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MIDRASH AND MISHNAH 

A STUDY IN THE EARLY HISTORY OF THE 
HALAKAH 

By Jacob Z. Lauterbach, Hebrew Union College. 

II 

We have seen above that the name ' Soferim ' designates 
a class of people who occupied themselves with ' the Book ' 
and taught from that ' Book ' alone. This name has been 
applied to the earliest teachers of the Halakah, because 
they imparted all their teachings in connexion with the 
Book of the Law, either as an exposition of it or as a 
commentary on it, that is to say in the form of the 
Midrash. This, we have seen, is asserted by tradition and 
agreed upon by almost all the modern scholars. There is 
absolutely no reason for assuming that any of the teachers 
belonging to the group of the Soferim, whether the earlier 
or later, departed from this peculiar method of teaching. 
For the name Soferim was given to the teachers because 
of this method of teaching and continued in use only 
as long as they adhered exclusively to this method. As 
soon as the teachers ceased to occupy themselves exclu- 
sively with the Book of the Law and its exposition and 
began to teach abstract Halakot also, the name applied 
to them was no longer Soferim but 'Shone Halakot' or 
Tannaim (see especially J. Briill, Mebo ha-Mishnah, Frank- 
furt a. M., 1876, II, p. 2). The haggadic saying of Rabbi 

23 



24 THE JEWISH QUARTERLY REVIEW 

Abahu 2e (in Yerushalmi Shekalim V, i, 48 c) which Weiss 
and Oppenheim cite as a proof of their contention that the 
Soferim taught abstract Halakot in the Mishnah-form, does 
not refer to the Soferim at all. It does not say anything 
about their methods or form of teaching. It refers to the 
Kenites, who in 1 Chronicles a. 55 are identified with the 
families of Soferim, the inhabitants of Yabez, the Tir'atim, 
the Shim'atim, and Sukatim. In all these names th<jf 
Haggadah seeks to find attributes for the Kenites, indi- 
cating some of their peculiar characteristics. R. Abahu 
here gives an haggadic interpretation of the name Soferim 
applied to the Kenites in the same fanciful manner as the 
other names, Tir'atim, Shim'atim, and Sukatim are inter- 
preted in Sifre, Numbers 78 (Friedmann ao a). 

Oppenheim advances still another argument to prove 
that the Soferim taught abstract Halakot. Since many of 
the traditional laws designated as ^DD nwvb rabn must 
have been transmitted by the Soferim, it follows (so 
Oppenheim) that the Soferim taught independent tra- 
ditional laws in Mishnah-form. This is not at all 
convincing. Granted that there were such unwritten 
laws handed down from Moses to the Soferim, and that 
these formed part of their religious teachings, it does 
not necessarily follow that these traditional teachings 

26 The passage in p. Shekalim reads as follows : 3TD 1D3K 1 "IDN 

riK iw t6x DnsiD ~idi$> iiD$>n no jojp iserc nnsio ninetwi 
'ui rbra CTTi onm nccn loniv vh 'n rvmso nmaD minn. 

Weiss (Dor, I, p. 66) refers to this saying in the words : P2T W 13'ttrn 

nmsD minn ns w DnsiDns? (D^pt? W) imbnn 'Dan nn, 

and Oppenheim (Hashahar,\l\, p. 114) states: 1TOK "\ "l»N ^BTTOI 

'ui idi-itp t<b 'n fas nniBD minn nx ityyc *sb DnsiD ;niN pip iw. 

Both of them erroneously take this haggadic saying as a characterization 
of the methods of the Soferim and as a reason for their name. 



MIDRASH AND MISHNAH — LAUTERBACH 25 

were given in the Mishnah-form. They could as well 
have been given as additional laws in the Midrash-form, 
together with the scriptural passages with which they 
had some sort of relation, though not based on or derived 
from them. 27 It is therefore absolutely certain that the 
change in the form from Midrash to Mishnah was not 
made during the period of the Soferim. 

The period of the Soferim came to an end with Simon 
the Just I about 300-270 B.C. In Abot 1, 2 he is desig- 
nated as being 'of the last survivors of the men of the 
great Synagogue', which means that he was the last of 
the Soferim. During the time of this Simon the Just I, 
who still belonged to the Soferim, there could have been 
no Mishnah. We have, therefore, to look for the origin 
of the Mishnah-form in the times after Simon I, that is, 
after 270 B.C. We have thus gained at least this much. 
We have fixed the terminus a quo, the beginning of the 
period during which the innovation of the Mishnah-form 
could have been made. We have now to find the terminus 
ad quern, namely, the last possible date for the introduction. 
In seeking to determine this latter date, the only proper 
way would be to find the oldest authentic Halakah men- 
tioned in talmudic literature without its scriptural proof, 
that is, in the Mishnah-form. In determining the date when 

27 If, for instance, the regulations about the colour of the thongs and 
the form of the knot of the phylacteries were traditional laws given to Moses 
on Sinai, DC'DP'Tt, as is claimed by some of the Rabbis of the Talmud 
(Menahot 35 a, b), these could have been nevertheless taught together with 
the passage in Deut. 6. 8. The teachers could have stated that the com- 
mandment ' and thou shalt bind them ' is explained by tradition to mean, 
first, to tie them only with black thongs, niTlPIB' myiXI; and second, that 
the phylacteries must be square, nWHD ; also that the knot must be of 
a certain shape ; and lastly, that the letter Shin, E>, must be impressed on 
the outside, &c, &c. 



26 THE JEWISH QUARTERLY REVIEW 

such a Halakah was given, we shall eo ipso have deter- 
mined the date when the change in the form had already 
been made and the Mishnah-form was already in use. 
This seems to be the simplest and only logical method 
of procedure. Strange as it may seem, this method has 
not been followed by any of the scholars who have 
attempted to solve our problem. 

The first teacher in whose name we have independent 
Halakot is Jose b. Joezer, 28 who died about 165 b. c. 29 
The sayings of Simon the Just and Antigonos (Abot 1, 
2, and 3) are merely wisdom maxims and not halafcic 
teachings. Connected with the name of Jose, however, 
we have three halakic decisions mentioned without any 
scriptural proof, i.e. in Mishnah-form (Mishnah Eduyot 
VIII, 4). The authenticity of these Halakot is not to be 
doubted. They are certainly decisions given by Jose ben 

28 Frankel's statement, 1K3 DDB> b]} T&H OWNVI DPI »NDn V?n <3 
Kn ,,_ a31 iWDS mairi , that ' Hillel and Shammai were the first teachers in 
whose name Halakot are mentioned in the Mishnah and Baraita ' {Hodegetisa, 
p. 38) is, to say the least, surprising. We find Halakot from all the four 
preceding Zuggot. Thus a Halakah is mentioned in the name of Shemaiah 
and Abtalion concerning the quantity of 'drawn water' (D'SlNtJ* D'D) that 
is sufficient to disqualify the Mikwah (Eduyot I, 3), not to mention the 
Halakot in regard to the slaughtering of the passover sacrifice on sabbath 
which Hillel is said to have received from them and taught in their name 
(p. Pesahim 33 a and b. Pesahim 66 a). Simon b. Shetah mentions a law 
in the name of the D'Mn in regard to the punishment of false witnesses 
(Makkotsb). From Joshua b. Perahia we have a Halakah in regard to 
wheat brought from Alexandria (Tosefta Makshirin III, 4), and in the name 
of Jose b. Joezer we have the three Halakot (M. Eduyot VIII, 4). 

s9 The date of Jose's death can only be approximated. He died when 
Alcimus was still in power (see Genesis r. LXV, 22). Probably he was 
among the sixty men whom the Syrian general Bacchides killed at the 
instigation of Alcimus (I Mac. 7. 16). Alcimus died 160 b. c. (see Buchler 
in the Jewish Encyclopaedia, I, 332-3). 



MIDRASH AND MISHNAH — LAUTERBACH 2^ 

Joezer. 30 In the form in which they are preserved they 
have already been taught by his colleagues or disciples. 
Thus we find that in the last days of Jose b. Joezer or soon 

30 Jose b. Joezer's authorship of these Halakot was first questioned by 
Dr. Jacob Levy in Osar Nehmad, III, p. 29. In the course of his discussion, 
however, Levy arrives at the conclusion that these Halakot were really 
given by Jose b. Joezer of Zeredah. Following Levy's first suggestion, 
Graetz (Monatsschrift, 1869, pp. 30-31) and after him Buchler (Die Priester 
und der Cultus, p. 63) assume that these three Halakot belong to some later 
teacher whose name was likewise Jose b. Joezer, although such a teacher 
is otherwise not known. There is, however, no necessity for seeking any 
other author than the well-known Jose b. Joezer of Zeredah who is expressly 
mentioned in our sources. The fancied difficulties of ascribing the decisions 
to Jose b. Joezer of Zeredah disappear on close examination. The main 
difficulty is said to be the difference in time between the date of Jose and 
the date of the Eduyot-collection. How could Jose b. Joezer of Zeredah, 
who died before 160 b. c, have testified before the teachers in Jabneh about 
100 c. e. on that memorable day when Gamaliel II was deposed from the 
presidency, and when according to a talmudic report (Berakot 27 b) the 
Eduyot-collection was arranged ? Were this a real difficulty, it could easily 
be removed by assuming with Levy (op. at., p. 36) that the word DltTD 
'in the name of was left out in our Mishnah, and that the text ought to 
read nTnX 55»N 1W )3 W "01 DIS'D Ttfri ' A teacher testified in the 
name of Jose b. Joezer of Zeredah '. However, no real difficulty exists. 
The theory that all of the Halakot contained in our Eduyot-collection are 
testimonies that were deposed before the teachers at the assembly at Jabneh, 
cannot be maintained. Our Eduyot-collection contains other Halakot than 
those testified to before the assembly at Jabneh. It contains also Halakot 
that were not even discussed at that assembly. To the latter class belong 
the three Halakot of Jose b. Joezer (see H. Klueger, Ueber Genesis und 
Composition der Halakoth-Sammlung Eduyoth, Breslau, 1895). It is not 
necessary to assume, as Klueger (/. c, p. 84) does, that these decisions had 
been found in written form in the archives. These Halakot were simply 
known to the teachers just as the other sayings and teachings of the Zuggot 
were known to them. They had been transmitted orally and studied by 
heart, and at the time when the Eduyot collection was composed or redacted, 
these three Halakot were incorporated in it. Compare also Hoffmann in 
his commentary on Mishnah Eduyot, ad loc. 

The other difficulties in these three Halakot will be considered later 
in the course of this essay, when we come to the discussion of the Halakot 
themselves. 



28 THE JEWISH QUARTERLY REVIEW 

after his death some Halakot were already taught without 
any scriptural proof, that is, in the Mishnah-form. Ac- 
cordingly we have found the terminus ad quem for the 
innovation of the Mishnah-form. 

We now pass to a consideration of the particular point 
of time in this period when the new form was introduced. 
We have good reasons for believing that these decisions 
of Jose are not only the first mentioned, but in all 
likelihood the first ever taught in Mishnah-form. Indeed, 
a reliable report in the Talmud, as well as certain 
indications in gaonic traditions, points to the last days 
of Jose as the time when the change in the form of 
teaching was made. This talmudic report is given in 
Temurah 15 b by Samuel, but it is undoubtedly an older 
tradition which Samuel merely reported. It reads as 
follows: 31 nDK> iv nm> nw btri&b pb noyt? rohaew bs 
vn ab "£w jk:jd wji ntwa mm po5> vn -iryv p w (Proo') 
W3T npea min Iftcb 'All the teachers who arose in Israel 
from the days of Moses until the death, or the last days, 
of Jose b. Joezer studied the Torah as Moses did, but 
afterwards they did not study the Torah as Moses did '. 
The discussion that follows in the Talmud endeavours to 
explain the meaning of this report. Here we learn that 
the report was not understood to mean that the teachers 
until the time of Jose's death were in possession of as many 
laws as Moses had. Nor was it understood to say that 
they were all of one opinion and had no doubtful or 
disputed Halakot. The report, so the discussion ends, 
can only be understood to say that they taught in the 

31 The correction suggested by Graetz (Monatsschrift, 1869, p. 23) to read 
W nl» , 15) 'till the days of Jose ', instead of 'DV rlDB> 1)) ' till Jose died ', 
is very plausible. 



MIDRASH AND MISHNAH — LAUTERBACH 29 

same manner in which Moses taught, in? *V!M Vin -idj'd 

We are not told what this method was and what it 
means to study or teach in the manner of Moses, but it 
is evident that this method can only be the Midrash-form. 
To give all the Halakot as interpretation of the written 
word means to study or teach like Moses did. Assuming, 
as the Rabbis did, that all the interpretations given in the 
Midi-ash are correct explanations and definitions of the 
written Law, all the teachings given in the Midrash-form 
were really contained in the words of Moses. And Moses 
must have taught them in the same manner in which they 
are taught in the Midrash. For Moses must have read to 
the people the written laws and interpreted the full 
meaning of each and explained each passage or each 
word of the Torah. That the phrase 'to study in the 
manner of Moses' is used to indicate the Midrash-form, 
can also be seen from another passage in the Babylonian 
Talmud. In Yebamot 72b we read that Eleazar b. Pedat 
refuted an opinion of R. Johanan by quoting a scriptural 
passage and giving an interpretation to it. R. Johanan, 
thinking that R. Eleazar, in his argument, was making 
use of an original interpretation, characterizes his method 
in these words : moan »ao ntyco cnm aw ma pi> vvtn 
' I see that the son of Pedat studies in the manner of 
Moses'. Simon b. Lakish, however, informs R. Johanan 
that this argument was not original with R. Eleazar, but 
was taken from a Midrash-Baraita in Torat Kohanim, as it 
is indeed found in our Sifra (Tazria* I, Weiss 58 b). We 
see, thus, that to study or teach in the Midrash-form, as is 
done in our Sifra, is characterized as being ' in the manner 
of Moses ' (nt?D3 trim yen*). The report in Temurah 15 b, 



3<5 THE JEWISH QUARTERLY REVIEW 

accordingly, tells us that until the death or the last days of 
Jose all the teachers taught in the Midrash-form, which is 
called ' in the manner of Moses ' 32 

This seems also to have been the tradition among the 
Geonim, though for reasons of their own they did not care 
to express themselves distinctly about this question. We 

32 This report in the Talmud might perhaps be confirmed by the report 
about the religious persecution in the time of Antiochus Epiphanes. Among 
the many prohibitions against Jewish religious practices devised by the 
Syrian ruler for the purpose of estranging the Jews from their religion, which 
are mentioned by the authors of the Books of Maccabees (i Mace. ch. i, and 
a Mace. ch. 6), we do not hear of any special prohibition against teaching 
the Law, as was the case in the Hadrianic persecutions (b. Abodah zarah 
I7b-i8a, compare Graetz, Geschichte, IV, 4, pp. 154 ff.). On the contrary, 
we learn from the saying of Jose b. Joezer, who lived at that time, that no 
such prohibition was enacted. For Jose said, ' Let thy house be a meeting- 
place for the wise : sit amidst the dust of their feet, and drink their words 
with thirst ' (Abot I, 4). Evidently the wise teachers could meet unmolested 
in private places, and could impart their religious teachings. Yet there 
is no doubt that the aim and the tendency of the Syrian government were 
to suppress the religious teachings and to make the Jews forget their Law. 
We hear that the Books of the Law were rent in pieces and burned with 
fire, and that the king's command was that those people with whom the 
Book of the Law would be found should be put to death (1 Mace. 1. 56-7 ; 
Josephus, Antiquities, XII, 3, § 256). Evidently the persecutors believed 
that to burn the books of the Law and to punish any one who possessed 
them was sufficient to prevent the study of the Law. This was a very 
correct surmise. Since all teachings were given in the Midrash-form, 
that is, as an exposition and explanation of the Book of the Law, it followed 
that to take away the Books of the Law meant to effectually prevent any 
religious instruction. It was to meet this peculiar situation that Jose uttered 
his wise saying. Inasmuch as many of the Books of the Law were burnt, 
and as it was extremely dangerous to use those that had been secretly saved, 
Jose advised the people to make every home a place where the wise teachers 
might meet, and where one might listen to their words of instruction even 
without books. 

These peculiar conditions may in some degree have helped to accustom 
the teachers to impart religious instruction altogether apart from the Book 
of the Law, namely in Mishnah-form. 



