha he Mishnah was inended rom he beginning o be auhoriaive. As we have aready seen, R. Sherira considered he Mishnah o be an auhoriaive coecion o haakhic sources, ha is, a code. So oo did Maimonides, he Codiier par exceence. n he inroducion o his Commenary on he Mishnah and esewhere, he accouns or a number o is eaures in erms o ha assumpion. This view, however, is he opposie o Maimonides', a eas according o he accoun o sadore Twersky. According o Twersky, Maimonides gowingy praises he Mishnah's "comprehensive scope, muscuar mehod, apodicic orm, brie ye meiuous sye," and Rabbi's "neary perec wisdom, unexcepionabe piey, persona auseriy..., unrivaed masery o Hebrew."' Nohing o is arrangemen was e o chance-eas o a, is conens and he order o is racaes. Wheher or no Maimonides was correc in his view, his discussion esseniay se he erms o he modern debae over he Mishnah's orm and srucure, and permuaions o his views make heir appearance in viruay every heory ha has been proposed o dae. Two aspecs o he Mishnah's orm - is arrangemens and is omissions-were o paricuar ineres o Maimonides, boh or wha hey od him abou he Mishnah's pace in he hisory o he Ora Torah and or his own codiicaory eors. Because o he sysemaic cas o his hough, Maimonides preerred phiosophica/heoogica expanaions o ierary or hisorica ones. This preerence is no more apparen han in his discussion o he Mishnah's arrangemen which, as we sha see, is cosey ied o he quesion o is genre. Consider, or exampe, Mairnonides' expanaion or he order o he dieren racaes in Seder Moed, he Order o Appoined Times. The Order begins wih Shabba, he racae deaing wih he Sabbah, because o he aer's "precedence sanciy; he ac ha i recurs every seven days and so occurs requeny in he course o ime; and ha Scripure begins wih i in is is o esivas (in Lev. 23: 3)." Maimonides hus expains he pacemen o he racae in separae heoogica, socioogica/persona, and scripura erms. Eruvin comes nex in he Order because o is obvious hemaic reaionship o Shabba. Pesahim oows "because i was he irs mizvah he sraeies were commanded by Moses, and aso because i is adjacen o he Sabbah in he [scripura] secion on esivas." To expain he pacemen o he nex racae, Sheqaim, Maimonides again urns o scripura

3 56 Ancien srae and Cassica Judaism order as he reason, bu in his case he shis he ocus o anoher par o Scripure, Exodus 30:-6, which oows he exposiion o he Passover aws in Exodus 2. To do so, however, he skips over he menion o a he pigrimage esivas in Exodus 23, aside rom shiing back rom Leviicus 23. Thus, because a heoogica phiosophica expanaion wi no serve in a cases, Maimonides mus a back on scripura order, even when ha "order" is ise no "ordery" Yoma hen,i oows because, according o Maimonides, he scripura descripion o he service o he Day o Aonemen occurs in Leviicus 6- ahough he again ignores he passages in Leviicus 23:23-27, where he order is dieren. ndeed, were he Mish J nah o have oowed he order o Leviicus 23, a he Penaeucha esivas woud have been presened in he order in which hey occur hrough he year.. Maimonides' expanaion or he order o racaes is aso no he ony possibe ~ expanaion. The Babyonian Tamud ise uses scripura order o expain he order o mishnayo wihin a racae" bu in some cases aribues he arrangemen o racaes o he amoun o maeria o be covered (and reaed maers}." n oher cases, i expains heir order on he basis o a aw's derivaion (e.g., rom j Rabbinic exegesis)," and in one case i even raises he possibiiy ha racaes coud oow a causa, quasi-rnidrashic raionae. Thus, R. Judah expains ha he reason he scripura passages deaiing he aws o he Soah precede hose o he nazirire (Nu. +-5:2) is ha "one who sees a suspeced adueress in her degradaion wi wihhod himse rom wine [by becoming a nazirie]" -a homieic expanaion. n he Mishnah, however, he order o racaes reaing hese wo aws is reversed. n response o why his is so, he Tamud expains: J } Order, Sequence, and Seecion 57 irs hree racaes coud hardy makeup an orderbyhemseves, heywerepaced wih no change in heir own sequence ogeherwih he racaes making up he oher "sub-order, n9 The ogic o he order, hen, was neiher hemaic nor scripura bu viruay "maeria," ha is, based on he acua size o he racae. n his own Code, Maimonides oowed si anoher ogic in arranging is opics-a ogic which, as sadore Twersky showed, Maimonides chose whie uy - aware o he oher opions, incuding ha o he Mishnah, ha were avaiabe o him." As Maimonides wroe in a eer, " oow neiher he order o he Tamud nor he order o he Mishnah, bu have coeced a he aws, wherever hey have been ormuaed, reaing o every subjec.'?' Whie Maimonides used some o he Mishnah's principes in arranging opics in he Mishneh Torah ise, his avowed rejecion o he Mishnah's principes o order is noeworhy. Mairnonides seems o be saying, as Twersky wries, ha "even i my expanaory insighs [o he Mishnah's order] are correc and vaid, he [Mishnah's] scheme ise has oo many concepua apses and supericia inks."22 n reciying hese apses, Maimonides subdivided and rearranged he Mishnah's ordering and sequence; he resu is a recassiicaion o he Mishnah's six orders ino oureen books. Thus, he Mishnaic Orders o Seeds, Appoined Times, Women, and Puriies ind heir equivaens in he Maimonidean books o Seeds (wih he excepion o Berakho), Times, and Women. Damages is subdivided ino Damages, Acquisiion, Saues, and Judges, - whie Hoy Things' is divided beween he Tempe Service and Sacriices. Bu Maimonides aso creaed severa new cassiicaions. Sanciy (Qedushah) incuded rr aws regarding he sanciy o marriage and ood; Haa'ah covered aws ha in he Since he Tana augh [Tracae] Keubo [Marriage Seemens] and augh [he Mishnah were divided beween Nedarim (vows) in Seder Nashim and Shevu'o aws governing] "one who imposes a vow upon his wie," he nex eaches [Trac (oahs) in Seder Neziqin. Finay, Maimonides creaed an inroducory book which ae] Nedarim [Vows]; and since he augh [Tracae] Nedarirn,he proceeded o " had no preceden in any order or even racae in he Mishnah: Fundamenas o each [Tracae] Nazir, which is anaogous o Nedarirn [because a Nazirie underakes a vow o observe he Nazirie prohibiions], and hen [he Mishnah] he Torah. This book incuded boh heoogica principes and undamena aws: rues reaing o human behavior and he aws peraining o idoary and basconinues wih he Tracae Soah or he reason given by Rabbi." phemy. The Book o Love (Ahavah) deas wih iurgy, incuding prayers and r The reason or heir sequence, in oher words, is pary hemaic and pary he bessings, and hus repaces he mishnaic racae Berakho, bu i aso incudes he aws o circumcision, which have no orma pace in he Mishnah." resu o causa connecions. Over a cenury ago Abraham Geiger suggesed si anoher reason or he order o racaes wihin an Order o Mishnah. n Abraham Godberg's summary o Geiger's argumen: The ogic o he arrangemen is purey exerna: i is according o he size o he., J'., ' Thus, Mairnonides' code diers rom he Mishnah no because o is cerain codiicaory inen as agains he Mishnah's possiby anhoogica one, or he subjec o each work is ega exposiion; Maimonides' Code diers rom he Mishnah in omiing dispues, and in is inroducion, which ays ou a programmaic heoogicahisorica oundaion or he enire work. n essence, hough, boh are ega racaes, he arges being irs and he smaes as.... The ony excepion o his principe o arrangemen is he irs Order, according o is radiiona sequence. Ye even here cerain manuscrips preserve a more basic arrangemen, dependen on wheher i was composed as a code or as a coecion; in eiher exposiions, and he arrangemen o rues, riuas, and aws in he Mishnah is no as does he Vienna MS o he Tosea. Here he arrangemen is as oows: Beakhoi (9 chaps.), Pea (8), Demai (7), Teumo (u), Shevii (0), Kiayim (9), The quesion o wha consiues a code reaes more o he manner o pre case, pedagogica or exposiory needs ake precedence. Maasro (5), Maaser Sheni (5), Haa (4), Ora (3) and Bikkurim (3). n his arsenaion han o is arrangemen. Generay speaking, we expec a coecion o rangemen here are wo disinc rames wih a descending order, he second conain divergen opinions, whereas a code does no (or ough no o). The ac ha he Mishnah does conain many such divergen opinions is probemaic. n deed, he very ac ha he Mishnah seems o conain an aemp o expain why saring wih Terumo. Wha we reay have, hen, are wosub-orders. ndeed, he irs hree racaes are a uni by hemseves, diering rom he res o he Order which deas eiher wih haowed or wih prohibied agricuura producs. As he i rl

4 Order, Sequence, and Seecion Ancien srae and Cassica Judaism '",. ' i preserves divergen opinions (in Mishnah Eduyo i.c) seems o indicae ha he The cassic period or he adopion o source-eriica mehods in researching Mishnah's redacor himse e ha he pracice had 0 be expained.,. ~" he Mishnah was he generaion beore Word War. Hanokh Abeck and Y. N. Epsein exempiied his rend, he ormer in his eary voume Unersuchungen { ueber die Redakion der Miechna." he aer in he ecure noes ha were edied The Quesion o Codiicaion, and pubished by E. Z. Meamed as Mevo'o e-si{ru ha-tanna'imp Abeck and -r Epsein had viruay opposie undersandings o he Mishnah's redacion. Accord The quesion o he Mishnah's inended genre is cosey bound up wih he quesion o is purpose. Here he maier is somewha cearer, since he Mishnah's J.,"-" concenraion on ega maeria imis he choices o esseniay wo. Was i inended 0 be an auhoriaive coecion, ha is, a code, or "merey" a guide or " exbook?" These seemingy simpe aernaives, however, mask a ar more diicu ~. and ambiguous quesion, since boh codes and exbooks can ake dieren orms ha may even med ino one anoher, as he appropriaion o Caius's nsiues as ~, a proogue o Jusinian's Code iusraes-a case o which wi reurn. Si, a "r " code is by deiniion egay auhoriaive, whereas oher genres o ega maeria, whaever presige or auhoriy hey may possess, are no auhoriaive in he same ' sense. is hus no wonder ha much o he debae over he presumed uncion o he Mishnah has cenered around he quesion o wheher i was inended as a ':" " '... code. Severa eaures o he Mishnah seem o beie codiicaory inen. Firs is is J scope: i is maniesy incompee, as we sha see. Moreover, i conains aemae,:'.:.' views o imporan maiers and does no expiciy decide beween hem. we.};',< assume ha opinions cied anonymousy are mean o be auhoriaive, we mus r" ask why an anonymous opinion in one pace is dispued in anoher. n his respec and in ohers, he Mishnah seems o conain conradicory maeria, surey no he mark o an auhoriaive code. Numerous schoars have dea wih hese quesions, bu because modern Rabbinic schoarship began in he nineeenh cenury, here has been an unorunae J endency o ransmue hese esseniay ierary quesions ino hisorica/sourcecriica ones, chiey he quesion o he Mishnah's sources. Ye because he Mish nah is aso he earies surviving coecion o Rabbinic maeria, i was impossibe or schoars o pursue comparaive work in he usua sense. nsead, Mishnah schoars based heir work mainy on inerna evidence in he Mishnah, aside rom occasiona amudic obier dica ha assumed hisorica imporance ar ou o proporion o heir acua signiicance. Thus, Zechariah Franke, in his Darkei ha Mishnah, caimed ha Rabbi had "criicay reviewed" he Mishnah he had produced. This caim was based on Franke's undersanding o a amudic saemen ha R. Ashi, he presumed redacor o he Babyonian Tamud, had produced wo ediions o his work, a saemen ha Franke assumed was aso rue o Rabbi Judah, even hough here is no exua suppor whasoever or i25 Noneheess, Franke used his raionae o expain he exisence o conradicions in he Mishnah which, he argued, resued rom R. Judah's change o mind over ime. And in order o expain why Rabbi himse did no eiminae hese conradicions, Franke proposed ha he coud no because he Mishnah had aready begun o circuae in ora orm. From his one exampe, one can see how cerain sourcecriica assumpions, once acceped, generaed wide-ranging concusions abou he naure o he Mishnah wihou, however, much evidence o back hem up. ing o Abeck, Rabbi Judah did no aer his sources in he eas; according o, Epsein, he did. Abeck based his view on he win acs ha he Mishnah conains dupicaions, conradicions, and dierences in sye, a maniesaions o a coecion bui on earier sources. He expains ha he dupicaions are someimes idenica : as a resu o Rabbi's poicy o no changing or modiying his sources. On he oher hand, when dupicaions occur in dieren ormuaions, Abeck expained, he reason is ha hey sem rom dieren schoos, whie conradicions were o be seen as represening he views o dieren auhoriies." Simiary, Abeck used he arge bocks o exs ha deviae rom he Mishnah's order by subjec maermini-eoecions o diverse, unreaed aws a aribued o a singe eary auhoriy,29 or passages in which disparae aws share idenicaierary ormuaions such as "no ess han... nor more han...,"30 or "he ony dierence be.. - ween..."3_o prove ha hese passages were incorporaed rom earier coecions wihou change. The Mishnah'smanies incompeeness, however, was more o a probem or Abeck o expain. Why, or exampe, does he Mishnah omi views cied in he { parae Tosea passage? Abeck argued ha Rabbi's Mishnah began o circuae among his discipes beore i was compee and, as a resu, Rabbi had no been. abe o incude cerain views as ye. This expanaion is hardy suicien o expain he absence o a speciic rue ha was he subjec o a annaiic dispue. This is especiay so in cases (which are no uncommon, as in M. Shevii 3:Z and T. Shevii Z:4) where R. Meir's view is omied. Aer a, according o Abeck, R. Meir was he auhor o he puaive version o he Mishnah which is said o have j. payed a par in Rabbi's redacion." Furher, and more seriousy, Abeck's expanaion o premaure circuaion did no expain why a number o imporan maiers never receive sysemaic reamen in he Mishnah; indeed, some are missing amos enirey. Among hese are discussions o riua objecs ike phyaceries and riua ringes, and sysemaic exposiions o he aws and hisory o he esiva o Hanukkah. Ahough Abeck ried o argue ha hese omissions were aso due o he premaure circuaion o : i he Mishnah," i is diicu o imagine ha Rabbi woud have sancioned he reease o his work wihou hese maiers being reaed a some poin, eiher hen or aer. Abeck's expanaion aso does no accoun or anoher o he Mishnah's signa characerisics, namey, is endency o devoe grea aenion o subjecs ha were no pracicay reevan in Rabbi's own ime; indeed, probaby more han ha he Mishnah is devoed o aws deaing wih eiher he Tempe service or riua puriy (which was ruy reevan ony o priess acivey invoved in he Tempe service) and o he aws o agricuura ihes (ahough some o hese were si being

5 60 Ancien srae and Cassica Judaism Order, Sequence, and Seecion 6 coeced aer he desrucion o he Tempe, a eas in he and o srae). How i Receny Shamma Friedman has aemped o demonsrae ha he origins o coud Rabbi rea hese maers in exquisie deai and eave ou sysemaic exposiions o eiin, zizi, and Hanukkah? Wha, in oher words, was Rabbi's pan cerain diicu exs and o probems in he arrangemen o he Mishnah may a imes be raced o Rabbi's desire or concision.'? Consider, or exampe, Mishnah or his work, his purpose in carrying i orward? Maimonides, in his inroducion T Shabba 6: and is parae in Tosea Shabba p-2. n he Mishnah, which is o his Commenary on he Mishnah, suggesed ha he Shavuo esiva was no much shorer han he ormay parae osean passage;o he order o exposiion reaed in he Mishnah because is observance did no invove any riuas pecuiar, begins wih he requiremen o save scros o scripura exs rom a ire ha has o i," and so he exposiion o he genera aws o esivas in Tracae Beza were broken ou on he Sabbah, even hough such aciviy (i.e., aking objecs ou o suicien. This expanaion, however, does no expain why he aws o Hanukkah one's persona domain ino he pubic domain) is generay orbidden on he Sabbah. Appended o his genera rue are wo oher aws. The irs is he sipuaion never made i ino he Mishnah. n conras o Abeck, Epsein aemped o show ha Rabbi had, in ac, ha hese scros mus be saved wheher or no hey are used as exis or he pubic aered and edied his sources. Whereas Abeck, o prove his poin (ha Rabbi had reading o he Torah, and he second is ha even hough he scros may be wrien no aered his sources), poined o dupicae mishnah-secions in which no aeraions were made, Epsein, in good source-criica sye, seized on ineiciies o ' manner. This mishnah ex hen concudes wih a somewha gnomic expanaion, in anguages oher han Hebrew, hey si mus be sored away in a respecu expression which, he expained, were he resu o Rabbi's ediing. Simiary, Epsein caimed hai he anonymous opinions in he Mishnah were anonymous be o he sudy ha." or why such exs are no read: "Why are hey no read? Because o he negec cause Rabbi preerred hose opinions, no because hey were reay anonymous." As Friedman noes, he parae Tosea is more opicay arranged, beginning Abeck, in conras, insised ha hese opinions had come down o Rabbi anonymousy. To capure he avor o he debae beween he wo schoars, i is worh wih an exposiion o he rues o soring hem away in 3:2. The wo passages are 'wih various rues regarding he reading o scripura exs in 3: and coninuing ciing some o Abeck's argumens in his own words. (Epsein's side does no survive in his own words.) Abeck describes in exempary ashion he ways in which joined by he erm kiveiqodesh, "hoy wriings," which is depoyed in wo dieren ways. n Tosea Shabba 3=, as in Mishnah Shabba 6:, he erm reers o Scripure in genera, "he hoy wriings," bu he as cause o he mishnah reers o kivei qodesh (wihou menioning hem expicy) in he sense ohagiographa hose wriings ha may be no be read on he Sabbah a he ime ha he ega and riua exposiions are presened in he synagogue. The purpose o his rue is he Mishnah's srucure and sye end hemseves o a source-criica anaysis, and how his expains he Mishnah's repeiions, conradicions, changes o sye, and so on. Abeck emphasizes he imporance o his conenion ha Rabbi did no edi his sources and ends on a disincy apoogeic noe." o discourage peope rom saying home o read he sories in he Hagiographa According o curren conceps (i., "in our own generaion") we mus admi ha, raher han aend hese sudy sessions. had Rabbi no proceeded in his manner, bu woud have changed his sources accurding o his own judgmen, his producion woudhave been deicien (hayah ' Friedman coninues: be-na'asehu pegam), and i woud have been said ha he "raduced" he ; The redacor o our mishnah, ha is, Rabbi, augh he ex regarding he saving radiions, ha he did no say hings in he name o he one who said hemj [o scripura scros] (Shabba 3= -7). [hese) eary mishnayo, which were and no ony ha, bu ha he pu words in he mouhs o peope who did no recied beore Rabbi, were ormuaed in he sye o he haakho beore us in > say hem bu never hough o hem-as hose who aribue o Rabbi changes, he Tosea, i is cear ha Rabbi waned, on he one hand, o incude some omissions,and addiions... How was he permied o choose wha seemed pau ' reerence o he haakhah ha one mayno read sacred wriings [= Hagiographa] sibe in his eyes and o rejec eary views or change hem according o his own on he Sabbah. On he oher hand, he did no wan o eave i as an isoaed judgmen? On he conrary His enire goa in he redacion o he Mishnah was ~ addendum uno ise in his new compiaion wihou buiding i ino he ow o preserve heir words wih exaciude so ha hey woud no be orgoen, and o he chaper. n order no o reinquish his haakhah,and asoin order o reain o menion even he opinion o a singe individua [who diered) wih he ma he igh srucure [o he new Mishnah], he combined his haakhah wih he joriy in case "a cour sees he words o he individuai may reyon him" (Eduyo primary one, by inereaving heir casesone wihin he oher." :5) " Friedman hus aribues he ack o cariy in he rue o he impac o hese Mavo a-mishnai was pubished in 959, wo years aer he pubicaion o conicing desires on Rabbi's par. The assumpion underying his chain o rea Epsein's ecure noes on hese maers by E. Z. Meamed;" and i is diicu no soning is ha Rabbi had beore him no ony he haakho ha now appear in 0 see Abeck's harsh words as a reerence o Epsein, Abeck's erswhie coeague. Mishnah Shabba 6:, bu aso hose in Tosea Shabba p-2. Friedman's caim, is reveaing ha Abeck rejeced Epsein's concusion on uimaey apoogeic however, is somewha probemaic, since even he synopic char ohese haakho grounds raher han on schoary ones. According o Abeck, Epsein had in some - ha he provides shows hardy any overap beween he wo groups o aws, excep sense impugned he Sages by assering ha Rabbi had changed his sources and in he mos genera way. Moreover, i Rabbi's desire or concision ed o he ack had hus undermined he auhoriy o he Mishnah, he oundaion o haakhah. o cariy which Friedman righy amens, wha may we say o Rabbi's redaciona L.