MIDRASH AND MISHNAH — LAUTERBACH 31 

have seen above that Sherira, in describing the period 
during which the Midrash-form was in exclusive use, 
employs the term W enpo3 Nlp'yo, but does not define 
how long this ' earlier period of the second Temple' lasted. 
However, we shall arrive at a more exact interpretation of 
this vague term by comparing its usage in a responsum 
of R. Zemah Gaon. In this responsum 33 the following 
statement occurs : iTn oriD enp»3 penn bmw iw wo bs 
D3n Dtr 13 rrri k5>i 'All the traditional law (wo is here 
used in its broader sense) which they used to teach in 
the Midrash-form, j'SSHVI 1W, in the time of the Temple, 
was anonymous, and no individual teacher is named or 
connected therewith'. The time which Zemah Gaon has 
in mind and which he designates as itnpos cannot include 
the whole period of the second Temple. Many names 
of individual teachers living in the time of the second 
Temple are preserved to us together with their teachings, 
and these names were no doubt already mentioned in the 
collections of Halakot that existed in Temple times. 
R. Zemah Gaon can only refer to the time before Jose b. 
Joezer, when, indeed, no individual names were mentioned 
in connexion with the halakic teachings, the latter being 

53 This responsum is quoted by Epstein in his Eldad ha-Dani, pp. 7-8, 
and more fully in Jellinek's Beth Hamidrash t II, pp. 112-13. We shall 
discuss it in detail later on in the course of this essay. Zemah's statement 
that Eldad's Talmud followed the custom of old when they taught the 
Halakah without mentioning the names of individual teachers, finds cor- 
roboration in the manner in which the halakic teachings as quoted by Eldad 
were introduced. According to Eldad all the halakic teachings were 
introduced with the phrase ntQXi »BO ffiPD <BO JMCW "ION. This 
phrase, like the phrases mi33n »BD nt5>03 &1H1 W and miD po5> 
W3"l ntyOO, would well describe the older Midrash-form, in which all 
teachings were given in the name of Moses, i.e. as interpretations of the 
very words of Moses. 



32 THE JEWISH QUARTERLY REVIEW 

given as interpretations of the Scripture (pBHH 1W), that 
is, in the Midrash-form. It is most probable that Sherira 
by the term enpoa tnp^D refers to the same period 
which Zemah Gaon designates as cnpD3, that is, to the 
time before Jose b. Joezer. We can therefore reasonably 
conclude that the new form of teaching the Halakah, i. e. 
Mishnah-form, was first made use of in the closing days 
of Jose b. Joezer. 34 

We have, now, to ascertain the reason for the intro- 
duction of a new form of teaching the Halakah alongside 
of the older form. Having fixed the time, we must now 
inquire into the conditions of that time, to see if we cannot 
find in them the reason for the innovation. An examina- 
tion of the conditions that obtained during the period 
under consideration reveals the fact that many great 
changes had taken place in the life of the Judean 
community. We notice the presence of various new 
tendencies. The people's outlook upon life and their 
regard for the law had considerably changed. Even 
among the teachers and leaders we find new and diver- 
gent attitudes towards the Law of the fathers on the one 
hand and towards the new ideas and tendencies on the 
other hand. All these changes were brought about by 
the one radical change in the political condition of the 
people, resulting from the passing of Judea from Persian 

s * It is perhaps for this very reason that the teachers until the time 
of Jose were called JIvOK-'N. This is correctly interpreted by Samuel 
in the Talmud (Temurah 15 b and Sotah 47 b) to mean 13 ?2tV& B"N, viz. 
that each man spoke only the opinion of the whole group and that the group 
spoke for each man, in the sense that the teachers acted as a body, not 
as individuals. The report that the Eshkolot ceased with the death of 
Jose b. Joezer, nijUBWl 1^D3 1W J3 »DV DOB'S, means therefore 
that this concerted action of the teachers ceased with Jose, and after him 
they began to mention Halakot in the name of individual teachers. 



MIDRASH AND MISHNAH — LAUTERBACH 33 

to Greek rule. This great political change caused the 
interruption of the activity of the Soferim as an authori- 
tative body of teachers. This interruption of the activity 
of the Soferim which was coincident with the death of 
Simon, the last member of that body, in the course of time 
led to a departure from the methods of the Soferim and 
necessitated the introduction of a new method of teaching 
the Halakot, namely, the Mishnah-form. In order to 
prove this, we must first review the conditions that 
prevailed in the time of the Soferim and examine the 
methods of the Midrash used by them. 

As said above, the Soferim taught the people only 
the Book of the Law, mwin "iDD, with such interpretations 
and explanations as they could give to it. Their exe- 
getical rules and Midrash-methods, simple as they were, 
were nevertheless sufficient for their purpose, which was to 
give all the halakic teachings in connexion with the 
written Law. There was no reason whatever to make 
any change in the form of teaching, and there was 
absolutely no need to teach anything else besides the Book 
of the Law and its Midrash. The stream of Jewish life, 
during the period of the Soferim, moved on smoothly and 
quietly, without any great changes. Under the Persian 
rule the Jewish people were merely a religious community, 
at the head of which stood the high-priest, 36 who was the 
highest religious authority. The conditions which pre- 
vailed in this community during the last days of the 
Persian rule were almost the same as in the earlier days, 
when the community was first organized by the exiles 

35 This was the case, at any rate, in the second half of the Persian 
period. See Wellhausen, Isvaeliiische und Jiidische Gesckichte, 3rd edition, 
pp. 198 ff., and Schiirer, Gesckichte, II, 4, pp. 267 ff. 

VOL. VI. D 



34 THE JEWISH QUARTERLY REVIEW 

who returned from Babylon. The Book of the Law ac- 
cepted from Ezra by these early founders and organizers 
with the few simple interpretations given to it by the 
Soferim, was therefore sufficient for almost all the needs 
of the community throughout the entire Persian period. 
Of course, some slight changes in the conditions of life 
must have developed in the course of time. These changes 
in the inner life of the community probably brought new 
religious customs. The same changes probably required 
certain modifications in the interpretation of some of the 
written laws or even the introduction of new laws and new 
practices. All these necessary modifications and even the 
few new laws the Soferim could easily read into the 
written Law by means of interpretation, or even embody 
the same in the Book by means of some slight indications 
in the text itself. Thus they found in the Book of the 
Law all the teachings they required. 

The Soferim were able to do this because they were 
also the actual scribes whose business it was to prepare 
copies of the Book of the Law. If they desired to teach 
a certain law, custom, or practice, because they considered 
it as part of the religious teachings, although it could not 
be found in, or interpreted into, the Book of the Law, they 
would cause it to be indicated by some slight change in 
the text. 36 For instance, by adding or omitting a letter, 

36 As we have received the Torah from the Soferim and only in the 
textual form in which they cast it (not considering some slight changes and 
additions that may have been made in the period after the Soferim, see below, 
note 43), it is impossible now to ascertain the full extent of the changes and 
corrections made by the Soferim in the original text of the Law. However, 
there is no doubt that the Soferim did change and correct the textof the Torah 
which they originally had. A tradition to this effect was current among the 
Rabbis of the Talmud. The Rabbis often refer to such changes as ' correc- 



MIDRASH AND MISHNAH — LAUTERBACH 35 

or by the peculiar spelling of a word they could bring about 

tions of the Soferim', DHD1D JlpT) (Genesis r. LIX, 7 and Exodus r. XIII, 1) 
or D ,- 1D1D rOpfl (Leviticus r. XI, 5). They enumerated many passages in 
the Scriptures which in their present form represent the corrected readings 
introduced by the Soferim (Sifre Numbers, § 84, Friedmann, p. 22b, and 
Mekilta, Beshattah, Shirah, VI, Weiss, pp. 46 b-47 a). In Tanhuma, Beskallah 
15 (on Exod. 15.7) it is expressly stated that all these corrections were 
made by the Soferim, the Men of the Great Synagogue, ICON D*1S1D ppTI 

rfonjn nwa ; also, itopa p^ nSijn ddu hmk ii»K dvim watw^K 

D"HB1D. Even if it should be granted that these statements in the Tanhuma 
are of later origin (see R. Azariah de Rossi, Meor Enayint, lmre Binah, 
ch. XIX), it cannot be disputed that the interpretation of the term flp*T\ 
D^DID as referring to the corrections made by the Soferim, who were 
identified with the Men of the Great Synagogue, is correct. This is confirmed 
by the fact that the same corrections, which in the Midrashim are designated 
as D^EID 'JlpTt, are designated in theMassorah, Oklah We-Oklah (No. 168, 
ed. Frensdorf,p. 113), as 'corrections made by Ezra' (SOW [pTl JvD n* v , 
who was the first of the Soferim. If this tradition about the CIBID "Olp^n 
conflicts with the later conception of the Rabbis, namely, that the entire 
Torah is from God, and that the one who maintains that there are some 
verses in the Torah which were not spoken by God, is a despiser of the word 
of God (Sanhedrin 99 a), this does not argue against the correctness of this 
tradition, as R. Azariah de Rossi (/. c.) assumes. On the contrary, this conflict 
speaks in favour of our tradition. For it proves that the tradition about the 
D^IDID "Olp'n was too well-known a fact to be suppressed by later dogmatic 
views. All that the later teachers could do was not to deny the fact that 
changes were made in the text but merely to avoid too frequent mention of it. 
When forced to mention the fact they pointed to a few harmless changes 
and omitted (as in Sifre and Mekilta) the direct reference to the Soferim 
as the authors of these corrections (compare Weiss, Middot Soferim, to 
Mekilta, p. 46 b). It was probably on account of such considerations that 
the reference to the Soferim, the Men of the Great Synagogue, was omitted 
from the passage in Tanhuma, in those old copies which R. Azariah de Rossi 
(/. c.) reports to have seen. The statement in the Tanhuma expressly 
ascribing the corrections to the Soferim, the Men of the Great Synagogue, 
is accordingly not of later origin, as R. Azariah assumes. The omission 
of this reference from certain copies was due to a later hand. 

Although the corrected passages pointed out by the Rabbis do not deal 
with the Law, we may safely assume (notwithstanding Weiss, /. c.) that the 
Soferim corrected even the legal portions of the Pentateuch. A correction 
of the Ketib K? into the Kere \? (Levit. n. 21) certainly affected the Law. 

D a 



36 THE JEWISH QUARTERLY REVIEW 

the desired result. 37 They did not hesitate to do so, 
because they did not in any way change the law as they 
understood it. The changes and corrections which they 
allowed themselves to make in the text were of such 
a nature that they did not affect the meaning of the 
passage, but merely gave to it an additional meaning, thus 
suggesting the law or custom which they desired to teach. 
In this manner they succeeded in grafting upon the written 
Law all these newly developed laws and customs which 
they considered genuinely Jewish. Even if the Soferim 
had desired to introduce a new religious practice or to 
teach a new law which could not be represented as an 
interpretation of the Law nor indicated in the text, they 
would not have been compelled to change their usual form 
of teaching. They could still have taught that law or 
custom together with the passage of the written Law with 
which it had some distant connexion, offering it as an 
additional law or a modification of the practice commanded 
in the written Torah. Thus, throughout the entire period 
of their activity the Soferim who, no doubt, formed some 
kind of an authoritative organization with the high-priest 
as its head, remained true to their name, and continued to 
teach only the Book of the Law with its interpretation — 
Midrash — and nothing else. 

That the activity of the Soferim as an authoritative 

This change, like most of the Kere and Ketib, originated with the Soferim, 
according to the talmudic tradition (Nedarim 37 b). The later teachers, 
for obvious reasons, would not mention the corrections made by the Soferim 
in the legal parts of the Pentateuch, as it would have cast unfavourable 
reflections on the authority of the Law and the validity of the Halakah. 

37 For illustrations of this method of the earliest Midrash to indicate 
Halakot in the text itself, see the writer's article ' Midrash Halakah' in the 
Jewish Encyclopedia, VIII, pp. 579 ff. 



MIDRASH AND MISHNAH — LAUTERBACH 37 

body of teachers ceased with the death of their last member, 
Simon the Just I (about 270 B.C.) has already been shown. 
It was the change from the Persian to the Greek rule 
that caused the interruption of the activity and ended 
the period of the Soferim. The change in the government 
brought about many other changes in the conditions of life 
and in the political status of the people. These, in turn, 
influenced the religious life and the communal institutions, 
and had their effect also upon the activity and authority of 
the teachers. All these changes in the inner life of the com- 
munity did not come to pass immediately after the people 
came under Greek rule, for a people cannot be quickly 
transformed by mere external influences. It was through 
a long process, lasting about half a century, that these 
changes were gradually effected. During the lifetime of 
Simon the Just, the new influences had not yet overthrown 
the authority and the leadership of the Soferim as an 
organized body of teachers. Simon who enjoyed the high 
respect of the people could maintain the old order even 
under the changed conditions by the very influence of his 
great personality. Being the high-priest and the respected 
leader of the people, he still preserved the authority of the 
teachers, and under his leadership they continued some of 
their usual activities. But with the death of Simon all the 
influences of the new order of things made themselves felt. 
The activity of the teachers as an authoritative body 
ceased. Even the authority of the High-priest was under- 
mined. He was no more the highest authority of a religious 
community and its chief representative. Other people 
assumed authority over the community. Laymen arose 
who had as much influence among the people and with the 
government as the High-priest, and they became leaders. 



38 THE JEWISH QUARTERLY REVIEW 

The people who had now been in contact with Greek 
culture for half a century, acquired new ideas and became 
familiar with new views of life, other than those which they 
had been taught by their teachers in the name of the law 
of their fathers. The rich and influential classes accepted 
Greek ideas and followed Greek customs. The leaders of 
the people were no longer guided by the laws of the 
fathers, nor was the life of the people any longer controlled 
solely by the laws and customs of the fathers as contained 
in the Torah. The teachers were no longer consulted 
upon all matters of life, as they had been in former days, 
when, with the High-priest at the head of the community, 
they formed an authoritative body. Consequently, the 
interpretation and the development of the laws of the 
fathers did not keep pace with the rapid changes and 
developments in the actual conditions of life. The changed 
conditions of the time brought forth new questions for 
which no decisions were provided in the laws of the 
fathers, and no answers could be found even in the inter- 
pretations and traditions of the Soferim, because such 
questions had never before arisen. These questions were 
decided by the ruling authorities who were not teachers 
of the Law, and in some cases probably by the people 
themselves. These decisions, presumably, were not always 
in accordance with the principles followed by the teachers 
of the Law. The decisions in new cases, given by ruling 
authorities, and answers to new questions, fixed by popular 
usage, became in the course of a few decades the established 
practices of the people. This development ensued because 
the people could not distinguish between decisions derived 
from the Law by interpretation, and decisions given by 
some ruling authority, but not based upon any law or 



MIDRASH AND MISHNAH — LAUTERBACH 39 

tradition of the fathers. Neither could the majority of the 
people distinguish between generally accepted customs 
that had been recently introduced, and such as had been 
handed down by the fathers. To the people at large who 
were not concerned about historical and archaeological 
questions, both were alike religious customs sanctioned by 
popular usage. 

Thus many new customs and practices for which there 
were no precedents in the traditions of the fathers and not 
the slightest indication in the Book of the Law, were 
observed by the people and considered by them as a part 
of their religious laws and practices. No attempt was 
made to secure the sanction of the authority of the Law 
for these new practices in order to harmonize the laws of 
the fathers with the life of the times. The few teachers 
(disciples of the Soferim) were the only ones who could 
perhaps have brought about this harmonization. By means 
of interpretation they might have found in the Book of 
the Law some support for the new practices, and they 
might have grafted the new and perhaps foreign customs 
upon the old, traditional laws of the fathers. But these 
teachers had no official authority ; they were altogether 
disregarded by the leaders and ignored by a large part 
of the people. 

The fact that there was no official activity of the 
teachers, in the years following the death of Simon the 
Just, is borne out even by the alleged traditional report 
given in Abot I. The Mishnah, despite its anxiety to 
represent a continuous chain of tradition and to maintain 
that the activity of the teachers had never been interrupted, 
yet finds itself unable to fill the gap between Simon the 



40 THE JEWISH QUARTERLY REVIEW 

Just I and Antigonos. 88 It does not mention the name of 
even one teacher between the years 270 and 190 B.C., that is, 
between the latest possible date of Simon's death and the 
time of Antigonos. Evidently tradition did not know of any 
teacher during that period. This would have been impos- 
sible if there had been any official activity of the teachers 
in those years. 

38 It is impossible to bridge over the gap in the succession of teachers 
as given in the Mishnah. It is evident that Antigonos could not have been 
the successor of Simon the Just I, and the immediate predecessor of the two 
Joses. Halevi's arguments (Dorot Hariskonim, I, ch. xii, pp. 198 ff.) are 
not convincing. The Mishnah speaks of the two Joses as contemporaries. 
As such they are also referred to Shabbat 15 a. We cannot for the purpose 
of upholding the other tradition, namely, that there was an uninterrupted 
chain of teachers, .deny this explicit report and make of Jose b. Johanan 
a colleague of Antigonos and a man older by a full generation than Jose 
b. Joezer. If Antigonos had been the pupil and successor of Simon the Just I, 
as Halevi (/. c.) assumes, he could not have been succeeded directly by the 
two Joses. We would then have a gap between 250 b. c, the date when 
Antigonos the pupil of Simon the Just I must have died, and 180 b. c, 
the time when the two Joses must have begun their activity. In spite of all 
the pilpulistic arguments of Halevi against Frankel, it is evident that the latter 
is right in assuming that Antigonos did not directly succeed Simon the Just I 
{Hodegetica, p. 31). If we still desire to consider the report in the Mishnah 
as correct, we must interpret it to mean that Antigonos succeeded Simon 
the Just II (see Weiss, Dor, I, p. 95) and not the last member of the Great 
Synagogue who was Simon the first (against Krochmal, More Nebuche 
Haseman, pp. 52 and 174). Indeed, the wording in the Mishnah seems to 
indicate this. For if the Mishnah meant to say that Antigonos succeeded 
that Simon the Just who is mentioned in the preceding paragraph of the 
Mishnah and designated as the last member of the Great Synagogue, it 
would have said 1JDD ?2''p, as it uses in the following passages the phrase 
DnD V2*p. The specific mention of the name in the statement pJJDt5>D b^p 
p'lyfl evidently shows that it was another Simon who is here referred to 
as the one who preceded Antigonos. This can only be Simon the Just II. 
At any rate, it is certain that after Simon I there came a time when there 
was no official activity of the teachers. Even the later tendency to recon- 
struct the chain of tradition, such as we have in the report in the Mishnah 
Abot, could not succeed in finding the name of a single teacher who flourished 
in the period between Simon I and Simon II (see IV). 



MIDRASH AND MISHNAH — LAUTERBACH 41 

Even in those days, there were without doubt some 
teachers who preserved the traditional teachings of the 
Law. There were some people who remained faithful to 
the laws and the traditions of the fathers, and among them 
some who studied the Law in the manner in which it had 
been taught by the Soferim. However, these teachers had 
no official authority. It was merely in a private capacity 
that they delivered their teachings to those who wished to 
follow them. However, absence of official authority not 
only did not prevent but even helped the activities of the 
teachers to become of great consequence for future develop- 
ments. It brought about two great results which later 
became the most important factors in developing the 
Halakah and in shaping the Jewish life. In the first place, 
it brought about the popularization of the study of the 
Law and paved the way for the rise of teachers not of 
the priestly families. In the second place, it preserved 
the text of the Book of the Law in a fixed form, 
which resulted in giving this text a sacred, unchangeable 
character. 

In the days of the Soferim, when the High-priest was 
the head of the community, and when the teachers under 
his leadership formed an official body vested with authority 
to arrange all religious matters in accordance with the Law 
as they understood it, the knowledge of the Law was 
limited to the priests who were the only official teachers. 39 

38 The Soferim, up to the time of the death of Simon the Just I, were 
mostly, if not exclusively, priests. See my Sadducees and Pharisees, p. 6. 
Compare also Schurer, Geschichte, II 4 , pp. 278-9, 373-4, and 455, and 
R. Smend, Die Weisheit des Jesus Sirach (Berlin, 1906), p. 346. Smend, 
however, goes too far in assuming that even as late as the beginning of the 
second century b. c. all the teachers of the Law were priests. This is not 
correct. In the middle of the third century b. c, after the death of Simon 



42 THE JEWISH QUARTERLY REVIEW 

On the one hand, the priests who were in possession of the 
law and tradition of the fathers considered the teaching and 
interpreting of the religious law as their priestly prerogative. 
They would therefore not impart to the lay people a 
thorough knowledge of the Law so that they too could 
become teachers. 40 This would have resulted in curtailing 
their own special privileges, a sacrifice which priests are 
not always willing to make. On the other hand, the 
people had no impetus to study the Law because they 
could rely on the authority of their official teachers in 
all matters religious. They were satisfied that 'the lips 
of the priest should keep knowledge and that they should 
seek the Law at his mouth ', and get from him decisions 
concerning all the questions of life. But when the 
authority of the High-priest as the ruler of the community 
was gone, and the priestly teachers also lost their official 
authority, the study of the Law was no longer the activity 
of an exclusive class of official teachers. A knowledge 



the Just I, there were already many lay teachers. In the beginning of the 
second century B.C. they already possessed great influence and were 
members of the Gerousia. The description of the Soferim as sitting in 
the senate and knowing the Law, which is given in Sirach 38, refers to 
both lay- and priest-teachers. 

i0 The saying ' Raise many disciples ', which is ascribed by the Mishnah 
(Abot I) to the Men of the Great Synagogue, does not argue against this 
statement. It can be interpreted to mean either to raise many disciples 
among the priests who should carry on the activity of teaching, or to 
educate many pupils in a knowledge of the religious law, but not to make 
them authoritative teachers. However, it is very probable that the later 
teachers ascribed to the early Soferim a motto which they thought the 
Soferim should have promulgated. As the fact of their being priest-Soferim 
was forgotten, the later teachers ascribed to them their own democratic 
tendencies. These tendencies were against the monopolization of the 
knowledge by the priests, and in favour of spreading the knowledge of 
the Law among the people at large. 



MIDRASH AND MISHNAH — LAUTERBACH 43 

of the Law and the traditions of the fathers no longer 
gave its possessor the prerogative of sharing in the ad- 
ministration of the community. At the head of the 
community now stood political leaders who arranged 
communal affairs according to standards of their own. 

The study of the Law now became a matter of private 
piety, and as such it was not limited to the priests. On 
the one hand, the priests no longer had any interest in 
keeping the knowledge of the Law jealously to themselves, 
as it did not bring them any special privileges. For such 
influence as the priests still had was theirs, not because 
they knew or taught the Law, but because they were the 
priests, in charge of the Temple, and members of the 
influential aristocratic families. 41 They therefore had no 
hesitancy in imparting a knowledge of the Law to the 
lay people. It must be kept in mind that there were at 
all times some true and faithful priests to whom their 
religion was dearer than personal advantages and family 
aggrandizement. These priests were now very eager to 
spread religious knowledge among the people. On the 
other hand, the lay people were now more eager than 
formerly to acquire such knowledge. Since there was no 
official body of teachers to decide authoritatively all re- 
ligious matters, the pious man who cared for the Law 
had to be his own religious authority. He therefore 
sought to acquire a correct knowledge of the laws and 
the traditions of the fathers. This resulted in the gradual 
spread of a knowledge of the Law among the pious 
laymen, and in the rise of lay teachers who had as much 
knowledge of the Law as the priestly teachers themselves. 
These new teachers soon claimed for themselves the 

41 See below, note 50. 



44 THE JEWISH QUARTERLY REVIEW 

religious authority which was formerly the prerogative of 
the priests. 

For about half a century, during the ascendancy of the 
power of the political leaders, these teachers, laymen, and 
priests had no recognized authority. They were not con- 
sulted as to the regulation of the communal affairs, and 
not called upon to answer questions resulting from the 
changed conditions of life. They therefore contented 
themselves with merely preserving the Law and the 
traditions that were left to them from the past, without 
trying to develop them further or add to them new 
teachings of their own. Accordingly, they continued to 
teach the text of the Book of the Law with the interpreta- 
tions given to it by the Soferim and the Halakot, which 
the latter indicated in or connected with the text of the 
Law. They did not forget any of the interpretations or 
teachings of the Soferim. 42 Thus they preserved the text 
of the Law in the exact form in which it was handed down 
to them by the Soferim, with all of its peculiarities, as well 
as all the changes and indications made in it by the 
Soferim. They neither changed the text nor inserted 
indications of new laws therein. And after the text was 
for many years in a certain form, that became the fixed 
and permanent form. In the course of a few decades that 
permanent form with all its peculiarities came to be con- 
sidered as sacred, so that no one afterwards dared to 

a I must emphasize this point in opposition to Oppenheim who assumes 
that in the time of persecution they forgot the teachings of the Soferim 
and for this reason began to teach independent Halakot. The troublesome 
times might have hindered original activity and the development of the 
teachings, but could not have prevented the preservation of the older 
teachings. If they did study at all, they studied what was left to them 
from the Soferim. 



MIDRASH AND MISHNAH — LAUTERBACH 45 

introduce textual changes, as the Soferim of old used 
to do, 43 for the purpose of indicating new laws or new 
meanings to old laws. Thus we see that after the death 
of Simon the Just I, the conditions in the community and 
as a result thereof the activities of the teachers differed 
greatly from those that were obtained in the times of the 
Soferim. There prevailed a state of religious anarchy, 
wherein the practical life of the people was not controlled 
by the law of the fathers as interpreted by the religious 
authorities, nor were the activities of the teachers carried 
on in an official way by an authoritative body. This 
chaotic state of affairs lasted for a period of about eighty 
years, until another great change took place which brought 
the religious anarchy to an end. This happened about the 
year 190 B.C., when an authoritative Council of priests and 
laymen was again established. This new Council or San- 
hedrin assumed religious authority to teach and interpret 
the Law and proceeded to regulate the life of the com- 
munity according to the religion of the fathers. 

According to a report in Josephus (Antiquities, XII, 3, 8), 
Antiochus III manifested a very friendly attitude towards 
the people of Judea after that province had come under his 
rule. Following his victory over the Egyptian king at the 
battle of Panea (198 B.C.), he is said to have addressed to 
his general Ptolemaeus an epistle in favour of the Jews. 
In this letter, reproduced by Josephus, the following para- 

4S We are not considering here the slight changes which according 
to Geiger (Urschrift, pp. 170 f.) were made as late as the time of R. Akiba 
and according to Pineles {Darkah shel Torah, p. 96) even as late as the time 
of Judah ha-Nasi I. As a whole the text was fixed. Possibly, the Pharisaic 
teachers, as the party grew in influence and as they became the sole 
authorities of the religious law, ventured again to make slight changes and 
to indicate their teachings in the text. 



46 THE JEWISH QUARTERLY REVIEW 

graph occurs (§ 142) : ' And let all of that nation live 
according to the laws of their own country and let the 
senate (yepova-ia) and the priests and the scribes of 
the Temple and the sacred singers be discharged from 
poll money and the crown tax and other taxes also.' We 
learn from this that the Jews under Antiochus III were to 
live according to their own laws, and that there was, 
besides the priests, another authoritative body, a senate 
or a Gerousia, of which laymen were also members. 
Otherwise the mention of the senate and the priests 
separately would have no sense. 4 * 

It is true that some details in the epistle prove the 
authorship of Antiochus to be spurious. It was evidently 
not written by Antiochus. It originated at a much later 
date and was only incorrectly ascribed to Antiochus by 
some Hellenistic writer whom Josephus followed (see 
Buchler, Die Tobiaden und Oniaden, pp. 158 seq.). How- 
ever, if the conditions in the Jewish community under 
Antiochus III had been known to be very different from 
those described in this epistle, neither Josephus nor his 
authority would have accepted the authorship of Antiochus. 

** Btichler (op. cit, p. 171) notices this strange feature in the epistle, 
namely, that the Gerousia is mentioned separately from the priests. He 
explains it by assuming that the epistle was originally written by a man 
who lived outside of Palestine and who did not know that in Palestine the 
senate was composed of priests. While this may explain why the author 
of the original epistle could have made the mistake, it does not explain 
how Josephus who was a Palestinian or the Palestinian authority that he 
followed could have accepted this epistle as genuine. One or the other 
certainly would have noticed that it did not represent actual conditions. 
This difficulty is removed by assuming that Josephus knew that at the time 
of Antiochus the Great the senate in Judea was formed not exclusively of 
the priests but also of laymen. He, therefore, did not find it strange that 
the epistle should mention the senate and the priests, i. e. the senate as 
a body not identical with the priests. 



MIDRASH AND MISHNAH — LAUTERBACH 47 

Evidently Josephus on his part had no reason to doubt 
the genuineness of * this epistle, and in his opinion it 
could well have originated from Antiochus. This can only 
be explained by assuming that Josephus knew from other 
sources that, after Judaea had come under Syrian rule, 
there was a revival of the religious life in the community 
and a renewal of the official activity of the teachers. From 
the same source he must have known that the people tried 
again to live according to their laws and that there was at 
the head of the community an authoritative body, a Senate 
or a Gerousia, of which lay teachers also were members. 
As these events took place under the rule of Antiochus, 
Josephus linked them in his mind with the political condi- 
tions under the same king and believed they were the 
direct results of Antiochus's friendly attitude towards the 
Jews. In this supposition Josephus was perhaps right. 
It is quite probable that the change in the government 
brought about the change in the internal affairs of the 
community. As it weakened the influence of the former 
political leaders, it made it possible for that new organiza- 
tion composed of priests and lay members to assume the 
leadership of the community. And when Josephus found 
an epistle, ascribed to Antiochus, which permitted the 
Jews to live according to their own laws and actually 
spoke of a senate besides the priests, he could well believe 
it to have been written by Antiochus. 

In a source older than Josephus we indeed find a report 
of the renewed religious activity by an authoritative 
assembly composed of priests and lay teachers in the first 
two decades of the second century B.C. I refer to the 
' Fragments of a Zadokite Work ', published by Schechter 
(Documents of Jewish Sectaries, vol. I, Cambridge, 1910). 



48 THE JEWISH QUARTERLY REVIEW 

There it is stated (Text A, p. i) that 390 years after God 
had delivered them (the Jewish people) into the hands of 
Nebuchadnezzar, the King of Babylon (about 196 B.C., i.e. 
390 years after 586 B. C), God made to grow a plant (i. e. an 
assembly) of Priests and Israelites. They (the members of 
that assembly) meditated over their sin and they knew that 
they had been guilty [of neglecting the religious laws]. 
They sought to find the right way [to lead the people back 
to the Law of God]. 45 Again on page 6 the same fact is 
stated even more clearly. There it is said that ' God took 
men of understanding from Aaron (i.e. from among the 
priests) and from Israel wise teachers (i.e. non-priestly 

15 The passage in the text A, p. i, lines 5 ff. , reads as follows: — 

~\bo -ivsmanj T3 arm irvni> Dwrn niso vhv aw jnn }»p3i 
jcnS is-iK ns btv5> nytao vrw jnns»i i'two nox^i a"ip T s ios 
nnijo vm an aw« qwjk 13 15m djijo rai vioix 3103 
iwtj tbw 3^3 13 arwjjD bx bx p^i ane>y aw "p* 1 O'ewra 

(1D131) 13i> 1T13 BSninij TIT fTTID Bni> ap^l- 'And at the end of the 
wrath, three hundred and ninety years after He had delivered them into 
the hand of Nebuchadnezzar, king of Babylon, He remembered them and 
made bud from Israel and Aaron a root of a plant to inherit His land and to 
rejoice in the good of His earth. And they meditated over their sin and 
they knew that they were guilty men and they were like the blind groping 
in the way twenty years. And God considered their deeds, for they sought 
Him with a perfect heart, and He raised for them a teacher of righteousness 
to make them walk in the way of His heart' (Translation, as given by 
Schechter). It is evident that the author in describing the origin of the 
Zadokite sect reviews the conditions that prevailed in Judea prior to 
the formation of this sect. The period of ' wrath ' or, as the parallel passage 
(p. 5) has it, ' the desolation of the land ', is the time of the wars between 
Syria and Egypt before Antiochus the Great finally acquired Palestine. 
It was after this period had come to an end, about three hundred and ninety 
years after God had given the people into the hand of Nebuchadnezzar 
(about 196 b. c, 390 after 586) that God raised up a plant from Israel and 
Aaron. ' Plant ' here is a designation for an assembly or Sanhedrin (comp. 
Genesis r., L1V, 6, pVtrOD ni ^B>K b&X VW, and Hullin 92 a, nmiS3 KTI1 

piruD ii>N nw nniv). 



MIDRASH AND MISHNAH — LAUTERBACH 49 

Israelitic teachers) and caused them to come together as an 
assembly (B$Wty. They dug the well . . . , that is the 
Torah \ 46 This means that the assembled priests and lay 
teachers together searched the Law of the fathers to find 
in it a way of prescribing for the religious needs of 
their time. 

The same tradition pertaining to the renewed activity 
of the teachers and the existence of a Sanhedrin composed 
of priests and lay teachers in the time of Antiochus, is also 
found underlying a report in the Mishnah. According to 
this report, the head of the Sanhedrin at that time was Anti- 
gonos of Soko, a lay teacher, and succeeding him were Jose 
ben Joezer of Zeredah and Jose ben Johanan of Jerusalem 
(Abot I, 3-4). Of the latter two, Jose ben Joezer, a pious 
priest, is said to have been the president and Jose ben 

We learn from this report that in that assembly or the reorganized 
Sanhedrin, where the nucleus was formed for the two parties, Sadducees 
and Pharisees, there also arose a third party or sect, composed both of 
priests and Israelites who differed from the two other groups, the Priest- 
Sadducees and the Israelite-Pharisees. This third group acknowledged the 
rights of the lay people to be like the priests, but would otherwise not 
follow the tendencies of these lay teachers who formed the nucleus of the 
Pharisaic party. This third group formed a special sect under a teacher 
of righteousness and emigrated to Damascus. 