6 62 Ancien srae and Cassica Judaism skis? Even i he process o ora ransmission generay eads o such condensa Order, Sequence, and Seecion his maeria in anoher version. Likewise, he wi presen no ony he maeria ha is his posiion. is probabe ha he wi presen ha maeria in he orm 63 ion," conscious ediing on he par o a careu redacor can hardy be he cause i is in [even when he disagrees wih i -Y. E.], and his own posiion he wi or such a resu. enunciae during his anaysis... n essence,he seecion o maeria and isorm Noneheess, Friedman opens up wha is poeniay a highy ruiu mehod ; o presenaion wi cerainy demonsrae he rend o his own hough and his o gauging Rabbi's inenions and purposes, or i he Tosea is he compiaion own posiion. From here [we can undersand how] he eary amoraic heory rom which Rabbi worked, he dierences beween i and he Mishnah mus be [coud] see in he Mishnah, as i were, a coecion o Rabbi's ega decisions, a resu o his panning. However, Friedman's argumen canno be uy evauaed ha coud be reied on or ega decisions, [and his] even hough in essence he Mishnah is reay ony a coecion o sources used as he subjec o anaysis in uni he has presened a ar arger number o exampes in which he wo exs are [Rabbi's] ecures [iaics added]." parae. n his case, as his own synopic abe shows, here is hardy any overap excep in genera subjec maer. More receny, Avraham Godberg has argued a simiar heory, bu o he Si, he argumen ha Rabbi consciousy edied he Tosea o produce his exac opposie eec. Godberg, who has produced deaied commenaries on a Mishnah bespeaks his desire o produce a concise ex. The quesion is wheher number o he Mishnah's racaes," proposes ha he redacor had a precise se concision is more he mark o a code or o an anhoogy. For he presen momen, o pedagogica rues according o which he presened he opinions in he Mishnah. his quesion mus remain moo. n eiher case, here is no quesion ha concision The Mishnah, according o Godberg, more han being simpy a coecion o woud have been ooked upon wih avor in he word o ae aniquiy however haakhic opinions, is a "exbook o he Haakha.?" Where Weiss sees disorder in he Mishnah was ransmied, oray or in wrien orm. This as poin brings us,.is srucure, Godberg sees order, wih a srong pedagogica inen. in um, o a quesion ha Friedman's source-criica predecessors hardy ever considered: he cuura conex wihin which he redaciona aciviies ha produced The Mishna consiss o severa ayers o ega eaching corresponding o consecuive generaions o eachers. Laer ayers oen are a presenaion o possibe in he Mishnah ook pace. The ong-ime debae over wheher he Mishnah was originay redaced rom wrien or ora sources, and wheher i was inended o be ransmied in wrien or ora orm, is oo invoved or us o ener here." n passing, i is worh noing ony ha ora ransmission somewha more adequaey accouns or he exisence o exs whose breviy makes hem diicu or us o undersand. n any case, i is a beer expanaion or he Mishnah's recurren obscuriy han he aemaive namey, ha heir edior was incompeen. i Abeck and Epsein carried on heir debae over wheher he Mishnah was, inended as a code or an anhoogy, bu now ha debae has subsided, perhaps because mos conemporary schoars have e ha neiher Abeck nor Epsein produced a decisive argumen or his posiion. Schoars oday seem o assume a priori ha he Mishnah is one 0 he oher bu wihou considering he oher i erpreaions o unspeciied eachings given in an earier ayer. The chie aim o he ina edior was o presen he gamu o possibe inerpreaions, and no o compie a deiniive, canonica code o Pharasaic aw. n paricuar, as we sha see, he edior is ineresed in presening he eachings o R. Akiva as hey become } reeced in he inerpreive eachings o his prime pupis." n essence, Godberg's heory is no so very dieren rom Weiss's view ha he Mishnah is a se o Rabbi's ecure noes, excep ha he goes much urher han Weiss does in invesigaing he means by which he pedagogica goa was reached. According o Godberg, he Mishnah's edior empoyed he oowing principes in arranging his exbook:. The anonymous opinion is usuay ha which comes coses o he possibiiy. For Abraham Godberg, he Mishnah is a exbook anhoogy; or Dov generaized eaching o R. Akiva. 2. n an exended discussion, dieren poins o view wi be inroduced Zonick and David Weiss Haivni, he Mishnah was inended as a code.. in he course o he discussion. } 3- Ease o presenaion deermines he pace where a cerain opinion wi The Mishnah as Pedagogica Tex As was noed earier, wo heories have sough o show ha he Mishnah was originay composed as a pedagogica ex o one sor or anoher. According o Avraham Weiss, he Mishnah represens he maeria ha Rabbi empoyed in his ecures, a coecion o his "ecure noes," in oher words. n his way Weiss aemps o expain, or expain away, he various probems o he Mishnah's order. n he naure o he maer, a ecurer does no presen he maeria, or he varians, which serve as he basis or he ecure. On he oher hand, i mayoccur ha in one circumsance or anoher he wi presen a paricuar source in one version,and in anoher circumsance, when discussing anoher issue,he wi cie i be inroduced. 4- A singe poin o view wi be augh where i serves mos easiy as a saring poin rom which diering poins o view may be apprehended. 5. Topica arrangemen o subjec maer oen cas or a seecion rom a variey o sources. This as principe appies even i he diering poins o view menioned in / number 4 are no represened in he Mishnah ise bu in Tosea, as he suggess in discussing his principe." Wha hen becomes o he Mishnah as a "sudy book o he Haakha"? Did he edior expec sudens o he haakhah o resor o Tosea," as a suppemenary resource? Given he vasy arger size o he Tosea,and he.e

7 6-+ AnciLin srae and Cassica Judaism maeria independen o he Mishnah ha i conains, his woud be a cumbersome enerprise. The edior shoud have incorporaed he reevan osean maeria ino he Mishnah in accordance wih he principes ha Godberg himse has aid down ndeed, he ina principe (number 5) makes precisey his poin, and hus i conics somewha wih he preceding hree principes. The essenia probem wih Godberg's view o he Mishnah is ha he views he Mishnah in wo dieren, no enirey consisen ways: irs as a "exbook," and appareny an eemenary one, o annaiic haakhah, and second as a record o he eaching o our successive generaions beginning wih he generaion o he Yavneans, who are responsibe or "he primary, bu very shores ayer o he Mishnah..., comprising ae Second Tempe eachings as ormuaed by he irs Yavneh generaion"? These separae views o he Mishnah conic, because hisorica survey and eecive pedagogy do no necessariy coaesce. Thus, a one poin Godberg saes, "he ruh is ha he Mishnah can be propery undersood and inerpreed ony when he reaionship beween each ayer remains ceary recognizabe..."50 Esewhere, however, he wries ha, or pedagogica reasons, "he edior wi obviousy seek he mos sriking opinion," in accordance wih principe number ~ and rom his Godberg assers ha "diering views wi no be hard o ahom.">' These separae concusions are no enirey consisen. Perhaps even more diicu o deermine is how "he" edior managed o jugge hese principes, synchronic, diachronic, and pedagogica, a a once. is ie wonder ha Godberg concedes ha "i is very hard o ind a singe mishna wih a our [generaionajayers'" and ha mos oen ony wo opinions or ayers are presened. How hen is he range o opinion o be ahomed, especiay when i is oen a represenaive posiion ha is given pride o pace and no, say, wo exreme posiions? ndeed, given he probem o coordinaing hese various conicing goas and edioria principes, one wonders i one overriding inenion guided he redaciona aciviy ha wen ino he Mishnah's ormaion. Do hese conicing goas represen he work o dieren compiers or redaciona circes? Did he ina edior inend he Mishnah o be no more han a compiaion o sources, as Abeck suggesed, wihou he acive edioria inervenion ha Godberg assumes ook pace? Godberg himse aemped o resove some o hese probems by advering o he hisorica conex in which he Mishnah was composed o expain is ierary naure. [The] conemporary Heenisic cimae where sysemaic and we-hough-ou programs and heories o educaion payed imporan roes. On he oher hand, some o hem may seem quie modern. Thus a good exbook o necessiy needs o be seecive in he presenaion o he maeria, in order o oer he suden a maximum o inormaion in a minimum o ex. Moreover, i woud no have a sereoyped approach o every issue, bu raher empoy a variey o paerns o presenaion, each in ha conex where i woud be mos eecive." Godberg never demonsraes how a his a is ino Heenisic heories o pedagogy. Bu i he eaures Godberg cies -ike sraiicaion and he various pedagogica principes he iss-can be said o i he Mishnah as we now have i, ' { j i J, ' r.,..l Order, Sequence, and Seecion 65 somehing ese mus have been a work ha meded hisory and pedagogy. This may have been somehing ike Neusner's scheme o haakhic evouion, since such a scheme woud aow or a deveopmen rom simpe o compex, as may be required or pedagogica purposes. Godberg, by insising ha R. Akiva's discipes were