We further learn from this report that for about twenty years there was 
harmony between the various elements in this new assembly and that they 
tried to find, a way of arranging the life of the community in accordance 
with the Law of God, as handed down to them from their fathers. 

<6 The passage on p. 6, line 2-3, reads as follows : 0*3133 pilKD np , "l 
DJJBPM DiD3n i>N-rt!»»1. The phrase D'DDn ^NIB" 1 !^ reminds one of 
the term ?K"ltJK , D3n ' Lay teachers of Israelitic descent ', which later on 
was the designation of the Pharisees, because these lay teachers in the 
reorganized Sanhedrin formed the nucleus of the Pharisaic party. See my 
Sadducees and Pharisees, in Studies in Jewish Literature issued in honour of 
Dr. K. Kohler, pp. 116 ff. The phrase D^tpE^ means 'he assembled 
them', like DJJri TIN 'ntM JW1, 1 Sam. 15. 4. ' 

VOL. VI. E 



50 THE JEWISH QUARTERLY REVIEW 

Jobanan, a lay teacher, the vice-president of the Sanhedrin 
Hagigah II, 2). Of course, these reports in the Mishnah, 
in the form in which we have them, are of a comparatively 
late date and cannot be considered as historical. 47 They 
form part of that artificial reconstruction of history, under- 
taken by the later teachers who aimed to establish the 
fiction of a continuous chain of tradition and the alleged 
uninterrupted leadership of the Pharisaic teachers through- 

47 It is very unlikely that Jose b. Joezer was president (KHM) of the 
Sanhedrin although he belonged to an influential aristocratic family and 
was a priest (ilJinMB* TDn, Hagigah III, 2). He and his colleague 
Jose b. Johanan probably were the leaders of that group of pious lay 
teachers in the Sanhedrin, the Hasidim, who were the forerunners of the 
Pharisees. This may be concluded from the report in 1 Mace. 7. 12-16, 
where we read as follows : 'Then did assemble unto Alcimus and Bacchides 
a company of Scribes to require justice. Now the Asideans (Hasidim) 
were the first among the children of Israel (i. e. non-priests) that sought 
peace of them.' These Hasidim who are here identified with the Scribes 
are also designated as mighty men of Israel (i. e. non-priests), even all 
such as were voluntarily devoted unto the Law (ibid., 2. 42). We learn 
from these references that, prior to the Maccabean uprising, there were 
already scribes who were not priests, that is, lay-teachers of Israelitic 
descent, who were mighty and influential in the community, otherwise they 
could not have assumed the authority to go to Alcimus to negotiate for 
peace. They evidently were of the same group of lay teachers in that 
reorganized Sanhedrin, who were the forerunners of the Pharisees. They 
were distinct from the other members of the Sanhedrin in that they were 
merely concerned with the religious liberty and were therefore willing 
to recognize Alcimus if they could obtain from him peace and religious 
freedom. Jose b. Joezer was among this group, and probably was their 
leader (see above, note 29). In the mind of the later Pharisaic teachers 
it was this group of the Hasidim in the Sanhedrin which was looked upon 
and considered as the Sanhedrin. Its leaders were considered as the real 
leaders of the whole Sanhedrin. Thus originated the tradition about the 
Zuggot as the heads of the Sanhedrin. For later tradition considers only 
those teachers who were of the Pharisees as legitimate members of the 
Sanhedrin, and the Sadducees who constituted the majority of the members 
and were the actual leaders of the Sanhedrin are regarded as intruders and 
usurpers. 



MIDRASH AND MISHNAH — LAUTERBACH 51 

out all the past history. Unhistorical as these reports may 
be, they certainly contain some kernel of truth. This 
truth consisted in the fact, known to them, that there was 
some authoritative assembly composed of priests and lay 
teachers, of which these men, Antigonos and the two 
Joses, were prominent members. This historical report, 
the later teachers elaborated to fit into their scheme. 
They ignored all the other members, probably even the 
real leaders of that Sanhedrin, and represented those 
teachers as the real leaders who were pious followers 
of the traditional law and who were so to speak the 
fathers of the Pharisaic party. However, whether Anti- 
gonos and Jose were really the heads of the Sanhedrin 
as tradition represents them, or merely prominent members, 
or perhaps merely the leaders of the more pious group in 
that Sanhedrin, the Hasidim, this much is sure : there was 
at that time an assembly or a Sanhedrin, composed of 
priests and lay teachers with official authority to arrange 
the religious affairs of the people. The members of this 
Sanhedrin took up the interrupted activity of the former 
teachers, the Soferim, and, like them, sought to teach and 
interpret the Law and to regulate the life of the people in 
accordance with the laws and traditions of the fathers. 
But in their attempt to harmonize the laws of the fathers 
with the life of their own times, they encountered some 
great difficulties. 

It is true, the teachers who were now members of the 
authoritative council or Sanhedrin, were in the possession 
of the Book of the Law, in the exact form in which it was 
transmitted to them by the Soferim. They also knew all 
the interpretation of the Soferim, as well as all the tradi- 
tional teachings and additional laws which the latter 

E 3 



52 THE JEWISH QUARTERLY REVIEW 

connected with or based on the written laws of the 
Pentateuch. But all the laws contained or indicated in 
the text of the Book together with all the traditional 
teachings given by the Soferim in connexion with the 
Book of the Law were not sufficient to meet the require- 
ments of the new situation. These laws did not provide 
answers for all the questions that arose, and could not 
furnish solutions for the new problems in the life of the 
people. For, all these new problems and questions were 
the result of new conditions of life now prevailing in Judea, 
conditions utterly different from those in the times of the 
Soferim. The problem then became, how to find in the 
old laws new rules and decisions for the questions and 
unprecedented cases that now arose. 

This difficulty was aggravated by the fact that during 
the seventy or eighty years of religious anarchy, many new 
practices had been gradually adopted by the people. In 
the course of time, these came to be considered as Jewish 
religious practices, and no distinction was made between 
them and older religious practices contained in the teachings 
of the Soferim and based on the traditions of the fathers. 
Again, the outlook of the people had broadened and their 
religious concepts had become somewhat modified during 
those years. Many an old law assumed a new and different 
meaning or was given a new application, not by the decree 
of an authoritative body of teachers, but by the general 
opinion of the people who had outgrown the older conception 
of that law. Many questions were decided during those 
years by the people themselves or by such rulers and leaders 
as they had. Such decisions, though not given by any 
religious authority and not derived from the written law, 
became, nevertheless, recognized rules and principles, re- 



MIDRASH AND MISHNAH — LAUTERBACH 53 

spected by the people as much as their other laws written 
or indicated in the Book. It was such new decisions and 
popular modifications of some laws, as well as the generally 
observed new customs and practices, that constituted a 
large part of the traditional laws and practices. These 
traditional laws naturally had no indication in the written 
Law and no basis in the teachings of the Soferim, because 
they developed after the period of the Soferim. 

The reorganized Sanhedrin (after 190) had to reckon 
with these new laws and customs, now considered as 
traditional because observed and practised by the people 
for a generation or more. They had to recognize them as 
part of the religious life of the people. But in order to be 
able to accept and teach them officially as part of the reli- 
gious Law, the members of the Sanhedrin had to find some 
authority for these new laws and customs. They had 
either to find for them some basis in the traditions and 
teachings of the Soferim, or to find proof for them by some 
new interpretation of the written Law. This, however, was 
not an easy task to perform. The present teachers, although 
members of an official body, like the Soferim of old, could 
not, like these Soferim, indicate new laws in the text by 
means of slight changes or additional signs, because the 
pliability of the text was gone. The text was now in 
a fixed form which was considered sacred, and no changes 
could be made in it. The simple methods of interpretation 
used by the Soferim were also inadequate for the needs of 
the present teachers. These simple methods could not 
furnish enough interpretations on which to base the new 
decisions needed for the times. Throughout the period of 
the Soferim the development of the interpretations of the 
Law kept pace with the development of the conditions of 



54 THE JEWISH QUARTERLY REVIEW 

life. But for the teachers of the reorganized Sanhedrin, 
these simple methods were insufficient because their de- 
velopment had been arrested for about eighty years. We 
have seen above that the development in the conditions of 
life after the Soferim, took place without a corresponding 
development in the teachings and interpretations of the 
Law. Labouring under such disadvantages the new San- 
hedrin found it very difficult to solve the problem of 
harmonizing the Law of the fathers with the life of the 
people. 

Having no reports concerning that time, we cannot 
trace the activity of the new Sanhedrin from its beginnings. 
We know only that it was organized after Judea had come 
under Syrian rule, that is, after 196 B.C. Some years must 
have passed before the above-mentioned difficulties were 
fully realized and plans proposed for their solution. It 
was probably not until the time of Antiochus Epiphanes 
that such definite plans were considered. 48 Different solu- 

<s From the report in the Zadokite Fragment we learn that for twenty 
years there was harmony among the various elements of that reorganized 
Sanhedrin and all sought God with a perfect heart and endeavoured to order 
their lives in accordance with His Law (see above, note 44), This means 
that before the year 175 B.C., that is, twenty years after 196 B.C., the date 
of the organization of that new Sanhedrin, the differences of opinion did 
not lead to an outspoken opposition between the different groups within 
that Sanhedrin. It was only after the year 175 B.C., that is, under the 
reign of Antiochus Epiphanes, that these differences of opinion became 
so marked as to characterize the different groups in that Sanhedrin as 
distinct from one another. This is also stated in the Assumptio Mosis 6. 2 
where we read as follows : ' And when the time of chastisement draws 
nigh and vengeance arises through the kings who share in their guilt and 
punish them, they themselves also shall be divided as to the truth.' This 
refers to the time before the Maccabean revolt, and the king through whom 
they will be punished can only refer to Antiochus Epiphanes. We are 
accordingly told that in the time of Antiochus Epiphanes, after the year 
175 B.C., there was a division among the Jews themselves in regard to 



MIDRASH AND MISHNAH — LAUTERBACH 55 

tions were offered by the various members of the Sanhedrin. 
This difference of opinion in regard to the solution of this 
problem caused a breach in that Sanhedrin which ulti- 
mately resulted in a division into parties, namely, Pharisees 
and Sadducees. This breach in the unanimity of opinion 
was effected during the time of Jose ben Joezer and Jose 
ben Johanan, the successors of Antigonos, and this is 
possibly the historic fact upon which is based the tradition 
that ascribes the origin of the two parties, Pharisees and 
Sadducees to this particular time. 49 

The priestly group in that assembly, whose exclusive 
privilege it had formerly been to give instruction in religious 
matters, and who even now participated prominently in the 

the truth, that is, as regards their religious laws. The two groups men- 
tioned there are those who later on formed the two parties, Sadducees and 
Pharisees. Compare also the Book of Enoch 90. 6, where these two 
groups, the nucleus of the two parties, are referred to as appearing first 
at that time. This also agrees with the report in 2 Maccabees, that in the 
days of Onias III, before Antiochus Epiphanes, the laws were kept very 
strictly owing to the goodliness of Onias (3. 1) who was a zealot for the 
Law (4. a). 

49 The legendary story in Abot d. R. Nathan (version A, ch. V, version B, 
ch. X, Schechter, p. 26) contains a kernel of truth in that it dates back the 
origin of the conflict between the two parties to the time of the pupils of 
Antigonos. All that the story really tells us is that among the disciples 
or successors of Antigonos there were already great differences of opinion 
which divided them into two groups. Only one must keep in mind that 
the first disagreement was not yet a real division. The complete separation 
of the two groups and their formation into two distinct parties took place 
later on in the time of John Hyrcanus (see my Sadducees and Pharisees, p. 8, 
note 2). This seems also to be indicated in the story of Abot d. R. Nathan, 
where the statement |i"l? IBTBI 137H ' they separated ' refers to the pupils 
of the successors of Antigonos. This would refer to the time of Joshua 
b. Perahiah, the successor of Jose b. Joezer, who was the pupil of Antigonos. 
This explanation will answer the objections raised by Halevi {Doroth 
Harishonim, I c, VIII, 169 ff.) against putting the date of the origin of the 
Sadducean party at the time of the pupils of Antigonos. 



56 THE JEWISH QUARTERLY REVIEW 

administration of the communal and religious affairs, 50 had 
a simple solution for the problem in conformity with the 
maintenance of their authority. In their opinion, the main 
thing was to observe the laws of the fathers as contained in 
the Book of the Law, because the people had pledged 
themselves, by oath, in the time of Ezra, to do so. If 
changed conditions required additional laws and new regu- 
lations, the priests and rulers were competent to decree 
them according to authority given to them in Deut. 17. 
8-13. They maintained that the priestly rulers of former 
generations had always exercised this authority. For this 
reason they did not deem it necessary that all the new laws 
and regulations needed for the changed conditions of life 
should be found indicated in the Book of the Law or based 
on the teachings of former generations. Thus the priestly 
members of that assembly, the future Sadducees, did not 
feel the need of developing the old laws, or of forcing 
interpretations into the written Law. They declared the 
written Law with all the traditional interpretations of the 
Soferim absolutely binding. However, as rulers of the 
people, they claimed the right to decide by virtue of their 
own authority those new questions for which the laws of 
the fathers did not provide. 

This apparently simple solution offered by the priestly 
group in the Sanhedrin did not find favour with the lay 

50 Even during the period, when the priests did not carry on any official 
activity as authoritative teachers, they were still not without influence and 
authority. Their families still possessed political power, and some of them 
were influential leaders. In the Temple they had an undisputed authority 
(see Schurer, Geschichte, 114, pp. 279-80). As priests and leaders they had 
thus become accustomed to exercise authority independently of the Law. 
Their influence in the last few decades was not due to their being teachers 
of the Law but to the fact that they formed an influential aristocracy and 
had control over the Temple and its service. 



MIDRASH AND MISHNAH — LAUTERBACH 57 

members of that body. These lay members who had 
never had a share in ruling the people, now, because of 
their knowledge of the Law, claimed equal authority with 
the priests. They refused to recognize the authority of 
the priests as a class, and, inasmuch as many of the priests 
had proven unfaithful guardians of the Law, they would not 
entrust to them the regulation of the religious life of the 
people. In the opinion of these democratic lay teachers, 
an opinion also shared by some pious priests, the right to 
decide religious questions given in Deut. 17. off. to the 
priests was not given to them as a family privilege merely 
because they were priests, but because they were teachers 
of the Law, and only as long as they were teachers 
of the Law. The same right was equally granted to the 
teachers of the Law who were not priests. Both priests 
and lay teachers had no other authority except that of 
speaking in the name of the Law. They had merely the 
right of interpreting the Law and of deciding questions 
according to their understanding of the Law. They had 
absolutely no authority to issue new laws or decide religious 
questions according to principles other than those laid 
down in the Law, for the Law alone was to be the 
authority of the Jewish people. The entire life of the 
people in all its possible situations should be guided and 
controlled by no other authority than the Law as inter- 
preted by the teachers, whether priest or layman. 51 

Acknowledging the Law of the fathers to be the sole 
authority, these lay teachers now had to find all the 
decisions and rules necessary for the practical life of their 
time contained or implied in the Law. They also had to 

61 For further details about the attitude of each group towards the Law 
see ray Sadducees and Pharisees. 



58 THE JEWISH QUARTERLY REVIEW 

devise methods for connecting with the Law all those new 
decisions and customs which were now universally observed 
by the people, thus making them appear as part of the 
laws of the fathers. 

There were two methods by which they could accom- 
plish this result. The one was to expand the Midrash of 
the Soferim, that is to develop the method of interpretation 
used by the Soferim and to invent new exegetical rules, by 
means of which they could derive new decisions from the 
written Law, and find sanction therein for various accepted 
practices. The other method was to enlarge the definition 
of the term ' Law of the Fathers ', so as to mean more than 
merely the written Book of the Law with all its possible 
interpretations. In other words, it meant a declaration of 
the belief that not all the laws of the fathers were handed 
down in the written words of the Book, but that some 
religious laws of the fathers were transmitted orally, inde- 
pendently of any connexion with the Book. Either method, 
to an extent, meant a departure from the old, traditional 
point of view, a course which the teachers naturally hesitated 
to take. In spite of considerable reluctance, the teachers 
gradually were led to make use of both of these methods. 
At first they attempted to expand the Midrash, the form 
which they were accustomed to use. They developed new 
methods of interpretation by which they could derive from 
the Law new decisions for current cases and even justify 
some of the existing practices and find scriptural support 
for some decisions which had originally been given without 
reference to the written Law. However, the. enlarged use of 
new and more developed Midrash methods was not sufficient 
to secure proofs for all necessary decisions and find scriptural 
authority for all existing laws and accepted practices. 