merey inerpreing his views and no recasing or aering hem, seems o rejec his approach. n a arge sense, Godberg's scheme is merey an adapaion o R. Yohanan's principe ha he major annaiic compiaions, as he and we know hem, were "a according o he opinion o R. Akiva."" Wheher he souion works as an expanaion o he Mishnah's purpose and arrangemen is anoher "quesion. Thus, or a number o reasons, Godberg's scheme is unconvincing. Bu he oher "pedagogica" heory-ha o Weiss, who argues ha he Mishnah was consiued rom Rabbi's "ecure noes" - is no ess probemaic. For one hing, Weiss, by aemping o use he ecure-noe heory o expain he Mishnah's disordered srucure, makes i more diicu or himse o expain hose no insigniican insances o order ha he himse inds in he Mishnah. Furhermore, Weiss a,imes conradics his own view o he Mishnah's disorder by expaining diicuies as he resu no o a ack o order bu o he combinaion o wo diering and we-eonceived "proo-racaes." For exampe, he argues ha he diering amoraic views o he meaning o he word mav'e-one o "he ahers o damages" and a major caegory o he Rabbinic or sysem- was he resu o he incusion o wo arge bocks o maeria now ound ogeher in Bava Qamma bu originay separae coecions o caegories o damages, one made up o wha is now BQ:4-rS and he oher BQ3:~:6. Each o hese bocks had a separae view o he meaning o he word mav'eh, and each, according o Weiss, was sysemaic and ordery in ise 55 The wo coecions are, in Weiss's opinion, parae in heir exposiion o he our "ahers o damages," excep ha he irs inerpres he opaque caegory, mav'eh, as reerring o he damages done by a human being, whie he second coecion inerpres i as shen, "ooh." so, he ambiguiy in : is bui in, so o speak, or raher we may say ha he ambiguiy gave rise o wo compee "prooracaes" ha were hen combined. one were o accep his ype o expanaion in many cases, he dierence beween Abeck's posiion and Weiss's woud be minima, whie, in conras, Godberg seems o envision Rabbi as a ar more acive redacor han does eiher Abeck or Weiss. Roman, Persian, and Syriac Paraes,As we have seen, Godberg suggess in passing ha Heenisic ideas o educaion served as he Mishnah's-ha is, Rabbi's-modeJ.56 Unorunaey. he oers ew deais abou his suggesion, and here are boh cuura and hisorica reasons o quesion wheher such inuence or connecion was possibe. n he irs pace, Heenisic educaion was ierary and cuura in he genera sense, phiosophica in some sense, bu no ega." For ega paraes one mus ook o Roman aw, and, in paricuar, o is cassica period, which is, however, sighy earier han he mishnaic. Gaius' nsiues, which was inended as an inroducory exbook o Roman aw and evenuay served as he preace o Jusinian's Code, was pub

8 -~~' J ~ 66 Ancien srae and Cassica Judaism ished abou 60 C.E., a generaion beore Rabbi edied he Mishnah. Furher, he acua impac o Caius's work is uncerain. Roman jurisconsus, cerainy hose who were Rabbi's conemporaries, resised he sysemaizaion o Roman aw" and,., " Order, Sequence, and Seecion 67 wo phenomena is anaizing. And si more imporan or our purposes is he useuness o he Roman, Syriac, and Persian aw coecions o ae aniquiy in seing ou he parameers o wha an ancien or Lae Anique ega genre woud ~~ in his own ime, Gaius was no paricuary ceebraed; whie Jusinian caed him. - consis o.63 Gaius nosa, we do no even know his paronymic. Furher, Gaius ived and We begin wih he oowing enghy excerp rom Caius's descripion o Roaugh in Rome, and ahough he may have had provincia connecions (perhaps man marriage: o Asia Minor), i is no cear how he Rabbis woud have known o his work. Neverheess, his approach o sysemaizaion o Roman aw resembes a eas 08. Now e us examine hose persons who are subordinae o us in marriage.., This aso is a righ pecuiar o Roman ciizens. some endencies maniesed in he Mishnah; he and Rabbi ived approximaey a he same ime and boh were, generay speaking, members o he same cuura :. 09. Whie i is cusomary or boh men and women o be in power, ony women '. ~., a ino maria subordinaion. word. As a resu, a comparison o he nsiues and he Mishnah is no wihou O. grounds. Even so, we mus bear in mind ha Gaius was concerned ony wih civi Formery here used o be hree mehods by which hey e ino subordi naion: by usage, by sharing o bread, and by conrived sae. and crimina aw and no a a wih reigion or riua per se. Bu his is rue o {. mos aw books ha have survived rom ae aniquiy, incuding he Syriac aw A woman used o a ino maria subordinaion by usage i she remained in ~. books produced by various Nesorian eccesiasics o he sevenh and eighh cenuries, such as hose o he pariarchs Henanisho Mar Abba, and especiay ha o. he married sae or a coninuous period o one year: or she was, as i were, usucaped by a year's possession and woud pass ino her husband's kin in he reaionship o a daugher. The Tweve Tabes hereore provided ha i any he Persian archbishops esuboh and Simon. Jesuboh's "Corpus Juris" acuay.j woman did no wish o become subordinae o her husband in his way, she provides he coses parae o he Mishnah, since i is no resriced o one subjec,shoud each year absen herse or a period o hree nighs, and in his way (e.g., inheriance or marriage aw) as are he ohers. conains secions on mar.: inerrup he usage o each year. Bu his whoe ega sae was in par repeaed by saue, in par boed ou hrough simpe disuse. riage, inheriance and conracs and obigaions, as we as an inroducory "nsiuiones."?? This is rue as we o he Sasanian aw coecion, Madayan i Hazar Dadesan ("The Book o a Thousand Decisions") o Farroxmard i Wah raman, which daes o he beginning o he sevenh cenury bu ceary conains exracs rom earier works.w ( r U2. Women a ino maria subordinaion hrough a cerain sacriice made o Jupier o he Grain, or which reason i is aso caed he sharing o he bread.... This ega sae is si ound in our own imes; or he higher priess, ha is he priess o Jupier, o Mars, and o Quirinus, as aso he Sacred Kings, are chosen ony i hey have been born in marriage made by he sharing o bread, and hey hemseves canno hod priesy oice wihou being married by he sharing o he bread. A number o schoars have receny invesigaed he connecion beween he Rabbinic corpus and various Heenisic ae anique ega composiions. Lee Levine oers an admiraby baanced summary o he curren consensus: U3. Women a ino maria subordinaion hough conrived sae, on he oher The iming o cerain deveopmens wihin rabbinic sociey, especiay wih regard hand, by means o mancipaion, ha is, by a sor o imaginary sae; or in he o inerna organizaion and compiaion o various corpora, boh aggadic and ~ ; presence o no ess han ive adu Roman ciizens as winesses, and aso a scaehoder, he man o whom he woman becomes subordinae 'buys' her.... haakhic, has ineresing paraes wih wha was ranspiring a he ime in Roman and aer Byzanine sociey. s i coincidena, or insance, ha he earies Phar asaic schoos o Hie and Shammai crysaized a he ime o Augusus, when ~ 5a. Formery a conrived sae used aso o ake pace or he purpose o making j. ega raining was becoming ormaized in Rome in he eary Roman awschoos a wi; or a one ime women, wih cerain excepions, had no righ o make a ounded by Labeo and Capio? Or ha R. 'Akiva and his coeagues began coecing and organizing rabbinic radiions under Hadrian, when juianus, Cesus mied. Bu on he proposa o he Emperor Hadrian, he Senae remied his wi uness hey had made a conrived sae and been remancipaed and manu Pomponius, and ohers were acivey invoved in making simiar compiaions in requiremen o making a conrived sae... Rome? Or ha Rabbi Judah he Prince compied and edied his Mishnah, and 6. remains or us o describe wha persons are in bondage. annaiic midrashirn were coeced under he Severans, a a ime when Gaius, 7. A chidren, wheher mae or emae, who are in he power o heir aher Papinianus, Pauus, and Upianus were ikewise compiing codices and responsa can be mancipaed by him in he same way as saves can. o Roman aw and commening on earier maeria? The argumen ha hese recurring parae aciviies in Roman and Jewish socieies migh be reaed is more compeing when we reaize ha boh Roman jurissand he rabbis cenered heir aciviies in schoos o higher earning, and ha a eas one o he mos amous Roman schoos was ocaed in Beryus, no ar rom he cener o rabbinic aciviy in he Caiee." Wheher or no we posi any direc connecion or inuence beween he Rabbinic and he cassica Roman ega enerprises.s- he synchronic juxaposiion o hese J u8. The same rue appies o persons in maria subordinaion; or women can ~ be mancipaed by he oher paries o he conrived sae in he same way as chidren by heir aher." Gaius coninues by providing us wih a deaied descripion o mancipaion, bronze scaes and a. Now whie Gaius cerainy used sources in compiing his nsiues- in his shor passage he reers o he Tweve Tabes, o egisaion o Hadrian, and o