MIDRASH AND MISHNAH — LAUTERBACH 59. 

There were many practices, generally accepted by the 
people as part of their religious life, for which even the 
developed Midrash with its new rules could find no support 
or proof in the written Law. This was especially the case 
with such decisions and practices as originated in the time 
after the Soferim. In the opinion of the teachers, the 
origin of these laws and customs was Jewish. They 
reasoned thus : It is hardly possible that foreign customs 
and non-Jewish laws should have met with such universal 
acceptance. The total absence of objection on the part 
of the people to such customs vouched for their Jewish origin, 
in the opinion of the teachers. Accordingly, the teachers 
themselves came to believe that such generally recognized 
laws and practices must have been old traditional laws and 
practices accepted by the fathers and transmitted to fol- 
lowing generations in addition to the written Law. Such 
a belief would naturally free the teachers from the necessity 
of finding scriptural proof for all the new practices. They 
could teach them as traditional Halakot not dependent 
upon the written Law, that is to say — in the Mishnah-form. 

However, the theory of an authoritative traditional law 
(which might be taught independently of the Scriptures) 
was altogether too new to be unhesitatingly accepted. 
Although it may be safely assumed that the fathers of the 
Pharisaic party did not originally formulate the theory of 
an oral law in the same terms and with the same boldness 
with which it was proclaimed by the later Pharisaic teachers, 
still even in its original form the theory was too startling 
and novel to be unconditionally accepted. Even those 
teachers who later became the advocates of the so-called 
oral law could not at first become easily reconciled to the 
idea that some laws had been handed down by tradition, 



60 THE JEWISH QUARTERLY REVIEW 

side by side with the written law and equal in authority to 
the latter. Accordingly, these teachers applied the term 
' Traditional Law ' only to such practices and rules, whose 
religious authority was unquestioned and whose universal 
acceptance went back to the time before the memory of 
living men. 62 The absence of objection to any such law or 
custom pointed in itself to an old Jewish tradition as its 
source, so that the teachers were justified in believing it to 
be a genuinely traditional law. But even in the case of 
such generally accepted rules and practices, it was only as 
a last resort that the teachers would present them inde- 
pendently as traditional laws. They preferred to resort to 
the developed methods of interpretation, which, although 
also new and also a departure from the older Midrash, 
were yet not so startling as the idea of declaring a new 
source of authority for religious laws in addition to the 
written Torah. Wherever there was the remotest possi- 
bility of doing so, they would seek by means of new 
hermeneutical rules to find in the words of the Torah 
support for these traditional laws. They could thus 
continue to teach them in connexion with the written Law, 
that is in the Midrash-form, as of old. Only in a very few 
cases, when it was absolutely impossible to establish by 
means of the Midrash any connexion between the tradi- 
tional practice and the written Law, would they teach the 
same as independent traditional Halakah, that is to say, in 

62 It might perhaps be said that the theory grew and forced itself upon 
the teachers without any intention on their part to formulate it. They 
could not ignore certain practices, considered by the people to be religious. 
They had to teach them. Since they could not trace their origin, they 
assumed that they were traditions of the fathers. It was but one step, 
almost an unconscious one, from this to the declaration, that the fathers 
received their traditional laws together with the written Law. 



MIDRASH AND MISHNAH — LAUTERBACH 6l 

the Mishnah-form. 63 This, no doubt, was the very first use 
made of the Mishnah-form. 

However, in this first introduction of the new form with 
its very limited use lay the possibility of a much wider and 
more general application. Once it was conceded that, 
when absolutely necessary, a form of teaching other than 
the Midrash could be used, it became merely a question 
of what to consider a case of necessity. This varied with 
the individual teacher. To some teachers, the Mishnah- 
form appealed even where the Midrash-form was possible, 
but not acceptable, as, for instance, when the interpretation 
of Scriptures offered in support of the decision was not 
approved. For even the developed Midrash methods and 
the new rules of interpretation were not all of them accepted 
by all the teachers. Some teachers would go further than 
the others. It often happened that rules and interpretations 
offered by one teacher would be rejected by another. We 
may presume that it often happened that one teacher 
would try by means of a new interpretation to support 
a decision from Scripture, while other teachers, although 
rejecting that particular interpretation, would accept the 
decision, either because of the authority of that teacher 
or because it was accepted by the majority. These other 
teachers of course could not teach such a decision in the 
Midrash-form, because they rejected the particular Midrash 
furnished for the decision. They were compelled to teach 
such a decision as an abstract Halakah, that is, in the 
Mishnah-form. Fortunately, we have positive proof that 
such instances did occur. This actually happened in the 

88 Accordingly the Midrash always remained the main form of teaching 
and the Mishnah only gradually came to be used alongside of it (see above, 
notes 8 and 22). 



62 THE JEWISH QUARTERLY REVIEW 

case of the oldest Halakot preserved to us in the Mishnah- 
form, namely, the Halakot of Jose ben Joezer. As will 
presently be shown, these decisions were taught by the 
teachers as independent Halakot in the name of Jose, 
because the interpretations given by Jose in their support 
were not approved by the other teachers. To prove that 
this was the case, we have to examine these Halakot in 
order to ascertain their exact meaning, also Jose's share 
in them, and the attitude of the other teachers towards 
them. 

These Halakot are found in the Mishnah, EduyotVIII,4, 
and they read as follows : 

npvo bw pT xintj> nx»p b^a by mnv sj»k -\iyv p w ryn 
,w\w w rfb npi .axriDD wvoa npni pn (pj»s«i) ntdbo u 

Jose ben Joezer of Zeredah stated regarding the Ayyal 
Kamsa [a certain species of locust] that it is to be considered 
as clean (i.e. permitted to be eaten), and regarding the 
liquids of the slaughtering place, that they are to be 
considered as clean, and that [only] that which has come 
into direct contact with a dead body becomes unclean. And 
they [the other teachers] called him ' Jose the Permitter '. 
There are a few difficulties in these Halakot which we must 
point out before we can get at their full meaning and 
demonstrate their bearing upon our theory. 

The first strange feature in these Halakot is their 

language. They are given in Aramaic and not in Hebrew, 

in which all other Halakot of the Mishnah are given. 54 

64 There is no other halakic decision in the Mishnah expressed in the 
Aramaic language. The Aramaic saying of Hillel (Abot I, 13) was either 
uttered by Hillel while he was still in Babylon, or because it was addressed 
to the people as a popular saying it was given in Aramaic which was then 
already the language of the people. The latter reason would also account 
for the other two sayings in Abot V, 22-3 given in the Aramaic language. 



MIDRASH AND MISHNAH — LAUTERBACH 63 

Weiss tries to account for the Aramaic language of these 
Halakot by assuming that they were remnants of the 
teachings and decisions of the Soferim {Dor, I, p. 66), who 
according to his assumption delivered all their teachings in 
the Aramaic language 56 (Introduction to Mekilta, p. iv). 
Jose, according to Weiss, merely attested to these decisions, 
but did not originate them. This explanation, however, 
rests upon false premises. In the first place, if the Aramaic 
of these Halakot was due to their being decisions of the 
Soferim, we ought to find many more Halakot in the 
Mishnah in the Aramaic language. For there are certainly 
more teachings of the Soferim preserved in our Mishnah. 
Weiss himself points out {Dor, I, p. 65) many Mishnahs 
which, in his opinion, are very old and originated in the 

65 It is surprising to find that Weiss not only contradicts himself, but 
also reasons in a circle. He himself mentions many proofs for assuming 
that Hebrew was used by the majority of the people and by the Soferim. 
He has absolutely no reason for assuming that the Soferim taught in 
Aramaic. However, just because these three decisions of Jose are ex- 
pressed in Aramaic, and because in his opinion Jose received these decisions 
in their form and in their language from the Soferim, he concludes that 
the Soferim must have taught in Aramaic. And as a proof for his opinion 
that these decisions are from the Soferim he can only cite the fact that they 
are expressed in Aramaic, which, in his opinion, was the language of the 
Soferim. Weiss here follows Krochmal who assumes (in More Nebuke 
Hazeman, X, pp. 52-3) that the language of the people in the time of 
Ezra was Aramaic. Both Krochmal and Weiss seem to have been misled 
by the haggadic interpretation of the passage in Neh. 8. 8, given in b. Nedarim 
37b, QUID nt KH1SD, which they understood to refer to an Aramaic 
translation. Following this Haggadah, they assume that as early as the 
time of Ezra the Torah had been translated into the Aramaic (see Krochmal, 
/. c, and Weiss, Dor, I, p. 54 ; compare also Friedmann, Onkelos and Akylas, 
Wien, 1896, p. 58). Hence they argue, if an Aramaic translation was 
necessary, then the language of the people must have been Aramaic. But 
this is a mistake. There was no translation of the Torah in the time of 
Ezra, as the people spoke Hebrew, the language in which the Torah was 
written. 



64 THE JEWISH QUARTERLY REVIEW 

time of the Soferim. Why is it then that this one Soferic 
saying transmitted by Jose has been retained in the original 
language, the Aramaic, while all the other teachings of the 
Soferim, which no doubt are preserved in our Mishnah, 
have been translated into the later Hebrew? 56 Further- 
more, the whole premise that the Soferim gave their teach- 
ings in Aramaic, declared by Weiss (Introduction to the 
Mekilta, ibid.) to be beyond doubt, is absolutely false. All 
indications point to the fact that the Soferim gave their 
teachings in Hebrew, the language which the people spoke. 
The exiles who returned from Babylon did not bring with 
them the Aramaic language. They spoke Hebrew, as is 
evident from Neh. 13. 24, where Nehemiah complains that 
some of the children were unable to speak the Jewish 
language, that is Hebrew. It certainly cannot be assumed 
that the Soferim, as teachers of the people, would set the 
bad example of using any language other than their own. 57 
The Aramaic language came into use among the people in 
Palestine at a much later date 58 (see Schurer, Geschichte, 

86 According to Weiss, then, we would have to account for another 
radical change in the method of teaching, namely, the change in the 
language, the medium of instruction, from the Aramaic to the later Hebrew, 
and one would have to fix the time and find the reason for the change. 

57 Weiss himself says {Dor, I, p. 54) that Nehemiah and the earlier 
Soferim endeavoured to keep up the Hebrew, and only some of the people 
did not understand Hebrew perfectly. But if so, why did the Soferim give 
all their teachings in Aramaic ? 

58 Schurer points out that the Aramaic of Palestine could not have been 
brought along by the returning exiles, as the Aramaic spoken in Palestine 
was the Western Aramaic and not the Eastern Aramaic spoken in Babylon. 
Friedmann {op. cit., p. 57) assumes that the language of the returning exiles 
was the Babylonian Aramaic, but that in the course of time this language 
was changed and influenced by the Aramaic of Palestine. This assumption 
is without proof. The proofs cited by Friedmann for the use of the Aramaic 
language do not prove anything with regard to the time of the Soferim. 



MIDRASH AND MISHNAH — LAUTERBACH 65 

II 4 , pp. 33-6.J Even after the Aramaic language had 
become the language of the people, Hebrew remained the 
language of the school and the teachers, the D'DSn pe^. 
For this reason we have all the Halakot in the tannaitic 
literature, such as Mishnah and halakic Midrashim, given 
in Hebrew. 

Aside from all these considerations as to the language 
of the Soferim, it is altogether wrong to connect these three 
Halakot with the Soferim. They are not Halakot of the 
Soferim, which Jose merely transmitted and attested to, 
they are decisions which originated with Jose himself and 
for which he offered reasons and scriptural proofs. And 
this brings us to the discussion of the second difficulty in 
our Mishnah, namely, the introductory term Tj?n. This 
term Tjjn means literally to testify, to state as a witness 
what one knows or has seen or heard. Some scholars have 
understood the term Ttfn in this Mishnah in this very 
sense, and have declared it to mean that Jose merely 
testified that these decisions were older traditional laws 
and practices. As we have seen above, Weiss assumed 
that they were decisions of the Soferim for the genuineness 
of which Jose vouched. But it is absolutely incorrect to 
take the term Tyn here in the sense that Jose merely 
' testified ' to older traditional laws and decisions. As far 

The Aramaic became the language of the Jews in Palestine in the first half 
of the second century B. c. The proofs adduced by Friedmann (/. c, p. 58) 
refer to a much later date than the second century B. c. Saadya Gaon, in 
the preface to his Sefer Ha-Iggaron (Harkavy, Zikron la-Rishonim,V, p. 54), 
states that about three years before the rule of Alexander in Palestine the 
Jews began to neglect Hebrew and adapted the language of the other 
nations in the land (i. e. Aramaic). While his date is based upon a wrong 
chronology (see IV), he certainly is correct in his statement as to the fact 
that the returning exiles spoke Hebrew and that it was only after many 
years that they began to speak Aramaic. 

VOL. VI. F 



66 THE JEWISH QUARTERLY REVIEW 

as we know, the method of procedure followed by the 
teachers of the Halakah in receiving a teacher's testimony 
in regard to some rule or practice was to consider the 
testimony alone. They either decided according to it, or 
if for some reason they would not do so, they stated that 
reason. Without reflecting upon the testifying teacher, 
they would seek to invalidate the testimony or to deny 
its bearing upon the case under discussion (compare Eduyot 
II, 2 ; VIII, 3 ; Sanhedrin VII, a ; and Tosefta Sanhedrin 
IX, n). Nowhere do we find that they hold the testi- 
fying teacher responsible for the decision which he reports. 59 

69 The case of Akabiah b. Mahalalel (M. Eduyot V, 6) whom the other 
teachers held responsible for the decisions which he stated- before them, 
cannot be cited as an instance against this statement. It is doubtful, to say 
the least, whether the four decisions of Akabiah, although likewise introduced 
with the term T'J!n, were old traditional Halakot to which he merely 
testified. 

The controversy between Akabiah and the other teachers is shrouded 
in mystery. The later teachers, for reasons best known to themselves, 
did not care to report about it in detail. They acknowledged only with 
reluctance that there were disputes among the older teachers about the 
traditional laws, that such an eminent teacher as Akabiah protested against 
what was accepted by others as traditional laws, and that harsh means 
were used to silence such protests. The knowledge of these facts would 
reflect unfavourably upon the validity of the traditional law. For this 
reason one of the later teachers also denied the fact that Akabiah was put 
under ban (ibid.). From the meagre reports preserved in our sources it is 
difficult to obtain a clear account of the nature of the dispute and of what 
actually took place between Akabiah and the other teachers. It is, however, 
very probable that Akabiah was the author of these four decisions, and that 
the term TVH in this case is likewise to be taken in the sense of 'stated ', 
' declared ', and not ' testified '. This is apparent from the very demand 
to retract which the other teachers made. They could not have asked him 
to take back his testimony, but they could ask him to change his opinion. 
From the expression used in this demand to retract, D'-QT flWlND ~\2 "Wl 
"ID1K n^nC, it is also evident that Akabiah was his own authority in these 
four decisions, that he was the one who said these things, and not that he 
merely testified that others said them. Again, in his advice to his son to 



MIDRASH AND MISHNAH — LAUTERBACH 67 

Here, in the case of Jose, however, we see that they called Jose 
S01C 'the Permitter', thus making Jose responsible for the 
decisions. If Jose had been merely testifying to the decisions 
of former teachers, then those former teachers, the Soferim 
or whoever they may have been, were the ones who 
' permitted ', and not Jose. Why, then, call Jose W\v ' the 
Permitter ' ? 

This is even more strange since we do not hear that the 
other teachers gave any argument against his decisions 
and, as we shall see, they even accepted them nwn? 'as 
a norm of practice \ 60 It is therefore evident that these 
Halakot, though introduced with the phrase W Tjjn, were 

follow the majority, Akabiah uses the words TITf! '"13T TOI? 2D1D 
DOnDn i"0"D VH1N71 ' It is better to abandon the opinion of an individual 
and to hold to the opinion of the many' (ibid., 7). From these words it is 
also evident that the decisions of Akabiah were the opinion of an individual 
teacher (i. e. himself), and not the opinion of the majority of the teachers 
from whom Akabiah received them. We must therefore assume that the 

words injnossa Trray ^s . . . virion *dd »nsot? •ok («6«/. 7), which 

are put into Akabiah's mouth, are a later addition. They form an attempt 
on the part of a later teacher to minimize the sharpness of the conflict 
between Akabiah and his contemporaries. Its purpose was to make it 
appear as if there had always been perfect harmony among the teachers, 
and that only in this case each had a different tradition which he had to 
follow. This, however, is a very poor attempt, for it does not explain how 
there could have been different traditions. It only shifts the date of the 
conflict of opinions from the time of Akabiah and his colleagues to the time 
of their teachers and predecessors. 

It is also possible that the same later author who thus attempted to 
exonerate Akabiah added the word TJln , to introduce Akabiah's decision, 
thus representing them as being based upon an older tradition which 
Akabiah had. 

60 Levy erroneously states (Osar Nehmad, III, pp. 29-30) that Jose's 
decisions were ignored by the other teachers. From the talmudic discussion 
Pesahim 16 a (comp. also Maimonides, Yad. Tum'at Oklin, X, 16) and 
Abodah zarah 37 a b it is evident that the decisions of Jose were accepted 
by the other teachers and made the norm for practice, n3/fv. 

F 2 



68 THE JEWISH QUARTERLY REVIEW 

not older traditional laws transmitted by Jose as a mere 
witness, but Jose's own teachings. He was the one who 
' permitted ', and he deserved the name Wis?. This is 
further confirmed by the discussions of the Amoraim in 
the Talmud who try to explain these decisions. Rab and 
Samuel in attempting to give a reason for one decision of 
Jose's, use the word "DDp ' he (Jose) held ', or ' was of the 
opinion'. And when the reason for another decision is 
asked, the phrase 'J^op WD3 ' in what do they (Jose and 
his opponent or opponents) differ' is used (Abodah zarah 
37 a, b). Again, when R. Papa ventured to say in regard 
to one of the decisions that it was an old traditional law, 
ni> 'nm sna^n, he was promptly refuted (Pesahim 17 b). 
Thus we see that in the talmudic discussions about these 
decisions they are taken as Jose's own teachings and not as 
older traditional laws. 

This correct interpretation removes all the difficulties 
from our Mishnah. The term T!in is to be taken here in 
the sense of 'declared', or 'stated'. The Aramaic in which 
these decisions are expressed is to be accounted for, not by 
their alleged origin in the early days of the Soferim, but 
rather by the comparatively late date at which they origi- 
nated. It is probably also due to the peculiar circumstances 
which gave them their present form. These decisions, as 
we have them, are not preserved to us in Jose's own words, 
nor in the form in which he gave them. Jose gave these 
decisions in Hebrew and in Midrash-form. He taught them 
in connexion with the several Scriptural passages on which 
he based the decisions. The teachers, however, who trans- 
mitted these decisions, for reasons of their own (to be stated 
below), detached these decisions from their scriptural bases 
and expressed them in the Aramaic language. That Jose 



MIDRASH AND MISHNAH — LAUTERBACH 69 

had scriptural proofs for his decisions, is evidenced by the 
fact that the Amoraim in the Talmud endeavour to find 
these proofs or reasons. Evidently the Amoraim were 
convinced that some scriptural proofs did underlie these 
decisions, although not mentioned by the teachers who 
transmitted them. By following the Amoraim, whose 
analysis of these Halakot probably echoes older tradition, 
we will be able to find the midrashic proofs given by Jose 
in support of his decisions. 

In the case of one decision the midrashic arguments of 
Jose and his opponents have fortunately been preserved, 
namely, in the case of the third decision which is anpHi 
3NfiDD Nn'oa ' one who touches a corpse becomes unclean '. 
We must first arrive at the correct meaning of the decision. 
This decision does not mean simply that one who touches 
a corpse becomes unclean, for this is expressly stated in the 
Bible in regard to a human corpse (Num. 19. 11) as well as 
in regard to the carcase of an animal (Lev. 11. 37 and 29) 
or a reptile (ibid., 31). Furthermore, Jose is called ' the 
Permitter ', evidently because in all three decisions he 
permits things that were formerly considered forbidden. 
He, therefore, could not mean to teach us, in this last 
decision, concerning what becomes unclean and therefore 
forbidden. We arrive at the correct meaning of this 
decision by emphasizing the word WVD3 61 and interpreting 

61 Frankel (Hodegetica, p. 32) explains the decision of Jose to mean 
that Jose decided that one who has come into direct contact with a corpse 
becomes unclean but one degree less than the corpse itself, i. e. he becomes 
an nNDIOn 3N and not an HNDIBH TTOK '3N. Frankel bases his ex- 
planation on the expression 3NT1DD ' becomes unclean ', since it is not said 
2NDD, which could mean also ' he makes unclean '. But this explanation 
is wrong. In the first place, if the JV32 JUU becomes only an flNDlCD 3K 
he could still make others unclean, and thus be a 3KDD and not merely a 



70 THE JEWISH QUARTERLY REVIEW 

it to mean ' [only] he who touches a dead body ' (of a 
human being or an animal or a reptile) becomes unclean ', 
but one who touches a thing or person that has itself 
become unclean by contact with a corpse (i.e. anpna 3npn) 6a 
does not become unclean. This interpretation of Jose's 
third decision is given in the Talmud (Abodah zarah 37 b) 
and is correct despite the objections raised by Raba. As 
stated correctly in the Talmud (ibid.), the other teachers 
before and during the time of Jose were of the opinion that 

3NDDD. Secondly, as Weiss {Dor, I, p. ioo, note) pointed out, the reading 
3XDDD is not genuine, some editions having indeed 3XDD. Moreover, 
3NDD does not mean 'makes unclean', but simply 'is unclean'. Jose's 
decision probably was that one can become unclean only by direct contact 
with a corpse, the emphasis being on KTVQ3. If, however, one touches 
a thing or another person that had become unclean by contact with a corpse, 
he does not become unclean, because he did not come in direct contact 
with the corpse. 

? 2 The later talmudic teachers seek to harmonize Jose's decision with 
the later teachings of the Halakah. They therefore modify the meaning 
of the term 3Tp*13 3")pH, and explain it so as to agree with the later 
teachings of the accepted Halakah. But the original meaning of the term 
a^'IS SIp'T, which is apparently identical with the phrase DTO MJ 
TTIKDE JJJD3 in Sifra, was altogether different from the meaning given 
to it in the talmudic discussion. To harmonize Jose's decision with the 
later teachings of the Halakah, one could interpret it to mean that only 
certain kinds of ^p ,- 13 2"lp , T are clean. That is to say, Jose declared 
that not everything that has been in contact with a corpse can make 
a person that touches it unclean. Jose, then, meant to exclude earth, 
stone, and wood. His decision accordingly was directed against an older 
Halakah which declared that one who touches wood, stone, or earth that 
has become defiled by contact with a corpse, becomes unclean. Such an 
old Halakah seems to be expressed in the ' Fragments of a Zadokite Work ' 
(Schechter, Documents of Jewish Sectaries, vol. I, p. ia, lines 15-17). Compare, 
however, Ginzberg's ingenious explanation of this passage in the Monats- 
sckrift, 191a, pp. 560-61). It seems, however, more probable that Jose 
declared every kind of 3TpH3 3^1 clean, even a person who touches 
another person who had become defiled by contact with a corpse. Jose, 
then, is against the later teachings of the Halakah that a ]"ID VtCO becomes 
an nKOlBn 3K and can make others unclean. See below, note 64. 



MIDRASH AND MISHNAH — LAUTERBACH 7r 

3npm 3ipn, one who touches a person who has become 
unclean by contact with a corpse, also becomes unclean, 
Nn^nwro, according to the Law. They must have derived 
their opinion either from a literal interpretation of the 
passage in Num. 19. 23, NOD' soon 13 j»< ntw i>3, as stated 
in the Talmud (ibid.) or, what is more likely, from the 
passage in Lev. 5. 2, NOB ~on S>33 wn ne>N CS3 IN, which 
literally means one who touches any object that is unclean. 
This apparently includes one who touches an object which 
has become unclean through contact with a corpse. This 
seems to me to have been the scriptural basis for their 
theory. But Jose interpreted this scriptural passage differ- 
ently, so that he could give his decision, permitting a 
anpna anpn, and declaring such a one as clean. 

Indeed, we find these two opposing views preserved in 
Sifra, Hobah, XII, ed. Weiss 23 d. There we read as follows : 
bnoiN vn ttWN-in twptn .noo nan ba yan -i3>n pm in 
rta:o irn rtaua b"r\ a«n Nit hindd woa dik yn dn i^sn i>i3» 
riNDion ax jw nan tw riNDicn dun one' pnvo tbx no nona 
'Or if a person touches any unclean thing ' (Lev. 5. 3). 
The former teachers said: 'One might argue [from the 
expression " any unclean thing "] that even if a person has 
touched anything that had come into contact with unclean 
things, he should also be [considered unclean and conse- 
quently] subject to the law mentioned in this passage. 
The scriptural text teaches us, therefore, [by specifically 
mentioning] "whether it be a carcase of an unclean beast, or 
a carcase of unclean cattle, or the carcase of unclean creeping 
things" that only these specific objects which are original 
causes of uncleanness [can by their contact make a man 
unclean], but it excludes anything else which is not an 
original cause of uncleanness.' The term blSP ' one might 



72 THE JEWISH QUARTERLY REVIEW 

argue', points to an actual opinion held by some people, 
which the Midrash seeks to refute. As the view of the 
O'JlB'tnn copr here expressed is identical with the view of 
Jose, 63 viz.: that only tuvoa 3"ipH becomes unclean, the 
possible opinion introduced by bw refers to the view 
actually held by the teachers before Jose, or by those who 
disputed with him. We can, therefore, ascertain the new 
method used by Jose from the interpretation given in Sifra 
in the name of the D'oitwin D'ipr. This interpretation says 
that the meaning of the general term kob nm 733 is defined 
and limited by the following special terms irn non3 n?3J3 
pc IN , so as to include only the latter or such as are exactly 
like them. Accordingly we have in this instance for the 
first time the application of the rule of vbx 7733 pN DiB1 773 
cnsac no. And if we include the passage pirvpD 17N no in 
the original Midrash, which however is doubtful, 04 Jose or 

6 ' The identity of Jose's decision with the one quoted in Sifra in the 
name of the D'JHPtnn D'Jpt is also assumed by Professor I. Levy as quoted 
by S. Horowitz in Sifre Zutta, Breslau, 1910, p. 7, note 5. 

M It seems to me that the passage nSDIOn DUN {ilC JHrTPD 17N no 
is not of the original Midrash of the D'ilBtOfl D'Jpl, but a later addition. 
For, if it had been a part of the Midrash of the older teachers, then R. Akiba's 
Midrash which follows it would not have added anything and would have 
been entirely superfluous. The original Midrash of the older teachers 
closed with the words pC T17333 . • • 7*11. The older teachers inter- 
preted this scriptural passage as a 01S1 773, to mean only what is 
expressly mentioned in the special term B"lB3t? no K7K 7733 }»N. They 
excluded even nKOIBn T113N. To this R. Akiba added another Midrash 
according to which only what is not an DKDIQr) 3K is excluded. If, 
however, we include the passage nKDIBM HON pB» pnVD 1?N no in 
the original Midrash of the older teachers, we must assume that the term 
nNDIOn ni3N is used by them in a narrow sense to designate ' the original 
sources of uncleanness ', and not in the technical sense in which it is used 
usually to designate a certain degree of uncleanness (see Horowitz, 
op. cit, p. 8). 

That the D'JIB'tnn D'jpt excluded even so-called ilNOIBn HON is 



MIDRASH AND MISHNAH — LAUTERBACH 73 

the DWJon D'Op? must have considered the following passage 
D1K nsDlD 5>aa yy -it5'N IK as another Wo and formulated 
the rule oisn pjo n^n p nns »x Wai tnai Wo, and accord- 
ingly included other ntwion max which are like WVD. 

From a comparison of the explanation given to Jose's 
first decision in Abodah zarah 37 a with Hullin 66 a we 
learn that the decision declaring KXOp b'X as clean was 
reached by Jose also by means of applying the rule 
Woi Dial Wo to include Bnan pjo (see Rashi Ab. zarah, 
ad loc, and Tosfot Yomtob to Eduyot VII, 8). In regard 
to the decision about the XTODD 'a npt^o, it is hard to find 
out by what means Jose derived this from the Scriptures, 
as we are not quite sure as to the exact meaning of this 
decision. Even the later Talmudic teachers held different 
opinions regarding its meaning. According to Rab, Jose's 
decision declared these liquids altogether clean and not 
subject to defilement, two pi, while according to Samuel 
the decision was merely that these liquids cannot com- 
municate to others their defilement, but in themselves may 
become defiled, DnriN riKDID Noota pn (see Pesahim 17 a). 
Rab's explanation seems, however, to be more plausible 
and warranted by the plain sense of the word pT which 
means, simply, CDD pi. In this case we may safely assume 
that Jose arrived at this decision also by means of the 

conceded even by Rabed in his commentary on Sifra, ad loc. (This shows 
that he felt the difficulty of finding a difference between their Midrash and 
the Midrash of R. Akiba.) Rabed, however, assumes that the older teachers 
decided this only with regard to punishment for entering the sanctuary in 
such a state of uncleanness, BHpD DNO bll Dn^J? p3"n J*>X1. Levy, as 
quoted by Horowitz, follows Rabed herein. But it is very unlikely that 
the older teachers made such a distinction. If a person was considered 
unclean he would have been punished for entering the sanctuary in his 
state of uncleanness. If he was not to be punished for entering the 
sanctuary, that meant he was not at all unclean. 



74 THE JEWISH QUARTERLY REVIEW 

method of using the tinai 9?2 rule. For in Lev. n. 24, 
where the defilement of liquids is spoken of, it is said : 
ndc ^32 nne» "icx npe>D bi. Jose saw in the words fine" ne>N 
' which is drinkable ' or ' which is drunk out of a vessel ', 
a limiting special term, BIS, which qualifies and limits the 
general term, npco bst, and excludes from the latter the 
NTUBD »3 npva which ' is not drinkable ' or ' is not drunk 
out of a vessel '. In the same way Eliezer (in Sifra, 
Shemini, IX, Weiss 55 a) applies this principle to exclude 
nno npe»o. C5 

Thus we find that Jose derived all his decisions from 
the Scripture by means of interpretations, and that these 
interpretations were according to new methods. These 
new methods, however, were rejected by his contemporaries, 
because they were novel. The teachers of the next genera- 
tion and possibly even some of his colleagues, respecting the 
authority of Jose, accepted his decisions but hesitated to 
recognize the validity of the new rule of onsi 9?2 which 
Jose used. Since they did not accept this method they 
could not teach these decisions together with the scriptural 

65 It is possible that in the saying of R. Eliezer, the representative of 
the older Halakah, we have the same decision which was given by Jose. 
Jose, however, directed his decision to a certain kind of undrinkable liquid, 
the MTQttQ <3 flpCO, while the older Halakah as represented by R. Eliezer 
formulated the same decision in a general way, so as to apply it to all 
undrinkable liquids, riHD npCO. Accordingly, the statement of Rab 
(Pesahim 17 a) that Jose held that there was no biblical law which would 
subject liquids to uncleanness, minf! [O pptTD^ ilNOlB pK 13Dp, is not 
correct. Jose excluded only undrinkable liquids from these laws. It is 
very unlikely that as early as the time of Jose there was a rabbinical law 
declaring liquids subject to uncleanness, [33TTO ppCD? iTTTJ. It should 
be noticed that there is much confusion about the laws of PpSTD DKD112, 
which made it difficult to ascertain the real meaning of Jose's decision, the 
more 30 as the later teachers sought to harmonize it with the later halakic 
rulings about liquids. 



MIDRASH AND MISHNAH — LAUTERBACH 75 

proofs given to them by Jose. They therefore merely 
mentioned them as decisions given by Jose. They would 
not even teach them in Hebrew, the language in which 
they taught all their Halakot connected with the Scripture 
in Midrash-form. They formulated them in the Aramaic 
language, then already popular, just as they would mention 
decisions given by secular authorities, or just as they would 
refer to popular customs in the language of the people, 
rather than in the language of the school. 60 For this reason 
they introduced these Halakot with the formula w Tyn, 67 
Jose ' declared ', or ' stated ', i. e. Jose is the authority for 
these decisions; and they properly called him nhs? W, 
' Jose the Permitter '. 

On the same principle and in the same manner, the 
teachers dealt with another decision given by Jose ben 
Joezer and his colleague Jose ben Johanan of Jerusalem, 
viz. that glassware is subject to the laws of Levitical 
uncleanness. An old tradition reports that the two Joses 
decreed that the laws of uncleanness apply to glassware, 
Jvawr *!>3 by mv\o n» (Shabbat 15 a). There is no reason 

** In the Midrash form, when the Halakah forms a sort of a commentary 
on the Hebrew text, the use of the Hebrew language especially recommended 
itself. In many cases the comment consisted merely in emphasizing the 
important words in the text, or in calling attention to a peculiar construction 
or to a special form. All these peculiarities of the Midrash would have 
made it very difficult to use another language than Hebrew. In this manner 
Hebrew remained the D'DSn pEv, the language of the school. It con- 
tinued to be used for teaching Halakah even when the latter was separated 
from the Hebrew text of the Scriptures and taught independently in 
Mishnah-form. 