9 68 Ancien srae and Cassica Judaism senaoria decisions- he presens a summary o hese sources raher han ciing he origina exs hemseves. n his respec his nsiues is reay a exbook raher han an anhoogy. Again, whie he reers o, and even describes, pracices ha have aen ino disuse, hese do no ake up a arge par o he work. Compare, however, he opening secions o Tracae Qiddushin in he Mishnah:. A woman is acquired [in marriagein hree ways and acquires herse in wo. She is acquired by money', by deed, or by inercourse. "By money": Beh Shammai mainain, a denar or he worh o a denar; Beh Hie say, a peruah or he worh o a peruah. And how much is a peruahi An eighh o an aian isar. And she acquires herse by divorce or by her husband's deah, A yevamah (i.e., a chidess widow subjec o evirae marriage) is acquired by inercourse, and acquires herse by [he ceremony] o haizah (as mandaed in Deu 25:7-0) or by he evir's deah. 2. A Hebrew save is acquired by money and by deed, and acquires himse by years (i.e., aer six years o service, as mandaed by Exod, 2:2), by he jubiee, and by deducion rom he purchase price. A Hebrew maidservan [is more privieged] i ha she acquires herse by signs [o pubery]. [A save] whose ear is bored (i.e., one who reusesreedom a he end o six yearso serviude;see Exod. 2:5-6) is acquired by boring, and acquires himse by he jubiee or his maser's deah. ). A heahen save is acquired by money, deed, or by hazaqah (i.e., aking possession, by ordering him o do he maser some persona service), and acquires himse by money hrough he agency o ohers, and by deed Large cae are acquired by "puing"; sma cae by iing: his is he opinion o R. Meir and R. Eiezer, bu he sages rue: sma cae are acquired by "puing." 5 Propery which oers securiy (i.e., rea esae) is acquired by money, by deed or by hazaqah, [Propery] which does no oer securiy (i.e., moveabes) may be acquired in conjuncion wih propery which providessecuriy by money, deed, or hazaqah, and i obigaes he propery which providessecuriy, o ake an oah concerning hem. There is no reerence here o ancien pracices or o he hisory o he Mishnah's aws. he exs in he Mishnah derive rom earier sources, he edior does no ideniy or even reer o hem. A more exac parae o Caius's pracice woud be hose mishnayo in which obsoee pracices or decisions o eary cours are briey described. These incude, mos amousy, he mishnayo ha begin wih he ormuaic "a irs" (o which he Mishnah conains neary wo dozen") and oher orms as we.66 We do no know i he reasons ha moivaed Gaius and Rabbi o incude such reerences o earier pracices were simiar. The eerna characer o a divine aw migh nauray ead a compier o incude such maers so as o beer deine he inerpay o divine aw and human egisaion, whereas Gaius' excursions may invove nohing more han a cerain aniquarian emperamen on he par o he auhor. Even so, a cursory comparison o he wo passages indicaes ha whereas Gaius akes pains o deine and describe he pracices he reviews (e.g., usage, sharing o bread, Order, Seque'ce, and Seecion 69 mancipaion, ec.)-presumaby or he benei o he suden using he nsiues as a exbook - he Mishnah assumes a eve o ega knowedge ha Gaius does no (even i i is aso concerned o deine areas o dispue or minimum requiremens). The number o brackeed commens appended o he ransaion gives an indicaion o how much knowedge he Mishnah assumes on he par o is reader. The Mishnah canno, and did no, sand on is own as a "exbook o he Haakha," and i ceary was no mean as an inroducion o he ied or sudens o Rabbinic aw. On he oher hand, even hough he occasionay noes ha he wo schoos are in dispue on an issue, Gaius sedom reers o dispues among he juriss. 96. Guardianship ends or boys when hey reach pubery. Sabinus, Cassius and ohers o our eachers cerainy hink ha a boy shows he has reached pubery by physica deveopmen: ha is, he is capabe o begeing. However, in he case o hose who canno reach pubery such as eunuchs, regard mus be had o he age a which pubery is normay reached. The auhoriies o he oher schoo hink ha pubery shoud be reckoned in years: ha is, hey judge anyone who has reached he age o oureen as having reached pubery/" Gaius ceary ideniies himse as a Sabinian, and in opposiion o he Procuians, whom he cas "he auhoriies o he oher schoo." n conras, he Mishnah conains an ininiey greaer number o dispues, bu nowhere does is edior expiciy ideniy his aegiance; indeed, his objecive sance is mainained even when he debaes beween he Pharisees and he Sadducees are repored, as in Yadayim 8. Roman aw preserves severa genres o ega coecions ha may be perinen, o caegorizing he Mishnah: exbooks such as he nsiues o Gaius, codes such as Jusinian's, eary coecions such as he Tweve Tabes, and responsa ieraure..~.j. Sasanian aw preserves one imporan surviva; he Madayan i Hazar Dadesan,, which, whie cerainy no a code, is noneheess a arge coecion o aws (comprising some iy chapers in is wo pars) on major areas o civi aw.s" Ye none '.«. o hese conains he weah o dispuaiona maeria ha he Mishnah does, even r i heir auhors regiser conicing opinions and someimes presen a shor hisory o he aw on a paricuar poin. Oher ancien coecions, such as he ninhcenury Zoroasrian encycopedia, he Denkard ("Acs o Reigion"), conain -ike ' he Mishnah and even more ike he Tamud-a variey o maeria, hisory and egend, riua, and a smidgen o civi aw, bu aso do no conain dispuaiona maeria. Likewise, he Videvda and he Pahav Vendidad ("Law Agains Demons")69- he par o he Avesa ha deas wih puriy aws-does no conain such maeria. As we have seen, i is unikey ha a code woud have been composed in his way, and a hese oher ancien codes and ega books are esimony o ha ac. Tha he Mishnah was evenuay viewed as auhoriaive does no mean ha i was originay inended o be a code, since, as ar as we can e, i, never was ooked upon as he as word in ega decision making. Nor, as we have j seen, does i serve paricuary we as a exbook. On he oher hand, a o his may be a maer o degree. The Mishnah conains a regisry o dispues bu no a ha much dispuaiona maeria, espe- 'L

10 70 Ancien srae and Cassica Judaism ciay compared wih he amuds or he midreshei haakhah. On he oher hand, Gaius, Jusinian, and he Madayan i Hazar Dadesan do conain varying bu no insigniican amouns o divergen opinions-he reason being, perhaps, as Macuch noes in her inroducion o he irs voume o he Madayan," ha The auhor o he awbookwas no ineresed o expain simpe reaionships, nor o provide some sor o deiniion or he ega erms he empoys. Appareny, he conceived o he work as a sor o aid o decision making or juriss, or he assumes an exac knowedge o a o hese ega insiuions." There is, however, anoher signiican dierence beween hese works and he Mishnah. A he oher works have inroducions. Jusinian, as we have seen, appropriaed Gaius, and [esuboh, in he hireen chapers o Book One, provides his aw coecion wih an inroducion reminiscen o Gaius ha provides a ramework or undersanding he means and purposes o aw, boh in a ega and reigious conex, and he pace o aw wihin an eschaoogica conex, and ha conrass human aw wih nomos, he idea aw. Possiby [esuboh provided his inroducion in order o provide his ock wih an undersanding o he pace o "rendering up o Caesar wha is Caesar's," on he one hand; he may aso have been inuenced by Jusinian's appropriaion o Gaius. Farroxmard aso provides somehing o an eschaoogica and doxoogica inroducion o Madayan, bu one ha does no ake up any ega issues whasoever. Generay, he does no discuss basic rues or simpe cases (ahough such rues or cases can be exraced rom he precedens he does provide). Neverheess, as Macuch makes cear in her inroducion, he Madayan was cerainy a coecion o ega decsions ha was compied or he guidance o juriss who were obigaed o enorce he aws. Hisorians o Roman aw have emphasized he unique and unusua naure o Caius's nsiuiones. Roman juriss were no ega heoriss in he arger sense nor paricuary ineresed in generaizaions. As has been noed, Gaius was a no paricuary successu aw proessor in his own ime. is hereore noeworhy ha Jusinian's commiee chose precisey his exbook as a proogue o is own code. may be ha he ack o aernaives orced his choice on hem; here were no many oher such overviews o he aw. ronicay, he uniqueness o Caius's work makes he absence o such a proogue in he Mishnah, aong wih he pauciy o deiniions o ega erms in i, more in ine wih genera Roman pracice and ess probemaic in is own erms. n any case, i is cear ha he incusion o divergen views and he ack o cear deiniions are irreevan o he quesion o wheher a paricuar work was inended as a code. Gaius composed a exbook, no necessariy mean or ega decision making in he proximae sense, which was aer appropriaed ino a code. Farroxmard compied a coecion (no unike he Mishnah's), which was inended o be auhoriaive. Jusinian's Code, aso inended as auhoriaive, conained eemens o boh he auhoriaive code and he exbook. Given he absence o a rea parae o Gaius' nsiuiones in Rabbinic ieraure, or, or ha maer, in Roman or Sasanian aw, we may concude ha here is no reason no o beieve ha Rabbi wished o provide a coecion ha coud be used or boh sudy and decision making. 'J ".~,. "r r ' The Mishnah as Phiosophy Order, Sequence, and Seecion 7 The ih and ina view o he Mishnah ha has been proposed by modern schoars is as a phiosophica reaise. The oremos proponen o his view has been Jacob Neusner, who has aso pursued wha is cerainy he mos exensive conemporary aemp o view he Mishnah in is own righ and o deine is characerisic rais in heir own conex. Tha is, he avoids viewing he Mishnah hrough he ens o oher ancien Rabbinic (and non-rabbinic) documens. By comparing he Mishnah's and he Tosea's respecive reamens o Seder Tohoro (Puriies), Neusner has carried ou an exhausive sudy o he orms and ormuary paerns o ha Seder and is redacion. He summarizes his indings as oows: Tosea o Mishnah Seder Tohoro boh correaes wih, and presens a sriking conras o, Mishnah... Tosea's cogniive unis (= Mishnah-secions) are ormuaed ou o phase wih [he] orma paerns characerisic o Mishnah. n paricuar hey ignore Mishnah's sress on highy paerned synacica ormuaions, careuygrouped unis o hrees and ives, and discipineddecaraive senences, one oowing he nex in arge-scae bocks o orma and concepua inermediae divisions (= roughy, chapers). ndeed, i is in Tosea ha he redacionaormuaions become uy apparen. Here, in he documen generaed by Mishnah, we see ie o Mishnah's ineres in imposingsrucure upon inermediae unis and orma paerns upon sma ones.,.. When we eiminae Tosea'scogniive unis and inermediae divisions which cie or goss Mishnah, we are e wih inermediae divisions and cogniive unis which in he main orm a mass o muuay indisinguishabe, generay unbaanced and unpaerned decaraive senences." From his uniormiy o anguage and sye Neusner concudes ha he Mishnah was redaced by a sma group o peope over a shor period o ime; a onger duraion or a more heerogeneous group or groups o redacors coud no susain such uniormiy." "Despie is sociay diverse oundaions and caegories o ineres, he Mishnah expresses ise in one mode o hough and expression and hrough one manner o speaking.'?' Moreover, here is very ie "hisory" o he Mishnah's own composiion.., Hisory ise pays amos no roe in he Mishnah. From he ac ha is rues are ormuaed in he presen ense, Neusner concudes ha "aer a, wha he Mishnah reay wans is ~r nohing o happen.,.. porrays a word uy pereced and so uy a res.... There is room ony or a descripion o how hings are: he presen ense, he sequence o compeed saemens and saic proberns.?" And again: "The whoe corpus o prophecy and hisory is negeced by he Mishnah.... When he phiosophers [o he Mishnah] conroned he sizabe heriage o srae and made he choice o ignore mos o wha had been done since he ormaion o he Mosaic codes..., hey made a sunning commen.... Their,. judgmen was ha nohing o worh had happened rom he ime o Moses o heir own day."i6 Pary because o his ack o concern wih hisory, Neusner speaks o he

11 72 Ancien srae and Cassica Judaism Mishnah's auhors as "phiosophers" and deines he Mishnah as "phiosophy." As E. P. Sanders pus i in a renchan review o Neusner's work on he Mishnah, Neusner proposes ha he auhors were phiosophers and inended o consruc a meaphysica and ani-hisorica word view... He makes he undamena assumpion ha he conens o he Mishnah e us a ha he auhors wan o say "abou heir view o he word as hey see i or as hey wan o see i" (p. 5).... Since he assumes ha he Mishnah is meaphysica phiosophy,neusner marvesa he hings which are no here and which woud be here i i wereordinary meaphysics... Bu he hings ha are no here... are no here because hey are no subjec o ega discussion." n oher words, he Mishnah's genre canno o course be deermined by a ormcriica sudy o is anguage. As Sanders poins ou, use o he presen ense is generay characerisic o ega and semi-ega wriing, as is negec o hisorica daa. Likewise, his accouns or is reaive negec o heoogy.7s Aong he same ine, Sanders argues, "aws characerisicay do no give hisorica preambes and eschaoogica concusions. Prophecy is enirey missing." As an exampe o wha he Briish Highway Code does no conain, he suggess he oowing: "Once upon a ime Briain had no Moorways, uni he grea miniser... arose, who bui he Mi, a which ime here was ony one. And now we ook orward o he ime when a Briain wi be paved and, besides Moorways, here wi ony be sip roads."79 Neverheess, he incusion in he Mishnah o arge bodies o maeria-qodashim and Toharo-ha were a bu compeey inappicabe in Rabbi's ime poins o is uopian characer. G. Sernberger, in his revised ediion o Srack's nroducion o he Tamud and Midrash, concudes his discussion o his issue wih he oowing suggesion: Given oday's knowedge, i is no onger possibe unequivocay o deermine wheher M[ishnah] was originay conceived as a coecion, a eaching manua or a aw code. ndeed, his aernaive probaby arises ony or modern readers; wha is more, i ais o accoun suicieny or he uopianism o Mjishnah], is ideaized order o he perec harmony o heaven and earh, and he underying phiosophy. For in principe he ancien radiion is o course regarded as aw which mus be ransmied in eaching-and hus he hree conceps amos coincide.w Boh Sanders and Sernberger are esseniay correc, bu even heir characerizaions o he Mishnah are no enirey accurae. Pace Sernberger, he Mishnah is hardy unique in conaining eemens o a code, a coecion, and a eaching manual Furher, some aw codes do conain hisorica summaries, as we have seen wih Caius, Jusinian, and Madayan. As o he as o hese, we may iusrae is hisoriographica dimension wih an exampe rom is very beginning: is said: Uni he reign o Wahram peope were considered saves whose ahers were saves, (and) no hose whose moher was;6 in conras, Soshans said: "The chid beongs o he aher," and now we say: "The rnoher.t" ~ co.~.... j, i'; ~. Order, Sequence, and Seecion 73 Any number o paraes rom he Mishnah come o mind,s as do exampes rom Caius" and [usinian." shoud aso be noed ha any reerence o an earier auhoriy-a pracice common o a hese coecions-is in a sense hisorica. Sanders's assumpion ha a phiosophica work wi no conain hisorica reerences is ise somehing o a non sequiur. Such hisorica reerences are no necessariy inappropriae in a aw coecion, a riua ex, or even a phiosophica work. The same is rue o eschaoogica concusions. n Farroxmard's somewha rambing and repeiive inroducion o Madayan, preserved in one manuscrip which a his poin has suered osses in ransmission, we ind he oowing asserions. Because o he acunae in he manuscrip, and he oose synax, i is diicu o oow he argumens exacy, bu he genera dri is cear. n he name o Ohrmazd, he ord o spiriua and earhy being [... he Cood Reigion] o Mazdanaysians. This book is [caed] he Booko a Thousand Decisions, in ha i [shows] he greaness, goodness, and worh o peope, aside rom he quaiies which hey by heir [own]eor[aswe as] he gi o he gods, achieve in heir own essence. The book is ha insrumen [o] eicaciouspower ha he creaor, in [his] omniscience, in order o ordain he desrucion o he Lie, and he resoraion o one's own [domain], o ordain he organizaion o creaion, he non-opposiion [o he good], he undying biss, he ever-enduring igh, and o ordain [his] oa sovereigny in he [eschaoogica] end o ime, ha has endured o such an exen as an essenia [abiiy]. For he sake o he exisence o ha naure o mankind is ha achievemen praiseworhy, on accoun o which Cod creaed man. n he era o he [eschaoogica] end o ime was he "preservaion o he exisence" o wisdom, insigh, power o discernmen, and undersanding (perceived, aken advanageo?)... As one may come o perceive, rom he reigion o he gods,hrough searching and asking,o make one's own person ree o sin [is] he way o he reaizaion o one's own proper uncion, o [Good] Thinking, Speech and businessdeaings, keeping onese [riuay] pure hrough inegriy,, Farrohmard i Wahrarnan,... his highes we-being...b6 Wheher his inroducory saemen (which, i shoud be noed, appears as a separae secion aer chaper 32 o 50) was inended by he compier as par o his work, or wheher is pacemen is due o he vagaries o ransmission, is no cear. As i sands, however, i may argue agains Sanders's poin ha ega works do no normay conain eschaoogica or phiosophica discussions. The essenia quesion is he deiniion o "phiosophica" in his conex. Neusner himse concedes ha "he Mishnah's is a phiosophy in an odd and pecuiar idiom o be sure." He goes on o asser, however, ha, propery sudied, "i wi emerge as a work o sysemaic hough on a susaining program o issues ha, in he Mishnah's auhorship's ime and pace, oher phiosophers addressed and peope in genera [addressed) as phiosophica." When Neusner deais his somewha idiosyncraic use o he erm "phiosophica," however, i becomes much ess vunerabe (a eas in par) o he criicism ha Sanders mouns agains i. He wries ha he phiosophica issues addressed in he Mishnah incude he rues o cassiicaion and generaizaion, he issues o mixures, he resouion o doubs, he reaionship o he acua o he poenia (chicken, egg), he roe,~