67 See above, note 30. There is no doubt that the introductory formula 
Tyn was added by a later teacher. It may be that in the case of Jose, 
as in the case of Akabiah (see above, note 58) the later teacher who added 
this formula meant to suggest by it that Jose had a tradition on which he 
based his decisions, so that he was not the author or innovator of the same. 



ft THE JEWISH QUARTERLY REVIEW 

to doubt the genuineness of this report in the Babylonian 
Talmud, nor are there any reasons for ascribing this decree 
to other authors as Graetz has done. 68 The reason for this 

cs Graetz, Geschichte, III 4 , p. 707, is inclined to ascribe this decree about 
glassware to Simon b. Shetah and not to Jose b. Joezer. He bases his 
theory solely on the passage in p. Ketubbot, VIII, 11, 3a c, where it is said 
of Simon b. Shetah, fVa'Dt fab DNDID Ppnn NWI. The correctness 
of this statement is questioned by the Talmud on the ground that it conflicts 
with another reliable report, which ascribes this decree to the two Joses. 
The explanation is then offered that both reports are correct. The decree was 
first issued by the two Joses, but was subsequently forgotten or neglected, 
and then revived and reintroduced by Simon b. Shetah. This talmudic 
explanation may be correct. The hesitancy on the part of the other 
teachers, Jose's colleagues, to accept the interpretation on which he based 
his decree may have necessitated another formal decree or a confirmatory 
act in the days of Simon b. Shetah. Graetz, however, evidently does not 
think so. He discards this explanation of the Talmud as a poor attempt 
to harmonize these two conflicting reports. However, granted that this 
explanation is merely a harmonization, we can reject the explanation but 
not the objection raised by the Talmud. There is no reason whatever for 
ignoring all the other reports which ascribe the decree to the two Joses 
and accepting this one which ascribes it to Simon b. Shetah. This is all 
the more incorrect as it is apparent that this one report is based on 
a mistake. Simon b. Shetah decreed against metal-ware, ni3riO v3 
(Shabbat 14b, comp. Graetz, I.e., pp. 706, 708). In a report about this 
decree of Simon some one probably made the mistake of substituting 
JTOiat fa for mariD fa. R. Jonah's saying cited there in the Talmud 
(p. Ketubbot, /. c.) is accordingly another answer to the question raised 
there about the two conflicting reports. It is introduced for the purpose 
of correcting the mistake in the one report, and telling us that Simon 
decreed only against metal-ware JTDrlO fa and not against JV313t *?3. 
The decree against the latter, then, really came from the two Joses as 
reported repeatedly in p. Shabbat I, 3 d, p. Pesahim 27 d, and b. Shabbat 15 a. 
Graetz is wrong in assuming that the Babylonian Talmud does not 
contain correct information about this subject, and that the utterance of an 
Amora Zeera is mistaken in the Babylonian Talmud for a Baraita. The 
contrary is true. This report is an older Baraita. In the Palestinian 
Talmud, however, this Baraita is mentioned by the Amora Zeera, as there 
are many such instances of Baraitot being quoted byAmoraim and appearing 
as if they were the sayings of the Amoraim (see Frankel, Mebo ha-Jerushalmi, 
pp. 26-7). 



MIDRASH AND MISHNAH — LAUTERBACH 77 

decision was (as is correctly given by Johanan, in the name 
of Simon ben Lakish) that glass is made of sand and is 
therefore the same as any other earthen vessel, Din ^3 
(ibid., 15 b). The Talmud, discussing this explanation of 
Simon ben Lakish, raises the following question : ' If glass- 
ware has been declared like Dm V3 because being made of 
sand it belongs to the class of earthen vessels, why then is 
it not considered by the Halakah as Din ^3 in all respects ? 
In the discussion that follows, the Talmud (ibid.) finds 
difficulties in answering this question. We are not concerned 
with the answer given in the Talmud, because it is merely 
an unsuccessful attempt to harmonize the decision of Jose 
with later practice. The significant thing for us is that 
this question was raised. It indicates that the Amoraim 
experienced difficulty in understanding the decision, although 

From the discussion in the Babylonian Talmud about this report it is 
evident that they were well informed about this case. Objections are raised 
against part of this tradition, viz. the report about the decree of ?J) HKDID 
D'DJJH }*1K. They show that there is another report which ascribes it to 
the iUC CJIDBH |331. The two reports are, however, harmonized. But 
they could not find any contradictory report about the decree against 
TVOttt ^3. 

The reading TWOT v3 ?V) in the report of the activity of the [331 
n3B> C^OEH is missing in the older codices. See Zerahiah Halevi in 
Hamaor to Shabbat, ad loc. From the fact that no answer or solution is 
given in regard to JV313T v3 it is also evident that the report about the act 
of the 7\Y&' a'JlBBH }J3"> only mentioned the decree of pK bv ilKDlD 

Graetz's argument, that this institution presupposes the common use of 
glassware among the people, a practice which could not have been the case 
in the time of the two Joses, is rather weak. Although the great majority 
of the people may not have lived in luxury in the time of the two Joses, 
yet there were at least some rich people who could and did indulge in the 
luxury of using glassware. It was just at the first introduction of these 
vessels to Judea by some rich people that the question about their status in 
regard to the laws of cleanness came up. The teachers then declared that 
they were subject to the laws of uncleanness. 



78 THE JEWISH QUARTERLY REVIEW 

they were aware of the basis upon which Jose founded his 
decision. To this question raised in the Talmud we may 
add the following question which will disclose another weak 
point in the explanation of the decision. If this decision 
of the two Joses was reached by interpreting the biblical 
term Din ^3 so as to include glassware (because it is made 
of sand) then their decision was in reality a biblical law, 
as no distinction can be made between vessels of clay and 
vessels of sand, both being earthen vessels. Why then was 
this decision ascribed to the two Joses and characterized 
as an arbitrary decree, a mere rrvn ? The following ex- 
planation will give the answer to both questions mentioned 
above and will remove the difficulties experienced by the 
talmudic teachers in understanding this decision. Jose and 
his colleague interpreted the biblical term Din 'i>3 to mean 
a vessel made of any kind of earth, and, consequently, he 
included in it rraar ^3 which he indeed considered in all 
respects like Din '73 . The younger teachers, however, would 
not accept the broad definition given by Jose to the term 
Din ^3 so as to include n'sisr "bs also. For this reason 
they refused to follow Jose in considering glassware like 
Din ^3 in all respects. Out of respect for the two Joses, 
some of their contemporaries or successors accepted the 
decision, but designated it merely as a rabbinical decree, 
a m»n. They would therefore apply to n*3i3r ^3 only 
certain of the laws of uncleanness that pertained to earthen 
vessels, Din ^3. These other teachers would therefore not 
teach this decision in the Midrash-form together with the 
passage Din ^3 bs), as Jose no doubt did. They would 
teach it as an independent Halakah, as a rabbinical law 
that has no scriptural basis but rested merely upon the 
authority of the two teachers. 



MIDRASH AND MISHNAH — LAUTERBACH 79 

The motive for accepting a teacher's decision without 
accepting his proof, may be found either in the respect 
entertained by the younger teachers for the author of the 
decision, or in their belief, that the author of the decision 
was in possession of a tradition unknown to them. 09 In 
either case they had no hesitancy in rejecting the proofs 
which they considered unconvincing or too novel. Whatever 
their motives, it is certain that the younger contemporaries 
of Jose or his successors accepted his decisions and taught 
them in his name although without his proofs for them. 
The latter they rejected, because they did not approve of 
his new methods of interpretation. 

This attitude, despite its inconsistency, was quite 
common among the teachers of the Halakah. 70 The most 
striking instance of this practice is to be found in the 
story of Hillel and the Bene Batyra (Yerush. Pesahim 33 a). 
In this account we are told that all the arguments and 
scriptural proofs advanced by Hillel in favour of the decision 
that the Passover sacrifice should set aside the Sabbath 
were rejected by the Bene Batyra, although Hillel had 
learned all or most of these proofs and interpretations 
from his teachers Shemaiah and Abtalion. But when, at 
last, he told them that he had received the decision itself 
from Shemaiah and Abtalion, they forthwith accepted the 

69 Compare the idea expressed in the saying: DTQ rDPil iirpn "p 
MlB*On njn bv IDODHI D«3BT1 •nejll mrDBn, often used to explain 
the acts of the teachers who instituted new laws (p. Shebiit 33 b and 
p. Ketubbot 32 c). It is possible that such an idea was conceived in very 
early times, and possibly it was such a view that guided the successors of 
Jose in their acceptance of his decisions. 

"> Compare the phrase PDIBTl VT> p!> DK1 $>3pJ roi>n DN (M. Yebamot 
VIII, 3 and M. Keritot III, 9) which clearly shows that they were ready 
to accept a Halakah although rejecting the proof offered for that Halakah. 



80 THE JEWISH QUARTERLY REVIEW 

same, "tj> uqd •top *6 Dvn 5>a \rb trim atw nw 'B i>y in 
jrtaaNl rpynco tiiw ia '•i'jj xa' 1 -idkb>. We need not discuss 
the historicity of this report, a point which is, to say the 
least, very doubtful- Whatever we may think of the 
account, we may be sure that its author pictured accurately 
the attitude which teachers usually assumed towards the 
decisions given in the name of older teachers. It is evident 
from this account that its author certainly believed that 
teachers or authorities like the Bene Batyra (whoever they 
may have been) were in the habit of accepting decisions 
given in the name of a departed teacher, even in cases 
where they would refuse to accept the proofs for the 
decisions also given in the name of that teacher. 71 Whether 
this actually took place in the case of Hillel and the Bene 
Batyra is of minor importance. Accordingly, we learn 
from this report that in the time of Hillel there were 
certain teachers who raised objections to the new methods 
which Hillel had acquired from the great exegetes DWH 
D'bvu, Shemaiah and Abtalion. However, the same 
teachers would not hesitate to accept a practical decision 
which Hillel reported in the name of these two authorities. 

71 Compare Bassfreund (op. at., p. 19, note 3). All the difficulties which 
he finds in this story are removed by our explanation. Most likely Hillel 
had learned from Shemaiah and Abtalion not only the decision but also all 
the interpretations which he offered as arguments in favour of the same. 
He also gave these interpretations in the name of his teachers. The Bene 
Batyra, however, refused to accept these interpretations, because they 
objected to the new methods developed by Shemaiah and Abtalion. It 
was their opposition to these new methods of interpretation which kept 
them from attending the schools of Shemaiah and Abtalion, and not 
their negligence, as one might judge from Hillel's reputed remark : rivSJ) 
"linn >h"U W Draw xbw Daa nriW. Their respect for these great 
teachers, however, led them to accept their decision, even though they 
would not accept their proofs. 



MIDRASH AND MISHNAH — LAUTERBACH 8r 

That which happened in the time of Hillel also happened 
in the time of Jose ben Joezer. When he used new methods 
of interpretation for the first time, his colleagues hesitated 
to follow him, although they did accept some of the 
decisions which he derived from the Scripture by means 
of these new methods. 

We can easily understand the reason for such an attitude, 
inconsistent as it may appear. To accept the proof for 
a decision implied approval of the method by which that 
proof was obtained. This would open the door to further 
application of these new methods, so that there was no way 
of telling what decisions might be thus arrived at. Against 
this danger the teachers attempted to guard themselves, 
but they never went so far as to decide, in any practical 
case, against the authority of an older teacher. For this 
reason they would often accept the decision but reject the 
proofs. 

In the above, we have digressed for the purpose of 
making clear that difference of opinion concerning methods 
of interpretation prompted the teachers to sometimes divorce 
a Halakah from the scriptural proof. We have also seen 
that the three oldest Halakot preserved in Mishnah-form, 
namely, the three decisions of Jose, owed their present form 
to this very reason. They were expressed in Mishnah-form 
by Jose's disciples who felt constrained to reject the proofs 
advanced by Jose because of the novelty of his methods of 
interpretation. 

Accordingly, it may be stated with certainty that the 
Mishnah-form was first used to teach those customs and 
practices which originated during the time when there was 
no official activity of the teachers. Having no scriptural 
basis, they could not be taught in connexion with the 
VOL. VI. G 



82 THE JEWISH QUARTERLY REVIEW 

Scripture, i.e. in the Midrash-form. The Mishnah-form 
was further used to teach those traditional laws and 
decisions which some teachers attempted to derive from 
Scripture by means of new methods of interpretation. 
While some of their contemporaries or disciples accepted 
the new methods, and therefore taught these decisions in 
the Midrash-form, others, and by far the majority, rejecting 
the new methods, accepted only the decisions. Finding no 
convincing proofs for such laws in the Bible, they taught 
them independently of scriptural proof, i.e. in the Mishnah- 
form. These two motives for teaching Halakot in the 
Mishnah-form are really one and the same. Whether no 
midrashic proof could be found for a decision, or whether 
the midrashic proof suggested was deemed unconvincing, 
the motive for the Mishnah-form was the same — the 
absence of a sound Midrash. 

To this first motive there soon were added other motives 
for the use of the Mishnah-form. Certain considerations 
in the course of time urged the teachers to extend its use 
even to such Halakot as had, in their opinion, good 
scriptural proofs and could well be taught in connexion 
with the Scripture in the Midrash-form. These other 
motives and considerations arose from the disputes between 
the Sadducees and Pharisees. They became stronger and 
stronger with the ever-widening breach between the two 
factions. 

As the dispute between the parties progressed, the 
antagonism between them naturally became sharper. Each 
party came to assume a distinctive attitude towards the 
Law, and they consistently worked out their respective lines 
of attack and defence. The Pharisees came to recognize 
the binding character of the traditional law, ne byxt? min, 



MIDRASH AND MISHNAH — LAUTERBACH 83 

and demanded that it be considered of equal authority 
with the written Law. The Sadducees, on the other hand, 
became more outspoken in their denial that the traditional 
law possessed absolute authority. These differences had 
their effect upon the forms used in teaching the Halakah. 

As we have seen above, the Midrash was used for the 
purpose of grafting new decisions and practices upon the 
words of the written law, when the latter only was con- 
sidered the sole authority binding upon the people. To 
give sanction to any decision or traditional law, it was 
necessary to find for it some indication in the authoritative 
Book of the Law and thus to present it as contained 
or implied in the written Law. As soon as Tradition was 
raised to the rank of the Law and thus recognized as an 
independent authority parallel to the written Law, there 
was no longer that urgent need of connecting each and 
every Halakah with the words of the written Law in the 
form of the Midrash. A halakic decision based on a 
tradition was now considered by the teachers, and repre- 
sented by them, to be just as authoritative as one derived 
from the written Torah by means of an interpretation or 
Midrash. The Halakah as traditional law could now stand 
without the support of a scriptural basis, and could there- 
fore be taught independently in the Mishnah-form. Not 
only was there no more need for teaching all the Halakot 
together with the written Law in the Midrash form, but 
there were also sufficient reasons for the Pharisaic teachers 
to teach Halakah as traditional law without even attempting 
to connect the same with the written Law. For, in so 
doing, they emphasized their belief in the twin-law nmn W; 
that is, the belief that there were two equal sources of 
religious teaching, one the written Torah and the other 

GU 



84 THE JEWISH QUARTERLY REVIEW 

the unwritten Oral Law, both of which must be studied 
alike, and that one is as important as the other. Of course 
they continued to develop the Midrash method for the 
purpose of deriving new Halakot from the one source — 
the written Law. The Halakot thus derived from the 
Scriptures were taught together with the latter, in the 
Midrash-form. In this way, they could well continue to 
use the Midrash-form even after the Mishnah-form was 
adopted. They were apprehensive only of using the 
Midrash-form exclusively, because such an exclusive use 
might reflect upon their theory of an authoritative Oral 
Law. The very endeavour to connect all Halakot with 
the written Law by means of the Midrash would have 
meant to acknowledge that there was only one Law, 
namely, the one contained in the Book. They would 
thus have conceded to the Sadducees the disputed point 
that the traditional law, ns by2W mm, was not of equal 
authority with the written Law, anaat? rnin. By 
the parallel use of both forms, Midrash and Mishnah, 
they showed that they treated both sources alike. By 
teaching in Mishnah-form even such Halakot as could 
be derived from the written Law and taught in the 
Midrash-form, they showed that they were not very 
anxious to find scriptural support for each Halakah. This 
was a strong expression of their belief in the equal authority 
of the two Torot, a belief that made it of little consequence 
whether a Halakah was taught in the Midrash-form, as 
derived from the written Law, or in the Mishnah-form, as 
a traditional law. 