12 7- Ancien srae and Cassica Judaism o aiude or inenion in he assessmen o an acion and is consequences... and he ike-hese absrac issues o genera ineigibiiy urn ou o orm he ineecua program o considerabe porions o he Mishnah as we." Neusner insiss ha hese concerns ake he Mishnah beyond he usua range o he erm "phiosophy o aw" because hey invove wo addiiona crieria: Firs, hey are principes ha can appy o a considerabe range o speciic opics. Second, hey are subjec o generaizaion ("generaizabe") even beyond he imis o he aw, or insance, in maers o meaphysics or physics(as wih mixures and connecion), in maers o ehics (as wih inenionaiy), in maers o he undamens o phiosophica inquiry (as wih he inerpay o poenia and acua, which mean so much o Arisoe)." rhus deined and circumscribed, Neusner may have a poin, hough i inenion iy is a crierion, we may say ha Farroxmard's work aso mees ha requiremen, S woud mos aw books. mpici in neary a manuas o riua-are principes ha parae he Mishnah's concern wih mixures and connecion (e.g., sympaheic magic) wihou being he eas bi "phiosophica." To his as poin, Neusrer woud probaby respond ha wha diereniaes he Mishnah rom nonphiosophica works is aso is mehodoogy, as in he maer o resoving issues o oub.s? On his poin, oo, however, jurisprudenia sysems have heir own "rues ) sauory consrucion." The rea probem wih Neusner's phiosophica approach o he Mishnah is ha, in he end, caegorizing he Mishnah as a phiosophica work does no assis S in undersanding is immediae, socia purpose, or is redaciona hisory and nen. has aways been read as a ega work o some ype. No one, uni Neusner, -ver hough o reading i as a phiosophica work-no even Maimonides Bu :an he orm-eriica dierences ha Neusner noed beween he Mishnah and he Tosea aid us in deining he Mishnah noneheess? Sanders's criique o '-Jeuser 0 precisey ha poin appears sound. The maers o sye ha Neusner idduced as characerisic o he Mishnah as a phiosophica work are ypica o 'osea as we. There may, however, be oher dierences which woud hep us n deining he naure o he Mishnah more precisey. Among hese dierences is he Tosea's incusion o prooexs o a ar greaer egree han in he Mishnah, an observaion ha even a cursory examinaion o oh coecions wi conirm. This aso accords wih he much greaer quaniy nonega maeria incorporaed ino he Tosea han wihin he Mishnah. Toea's redacor(s) ceary had a broader purpose in mind han did hose o he vishnah. This poin is aso reeced in he comparaive sizes o he wo works: "osea is abou hree imes he size o he Mishnah. s ocus is aso somewha ieren - or exampe, i conains a number o very deaied exposiions o he.arameers o various riua obigaions, reminiscen o Maimonidean sye, bu ven more o Serer Hahinnukh. n his respec, hen, Tosea resembes a code 0re han does he Mishnah Perhaps mos eing, however, is he ac ha Tosea does no sysemaicay nake good on he Mishnah's omissions. There is no racae in he Tosea on i, :~ Order, Sequence, and Seecion 75 phyaceries, on riua ringes, on he aws o Hanukkah or Shavuo, nor does Tosea conain a deaied exposiion o he Jewish caendar. To some exen, i may be ha omissions o his ype mirror he diicuies o describing in words riuas ha are more easiy ransmied mimeicay. Neverheess, one mus inquire as o why he Mishnah (and he Tosea) concenrae on some maers and no on ohers. To he exen ha a cear rue canno be ormuaed, we mus accep he possibiiy, a eas as a working hypohesis, ha, as Abeck insised, he Mishnah was no compee. n um, since i now exiss as a commenary on he Mishnah, Tosea oo mus be incompee. Boh characerisics o he Mishnah - is excurses, on he one hand, and is omissions on he oher-derac rom is useuness as a code. Bu an incompee ega anhoogy aso oses somehing o he useuness o a compee regiser o sources, perhaps even more so since we expec greaer "coverage" in an anhoogy han in a code, which shoud omi divergen sources. Even Abeck, who rejecs he view o he Mishnah as a code and insead considers i as an anhoogy o sources, neverheess ees compeed o expain is deiciencies as an anhoogy as being a consequence o is premaure circuaion. Si, we expec more o a code han rom a coecion o sources. A reigious code ha or some reason ais o cover maers o daiy riua can hardy be said o have uied is purpose. n he end, hereore, he Mishnah's manies incompeeness remains a puzze, wheher we consider is redacors' inenion as having been o produce a code or an anhoogy: Neverheess, our examinaion o parae coecions in oher ieraures o ae aniquiy has demonsraed ha he division beween a code or., an anhoogy was no as grea as nineeenh- and wenieh-cenury schoars imagined. Nor was he division beween a orma ega work-code or anhoogy-and a sudy ex. The diicuy in caegorizing he Mishnah as one or he oher is a poweru exampe o how ie hese generic caegories hep us in deining he '.r,. singuariy o a work ike he Mishnah. Noes. 9gere Rav Sherira Gaon, ed. B. M. Lewin (Haia:n.p., 92, repr. Jerusaem,Makor, r 972), p. 29.The ransaion oows boh he "Spanish" and he "French" versions, wihou i one addiion in he French version. See Margaree Schueer, AuWeche Weise wurde die. Mischna geschrieben? (Tuebingen: J. C. Mohr, 993), p. 97, nn. 2 and 3 Mos MSS have eqaeih, bu 0298 has neqaeih, "he ook i," which may have inuenced Schueer's preerence or nahm R(abbi) sie au as opposed o sammee in ransaing he ormer. On he quesion o he wo versions, see Schueer, pp , and he ieraure here cied, and on he various words R. Sherira empoys o describe he process, my discussion in he oowing paragraphs. n his essay, "Rabbi" and "Rabbi Judah he Prince" are erms used o signiy he redacor or redacors o he Mishnah, wihou necessariy ideniying he hisorica Rabbi Judah as he soe or even necessariy he primary redacor. Even R. Sherira, who ike his conemporaries and successors, saw redacion in persona erms o nearer o modern ideas o auhorship han o seecion and ediing, describes his eor as he cuminaion o a hree-generaions-ong process, beginning wih R. Akiva, coninuing wih R. Meir, and

13 76 Ancien srae and CassicaJudaism ending (more or ess) wih Rabbi. use brackes wihin ancien quoed maeria o indicae resoraions and parenheses o indicae expanaions, oher edioria inerpoaions, and )rigina anguage.. See Lewin, ggere Rav Shenra, pp. 23, 29; he second phrase occurs on p See Schueer, Au Weche, pp , and my commens in my review essay in.s Review 0 (995):8o--S5. 4- On he maer o hisoriciy, see Schueer, Au Weche, pp , and see my eview in A]S Re}'iew 20 (995): 8o--S5,and D. Goodba, Rabbinicnsrucion in Sasanian sabyonia (Leiden: E. J. Bri, 975), PP 35-43, Y. Cani, Yehudei Bave bi-tqua ha "amud (Jerusaem: Merkaz Shazar, 990), PP.23<)-45, and "Le-heqer ha-khronoogia ha "aruudi be-ggere Rav Sherira Caon," Zion 52 (5747), pp For habber as "ormuae, ix," see Shraga Abramson, "Keivaha-Mishnah {A Da'a ;eouim ve-rishonirn)," in Tarbu ve-hevrai be-toedo Yisrae bi-ymei ha-benayyim: Qoez Maamarim e-zikhro she Hayyim Hie Ben-Sason, ed. R. Boni, e a. (Jerusaem: erkaz Shazar, )89), pp. 7-52, bu compare M. Friedman, "A Teruma ha-cenizah eeqer ha-haakhah," Mada'ei ha-yahadu 38 (993): On he whoe issue, see.ober Brody, The Geonim o Babyonia and he Shaping o Medieva Jewish Cuure (New raven: Yae Universiy Press, 998), PP On he quesion o he exac reaion o nne o hese erms o he vexed quesion o wheher Rabbi acuay produced a wrien -x, see mos receny my "Oraiy and he Redacion o he Babyonian Tamud," Ora radiiion ~ (999): 52-<)9, and in paricuar, pp.65-67, and see S. Lieberman, "The ubicaion o he Mishnah," Heenism in /ewish Paesine (New York: Jewish Theoogica erninary, 950), pp ; B. Cerhardsson, Memory and Manuscrip: Ora Tradiion and 'riien Transmission in Rabbinic /udaism and Eary Chrisianiy (Copenhagen: C.WK eerup and Einar Munksgaard, 96 (repr. by W. B. Eerdrnan's, 998, wih a oreword by cob Neusner): J. Neusner, The Memorized Torah: The Mnemonic Sysem o he Mishnah :hico, Ca: Schoars Press, 985); and J. Neusner, Ora Tradiion in /udaism: The Case o e Mishnai (New York: Garand, 987), among many oher conribuions. See Marin S. ee, "Ora Tradiion in he Wriings o Rabbinic Ora Torah: On Theorizing Rabbinic raiy,"ow Tradiion 4 (999): 3-32, as we as Eizabeh Shanks Aexander, "The Fixing he Ora Mishnah and he Dispacemen o Meaning," in he same issue, and Jaee's 'W book, Torah in he Mouh: Wriing and Ora Tradiion in Paesinian /udaism, 200 o CE (Oxord: Oxord Universiy Press, 200), esp. pp Lewin, ggere: Rav Sherira, p Lewin, p. 30, based on he saemen in med :5. 8. S. Schecher, ed., Saadyana: Ceniza Fragmens o Wriings o R. Saadya Gaon and hers (Cambridge: Deighon and Be, 903), p On he reaion o R. Sherira's Epise o SederTannaim va-amoraim, wrien abou.enury earier, see Brody, The Geonim, p E iezer Sega, "Anhoogica Dimensions o he Babyonian Tamud," Prooiexi» 7 97): 33-6; he quoe appears on p. 34. This shows up in arge and sma ways; see my commens in "Nahrnanides and, Search or Omnisigniicance," Torah Umadda Journa 4 (993):6-7, esp. n See Sem's inroducion o his voume, p. 5.,. Jacob Neusner's rejecion o source-criica mehodoogies shoud no be aken as ejecion o he exisence o "sources" in Rabbinic documens; his avoidance o such hods is heurisic, since, as he oen pus i, "we do no know wha we canno show." :, or exampe, his discussion o he redacion o Mishnah and Tosea in The Tosea: Srucure and s Sources, Brown Judaic Sudies 2 (Aana: Schoars Press, 986), pp.. Order, Sequence, and Seecion sadore Twersky, nroducion o he Code o Maimonides (New Haven, Conn.: Yae Universiy Press, 980), P Thus, bber 23 accouns or he pacemen o he rues deaing wih he evening Shema beore hose o he morning Shema because o heir respecive pacemen in Deueronomy 6:7. 6. See, or exampe, bnaz zb, 7. See byev zb, 3a; B.Q. 7b; B.B. 08b; Zev 48a. 8. bso See Abraham Godberg, "The Mishnah-A Sudy Book o Haakha," in Shmue Sarai, ed. The Lieraure ohe Sages, Firs Par(Compendia Rerum udaicarum ad Novum Tesamenum), Phiadephia: Forress Press, 987, pp ; he observaion quoed is on PP See sadore Twersky, nroducion o he Codeo Maimonides (New Haven, Conn.: Yae Universiy Press, 980), chap. 4, "Cassiicaion," pp , See mos receny Haym Sooveichik, "Hirhurim a Miyyuno she ha-rambarn be-mishneh Torah: Be'yoAmiiyyo u-medurnrno," Maimonidean Sudies 4 (New York: Yeshiva Universiy Press, 2000), pp (Hebrew numbering). 2. Kovez Teshuvo ha-rambam ve-ggeroav, ed. A. Lichenberg (Leipzig, 859), p. 26a, quoed in Twersky, nroducion, p. 242, n Twersky, nroducion, p Twersky, nroducion, p From his poin o view, Avraham Weiss's view (a eas a one sage in his ie) o he Mishnah as Rabbi's "ecure noes" is a variaion on he aer heme; i diers rom he view o he Mishnah as a coecion chiey in ha i aemps o expain he Mishnah's ack o sric order, as wi be discussed. 25 See Zechariah Franke, Dakei ha-mishnah (859; repr. Te Aviv, Sinai, 959), p. 228, esp. n. 6; he Bavi's remark abou R. Ashi is ound a bb. B. 57b. Modern schoarship does no inerpre he commen in his way; see Avraham Weiss, Hihavvui ha Tamud bi-sheemuo (New York: Kohu, 943), pp Hanokh Abeck, Unersuchungen ueber die Redakion der Mischna (Berin: C. A. Schweischke & Sohn, 923); a pae reecion o his work appears as par o his Mavo a Mishnah. 27. J. N. Epsein, Mevo'o e-sairu ha-tanna'im. Mishnah, Tosea u-mureshei Haakhah, ed. E. Z. Meamed (Jerusaem: Magnes, 957).' 28. See Abeck, Unersuchungen, pp. 4-6, or dozens o exampes. 29. Abeck poins, ineraia, o he enacmens o Rabban Yohanan b. Zakkai in mr.h. J 4:-4, or hose o Yohanan he High Pries in mso 9:6 and mm.s. 5:5, 30. mar 2: mmeg :4-. Abeck, Mavo a-mishnah (Jerusaem: Mosad Biaik, 5727), pp , assembes a arge number o such exampes. 32. See his Mavo a-mishnah, pp. 9<) See his discussion o his maer in his Mehqanm ba-baraiia ve-tosea ve-yahasan,. a-tamud (Jerusaem: Mosad Harav Kook, 969), pp. 8o--S See Y. Kaih's ransaion, Mishnah im Perush Rabbenu Moshe ben Maimon (Jerusaem: Mosad Harav Kook, 5729), vo., c. 4b. 35. So he Bavi's use o he phrase saam an Tanna... a Bez za,yeb b, Ke 43b [saam an Tanna ke-rabbi], Qid 54b, Sanh 27b, Bek a, Tern W. 36. Abeck's argumens are o be ound in wo paces: in he chaper devoed o he quesion o he sources o he Mishnah in his Mayo a-mishnah, pp. 8&-<)8, and in his Unersuchuneen. esd. nn..,r-rr

14 78 Ancien israe and Cassica Judaism 37 Abeck, Unersuchungen, pp Epsein, Mevo'o. may no be wihou signiicance ha Magnes, which uimaey pubished no ony Epsein's ecure noes bu aso hree voumes o his coeced papers ('vehqarim be-saru ha-tamud uvi-lshono Shemiyo, aso edied by E. Z. Meamed [ ], and which reprined (aong wih Devir) his Perush ha-geonim e-seder Toharo (98 2), did no reprin his arice in he hree-voume coecion. 39 See his arice, "Tosea Aiqa," Tarbiz 62 (993): say "ormay parae" because Tosea is generay arranged according o he order o he Mishnah, and in his case he opics are roughy parae. is he discordance beween hem ha draws Friedman's aenion. 4. "Tosea Aiqa," pp The ransaion is mine. F See my Auhoriy and Tradiion (New York: Yeshiva Universiy Press, 994), pp See he ieraure cied in n Avraharn Weiss, Diyyunim be-bava Qamma (New York: Fedheim, 966), pp See his commenaries on Mishnah Shabba and Eruvin, Perush La-Mishnah: Masekhe Shabba (Jerusaem: Jewish Theoogica Seminary, 976), and Perush La-Mishnah: vasekhe Eruvin(Jerusaem: Magnes, 986). 46. See n. 9 or he voume; he arice, "Ve-kuhu aiba derabbi Aqiva," Tarbiz 38 (968/9): Anoher arice, Godberg, "Darke she R. Yehudah ha-nasi be-hibbur ha Mishnah," Tarbiz 28 (958/9):260-{)9 is aso reevan. 47 "Ve-kuhu," p bid., p bid., p bid., p bid., p bid., p bid., p bsanh 86a, cied by Godberg, p. 223; indeed, he ie o his Tarbiz 38 arice is simpy a reprise o his saemen. 55 See A. Weiss, A Hamishnah: [Ose Maamarim], (Rama Gan: Bar Urian, n.d)., )p. -5, esp. pp. 4-6, originay pubished as "Ha-Pauga be-ferush ha-miah Mav'eh be Mishnah, ba-bavi, uvi-yrushami," Hazoeh e-hokhma Yisrae (Budapes, 926), pp. 44 ; Godberg sees he ourh and ina ayer o he Mishnah as having been "ormuaed under he aegis o R. Yehudah he Pariarch" ("Ve-kuhu," p. 27)' 57 See Marin Goodman, The Roman Word: 44 BC-AD 80 (London: Rouedge, 997, pp. 49""""56. Noe in paricuar he oowing, &om p. 5+ "A cuured Greek speaker by he ime o Augusus] woud be expeced o know Homer we and he pays o he ~rea ragedians, which ensured amiiariy wih he Greek myhs. He or she coud be expeced o have some acquainance wih Herodous and Thucydides, and wih he greaes ) he oraors, such as Dernoshenes and Aeschines." 58. See Aan Wason, The Spiri o Roman Law (Ahens, Ga: Universiy o Georgia :>ress, 995), pp. -9, 20-03, 8-<)3, "7-45, and O. F. Robinson, The Sources o Roman :"aw (London: Rouedge, 997), pp See Eduard Sachau, Syrische Rechsbuecher, 3 vos. (Berin: Georg Reimer, )' [esuboh's Corpus consiues he arges secion o he hird voume and covers a iundred pages o Syriac ex. 60. See now he comprehensive ediion o M~ri:: M::rrh Rprhdurwi.ib unr Order, Sequence, and Seecion 79 Cerichispraxis zu Beginn des siebenien Jahrhunders in ran: Die Rechssammung des Farrohmard i Wahraman (ranica ) (Wiesbaden: Oo Harrossowiz, 993) and Macuch, Das Sasanidische Rechsbuch "Maakdan i Hazar Daisan (ei J) (Wiesbaden: Deusche Morgenaendische Cesescha-Franz Seiner, 98). For a recen ransaion o he Russian ediion o A. G. Perikhanian, see Perikhanian, The Book o a Thousand Judgemens (A Sasanian Law-Book) (Cosa Mesa, Ca: Mazda Pubishers, 997). 6. Lee. Levine, Judaism 6- Heenism in Aniquiy: Conic or Conuence? The Samue & Ahea Sroum Lecures in Jewish Sudies (Seae: Universiy o Washingon Press, 998), pp ; see aso he arice on educaion and he appended bibiography by Rober Kaser in G. W. Bowersock e a., Lae Aniquiy: A Guide o he Poscassica Word (Cambridge, Mass.: Harvard Universiy Press, 999), pp For he aer period, see Caherine Hezser, "The Codiicaion o Lega Knowedge in Aniquiy: The Tamud Yerushami and Roman Law Codes," in Peer Schaeer, The TamudYerushami and Graeco-Roman Cuure, vo. (Tuebingen: Mohr-Siebeck 998), pp {i4. For he earier period, see Marin Henge, Judaism and Heenism (Phiadephia: Forress Press, 98), pp Les be accused o an unheeding paraeomania, see Levine's measured cauions on pp.2-3, hough or a very dieren view on his poin, see Louis H. Fedman, Jew 6 Genie in he Ancien Word (Princeon, N.J.: Princeon Universiy Press, 993). 62. Or wheher we may posi any connecion, however remoe, beween ha o he redacion o he Bavi and various Sasanian aw books, or ha maer. 63- is perhaps no inappropriae o noe here Jacob Neusner as ar back as 969 caed or he sudy o Madayan i hazar dadesan as "a eas as ineresing or comparaive purposes as Jusinian's Code." See his Hisory o he Jews in Babyonia, V. The Age o Shapur JJ (Leiden: E. J. Bri, 969), p The nsiues o Caius, rans. wih an inroducion by W. M. Gordon and O. F. Robinson, wih he Lain ex o Secke and Kueber (ihaca, N.Y.: Corne Universiy Press, 988), pp. 75, mshevi p; M.S. 5:8; Bik n; Sheq :2, 7=5; Yom 2:; Suk p2; R.H. 2:, 2:2, 2:5, 4:3, 4+ 4:9; Ned 9:6, :2 (wice); Gi p (wice), 6:5; Bek :7; Ar 9:4; Nid 0:6; T.Y. 4:5 (wice). i is perhaps noeworhy ha he orders o Qodashim and Taharo, which migh be expeced o conain a grea dea o such maeria, conain neary no such repors. 66. Thus, see mshab :4-8 or Yad 4:-4. So 5:2-5, which are described as occurring bo ba-yom, "on ha day" ha R. Gamaie was deposed rom being pariarch. 67. See Gordon and Robinson, nsiues, p Judging rom oher coecions, incuding he Syriac aw books edied by Sachau and he enh-cenury Rivaya i Hemi Ashavahishan, no major area oaw is omied rom j he Madayan i Hazar Dadesan. However, his impression may be due o he pauciy o our sources. For a discussion o he sources o Farroxrnard's coecion, see Macuch, Rechskasuisuk, pp. -5. i is noeworhy, however, iia ony he Dadesan Namag woud seem o have been comprehensive in his regard. The oiier works Macuch iss on p. 4 are ceary paria, aong he ines o he praeorian edics o Roman aw. ' 69. See Shau Shaked, Wisdom o he Sasanian Sages (DenkardV), Persian Heriage " Series 34 (Bouder, Co.: Wesview, 979), and or an od and no aogeher reiabe ransaion, see Dinkard, ed. and rans. P. B. and D. P. Sanjara, 9 vos. (Bombay, compeed in 928). 70. Tha is, he mos receny pubished voume. 7. Macuch, Rechskasuisik, p Jacob Neusner, The Toseia, p. 20. This was irs pubished in vo. 2 o his A Hisory o he Mishnaic Law o Puriies: Voume 2: The Redacion and Formuaion o -.-:' he