Furthermore, the exclusive use of the Midrash-form 
threatened to endanger the authority and the teachings of 
the Pharisees. These apprehensions caused the Pharisaic 



MIDRASH AND MISHNAH — LAUTERBACH 85 

teachers to make more extensive use of the Mishnah-form 
and in some cases even to prefer the same to the Midrash- 
form. For to give all the halakic teachings of the Pharisees 
in the Midrash-form as based on the Scripture would have 
exposed these teachings to the attack of the Sadducees. 
As we have seen above, the hesitancy on the part of some 
teachers to recognize the validity of the new interpretations 
offered in support of certain decisions led to their teaching 
such decisions in Mishnah-form. The new rules and methods 
gradually found recognition among the Pharisaic teachers, 
who would admit the validity of interpretations derived by 
means of these new methods. Thus they were able to 
furnish a Midrash for almost every Halakah. But among 
the Sadducees the objection to these new methods was 
very strong and they absolutely denied their validity. If 
the Pharisees arrived at a certain decision by means of 
a new interpretation, the Sadducees could always dispute 
that decision by refuting the scriptural proof offered for it. 
It was possible for them to argue that the Pharisaic inter- 
pretation was unwarranted and that the scriptural passage 
did not mean what the Pharisees tried to read into it. The 
Pharisees feared that such arguments against their teachings 
raised by the Sadducees might have a detrimental effect 
upon the young students and draw them away from the 
Pharisaic teachings. The Pharisees were well aware that 
some of their interpretations were rather forced, and that 
their opponents' arguments against these interpretations were 
sound. Wherever possible, the Pharisees were, therefore, 
anxious to avoid such disputes, or to prevent their pupils 
from entering into them. The easiest way to avoid these 
disputes concerning the validity of the scriptural proofs for 
the Pharisaic teachings, was to avoid the mention of any 



86 THE JEWISH QUARTERLY REVIEW 

such doubtful scriptural proofs at all, that is to say, to use 
Mishnah rather than Midrash. 72 After the Pharisaic teachers 

,J It should be noticed that it was only with the younger students that 
the teachers pursued this pedagogical method of suppressing scriptural 
proofs, when these were not quite perfect, and of teaching the Halakot in 
Mishnah-form without any proof whatsoever. They considered it necessary 
to take this precaution to prevent the young students from being shaken 
in their belief in tradition and from doubting the authority of the traditional 
law. To the advanced students, however, they would unhesitatingly 
communicate all the scriptural proofs or even artificial supports which they 
had for their teachings. Hence among the advanced students the use of the 
Midrash-form was prevalent (see above, note 3). 

A few talmudic sayings may be cited here to prove that it was the 
tendency among the teachers to withhold from the students while young 
the arguments and reasons for the laws and to keep them from disputes with 
their opponents. Simon b. Halafta says : £^33 D^tSp D , TDi>nnB> nj?E>3 

min n orb rbi omnia iwi "bmn min nm amsb • a s ion g 

as the pupils are young hide from them [some] words of the Torah. When 
they are more mature and advanced reveal to them the secrets of the Torah ' 
(p. Abodah zarah II, 41 d). Simon b. Johai says : "]DW Vp&b men i? PN 
pica OIK '33 'OSS aba min nim ' You are not permitted to enter into 
a deep discussion of the words of the Torah except in the presence of pious 
and good people' (ibid.). By 'pious and good people' p"IBO DIN *J3 
are evidently meant people who follow the Rabbis and accept the teachings 
of the traditional law. According to the Gemara (ibid.) the two sayings 
of Simon b. Halafta and Simon b. Johai go together. There is a subtle 
connexion between them. This connexion consists in the fact that both 
aim at the same purpose, viz. not to give the opponents of the Rabbis and 
the traditional law any opportunity to attack the traditional law by refuting 
the arguments or proofs brought for the same by the Rabbis. 

We see from these two sayings that even as late as the middle of the 
second century c. e., when the followers of the Sadducean doctrines were 
no more so strong, neither in numbers nor in influence, the Rabbis were still 
anxious to avoid disputes with them, and would therefore not tell the young 
pupils all their arguments and reasons for the laws, lest the opponents 
might refute them and upset the beliefs of the young pupils. Compare the 
saying of Jose b. Halafta, nmb D"pnxi> DlpD Tjnn i>K, M. Parah III, 3, 
and see below, note 80. 

In the days of the earlier teachers when the influence of the Sadducees 
and their followers was stronger, this tendency among the teachers of the 
traditional law, to keep the young students from entering into discussions 



MIDRASH AND MISHNAH — LAUTERBACH 87 

agreed upon deriving a certain Halakah from a given passage, 
they preferred to teach that Halakah in an independent form 
without citing passage or interpretation. Such a Halakah 
or decision could then be received in good faith by the 
students who followed the Pharisees. The pupils would 
rely on the authority of the teachers believing that they 
were in possession of valid proofs for their Halakot, although 
they did not mention them. On the other hand, the 
Sadducees could never successfully refute the Halakot thus 

with the Sadducees, must of course have been stronger. The saying of 
R. Eliezer: Bn33n Toi>n 1313 pi BUHPim JVJnn P M'M 1WD 
(Berakot 17 b), probably expresses this tendency to make the young pupils 
study more the traditional law at the feet of the teachers, and keep them 
away from studying the scriptural proofs and the arguments for the tradi- 
tional laws. A very striking illustration of this tendency among the earlier 
teachers is found in the report of a conversation between Ishmael and 
R. Joshua b. Hananiah. Ishmael asks R. Joshua to tell him the reason for 
a certain rabbinical law. Joshua, apparently unwilling to state the real 
reason, gives him an evasive answer. This does not satisfy Ishmael, and 
he persists in demanding an explanation. Joshua, instead of replying, 
simply ignores the question, drops the subject, and begins to discuss another 
subject (M. Abodah zarah II, 5). The Gemara (35 a) reports further that 
Joshua actually commanded Ishmael to stop asking questions about this Law. 
He plainly told him, y<Wrb bran bif\ 1U It THBt? pICn ' Close your 
lips and be not so anxious to argue '. The Gemara then gives the following 
explanation for this rather harsh rejoinder. It was a rule with the teachers 
in Palestine not to give a reason for a new law until at least one year after 
it was decreed. They feared that some people, not approving of the reason, 
would disregard and treat lightly the law itself: nH BOW (Q'S KD^>H 
H3 'Wnb TIN) b"0. These words are significant. There was only 
one class of people who might disapprove the reasons of the Rabbis, and 
these were the followers of Sadducean doctrines. Ishmael must have been 
a very young student at that time (see Midrash Shir r. I, a), and R. Joshua 
did not want to give him the reason for this new rabbinical law, for fear 
that some of the opponents of the traditional law might be able to prove 
to young Ishmael that the reason for this law was insufficient. (Compare 
Joshua's remark against those who question the authority of the traditional 
law, to be cited below, note 78.) 



88 THE JEWISH QUARTERLY REVIEW 

taught. Not knowing on what basis they rested or what 
proofs the Pharisees offered for them, they were unable to 
argue concerning them. Their attacks on these Pharisaic 
teachings would then consist of mere negations without the 
force of strong argument. As mere negations are not con- 
vincing, such attacks on the part of the Sadducees could 
not greatly harm the Pharisaic followers. 

The teachers, all of the Pharisaic party, were influenced 
by still another consideration. The tendency to teach only 
in Midrash-form, showing that all the religious teachings 
were lodged in the written Torah, threatened to take away 
from the Pharisaic teachers their prestige and to lend support 
to the claim of the Sadducees that there was no need of the 
iwiB" 'can, i.e. the teachers of the Pharisaic party. In the 
report about the conflict between John Hyrcanus and 
the Pharisees (Kiddushin 66 a) we are told that the former, 
at first, hesitated to persecute the i>X"lE» 'Dan of the Pharisaic 
party because he considered them indispensable as teachers 
of the Law. He is said to have asked iT^J? xnn no min 
' What will become of the Torah ' without the Pharisaic 
teachers ? But his Sadducean adviser, who urged the per- 
secution of the Pharisees, told him ppa nraiai nana nn 
"iidS ay t)a9? nxnn ba rviT, that the Torah would remain, 
even if the Pharisees would be killed. 73 Also that any one 
could study it because the Pharisees were not the only 

73 It makes very little difference whether this story is historically true 
in all its details or not. It reflects the idea of the Sadducees that the 
Pharisaic teachers could be dispensed with, and also the insistence of 
the Pharisees that they were absolutely necessary for the preservation 
of the Torah. The story mirrors for us the fears that the Pharisees enter- 
tained. As we are concerned merely with the motives that prompted 
the Pharisaic teachers to make the change in the form of their teaching, 
this story may be taken as an unconscious but accurate description of the 
consideration which could have moved them. 



MIDRASH AND MISHNAH — LAUTERBACH 89 

teachers of the Law. If, then, all the teachings and the 
Halakot were represented as derived from the Torah by 
means of interpretation, as is done in the Midrash-form, 
this claim of the Sadducees would appear justified. There 
would, indeed, be no need of the ^"it? 1 'Dan , of the Pharisaic 
party. Any one else could likewise interpret the law correctly 
and derive from it all the Halakot that are implied therein, 
for a thorough understanding of the text of the written 
Law was certainly not limited to the Pharisees. Thus the 
aim of the Pharisees to assert their authority and to show 
that they were absolutely necessary for the perpetuation of 
the religious teachings made it desirable for them to use 
the Mishnah-form. Even if there had been no objections 
to their new methods and even if they had been able to 
find scriptural proofs for all their decisions, they neverthe- 
less thought it advisable not to insist upon connecting their 
halakic teachings with the written Law in every case. By 
separating the two, they made themselves indispensable. 
If there were Halakot not connected with the written Law, 
one must turn for these teachings to the 78W 'Dan, who 
alone were in possession of them, and who could not 
therefore be supplanted by others. 

That, which was at first but hesitatingly proposed, viz. 
that there was an oral law alongside of the written Law, 
was now boldly proclaimed. The Pharisaic teachers were 
represented as the teachers of tradition who received the 
oral law through a chain of teachers in direct succession 
from Moses. Consequently they were the only reliable 
authorities for the religious teachings. They insisted that 
their decisions must be accepted as authoritative, with the 
understanding that they either derived them from some 
passage in the Scripture by sound interpretation or based 



90 THE JEWISH QUARTERLY REVIEW 

them upon some reliable tradition. The existence of valid 
proofs was always presupposed. Where no proofs were 
given, it was implied that they were unnecessary, as the 
authority of the teachers was beyond doubt. This tendency 
of the teachers to assert their authority and to maintain 
the validity of the traditional law did not have its motive 
in any petty desire for party aggrandizement, but rather in 
a genuine zeal for the cause, as they understood it. They 
asserted their authority and the authority of the traditional 
law for the purpose of freeing the Torah from the fetters of 
literal interpretation forced upon it by the Sadducees, and 
developing the Law according to its spirit. 

All these considerations caused the teachers to make 
more and more use of the Mishnah-form, but were not 
sufficient to make them abandon the Midrash-form. The 
Midrash-form still had many advantages. It was the older 
form to which they had long been accustomed. It also 
afforded a great help to the memory, as the written word 
can be relied upon to remind one of all the Halakot based 
upon or connected with it. Consequently they used both 
forms. Those Halakot which were based upon a sound 
and indisputable interpretation of a scriptural passage they 
taught in the Midrash-form, i.e. in connexion with the 
scriptural proofs, and they arranged them in the order of 
the scriptural passages. But those Halakot for which the 
scriptural proofs were in dispute, they taught in the Mishnah- 
form and grouped them according to some principle of 
arrangement, such as number-mishnahs or other formulas, 
for the purpose of assisting the memory. In the course of 
time, the number of the Halakot taught in the Mishnah- 
form grew in proportion to the increase and the development 
of the halakic teachings. A great many of the new Halakot, 



MIDRASH AND MISHNAH — LAUTERBACH 91 

both new decisions and new applications of older laws, were 
taught in the Mishnah-form by some teachers, because they 
could not find satisfactory scriptural support for them. It 
will be recollected that the decisions of Jose ben Joezer 
were given in the Mishnah-form for the same reason. 

The process of development from the Midrash of the 
Older Halakah to the Midrash of the Younger Halakah 
was marked by constant struggles, in which the older 
methods tried to maintain themselves as long as possible. 
In each generation (at least until the time of the pupils of 
R. Akiba) the teachers were divided as to the acceptance 
of these new methods. Some teachers clung to the older 
ways and would not follow the daring applications of some 
new rules of the younger teachers. With the growth and 
development of the new methods, which only slowly and 
gradually won recognition with all the teachers, the number 
of Halakot connected with the Scriptures by means of these 
new exegetical rules, also grew. Such Halakot were then 
taught by different teachers in different forms. Those 
teachers who approved of all the new methods consequently 
considered the interpretations reached by these methods as 
sound, and the Halakot proved thereby as well founded in 
the Written Law. Accordingly, they would not hesitate 
to teach these Halakot together with their proofs, that is, 
in the Midrash-form. But those teachers who hesitated to 
accept the novel methods and the new interpretations based 
thereon, but who still accepted the Halakot, did so because 
they considered them as traditional, or because the same 
represented the opinion of the majority. Having no sound 
proofs, in their opinion, for these Halakot, they were com- 
pelled to teach them in the Mishnah-form, without any 
scriptural proof. 



92 THE JEWISH QUARTERLY REVIEW 

We find many such cases in the tannaitic literature. Of 
these we shall mention only a few ; in Sifra, Zaw XI (ed. 
Weiss 34 d-35 a), R. Akiba tries to prove by one of his 
peculiar methods of interpretation that a ' Todah '-offering 
requires half a 'log* of oil. But R. Eleazar ben Azariah 
said to him : ' Even if you should keep on arguing the 
whole day with your rules about including and excluding 
qualities of scriptural expressions, I will not listen to you. 
The decision that a "Todah "-offering requires half a "log" of 
oil is to be accepted as a traditional law.' 74 ntsis nnx W'BK 
vb wi xbx i? ym? wk bdoS> |dbo nu-6 pea iSa diti 5>a 
^DD ne>»!> rota mini' pe>. The emphatic expression ^K 
i? J)»ie> * I will not listen to you', in the statement of 
Eleazar b. Azariah shows that he strongly objected to 
Akiba's method of interpretation, and that he considered 
such proof, not merely unnecessary, but also unsound. If 
Eleazar was actually in possession of a tradition for this 
law, it would have been sufficient to say "pis WK ' There 

74 It is very doubtful whether R. Eleazar b. Azariah himself used the 
term 'J'DD TViw ru?n to apply to this law (notwithstanding Bacher, 
' Die Satzung vom Sinai ', in Studies in Jewish Literature published in honour 
of Dr. K. Kohler, Berlin, 1913, p. 58). It is more likely that the words 
'^DD nCD? are a late addition and not the words of R. Eleazar. R. Eleazar 
said merely that this rule was a traditional or rabbinical law, TO?T\. A later 
teacher, who understood the term rD?fl to mean ' Sinaitic Law ', added 
the words 'J'DD HtJ'D?. There are many such instances where a later 
teacher enlarges the term Ta?T\ , used by an older teacher, to DCD? n3?n 
'J'DD, simply because he, the later teacher, understood the term rDPD in 
this sense. But this interpretation, given by a later teacher, to the term 
rD^il which was used by an older teacher, is not necessarily correct. 
Thus, for instance, the term Twfl used in the statement of the Mishnah 
na^n r6*IJ?m (M. Orlah HI, 9) is interpreted by R. Johanan to mean 
'3'DD iV&zb nbn (p. Orlah 63 b, b. Kiddushin 38 b-39 a), while Samuel 
explains it merely to mean simply a law or custom of the land H3HD Nn3?i1 
{ibid.). 



MIDRASH AND MISHNAH — LAUTERBACH 93 

is no need of scriptural proof. It is evident that this 
Halakah could not be based on an indisputable traditional 
law. 75 R. Akiba, therefore, desired to give it support by 
proving it from the Scriptures. He, no doubt, taught it in 
the Midrash-form together with the passage from which he 
endeavoured to prove it. But R. Eleazar b. Azariah, who 
did not approve the interpretation of R. Akiba, although 
he accepted the Halakah, naturally taught it as a traditional 
law, and, of course, in Mishnah-form. 

Another example is to be found in the reasoning used 
to justify the ceremony performed with the willow, TOiy. 
This, no doubt, was an old traditional custom. Abba Saul, 
however, declared it to be a biblical law, deriving it from 
the plural form ^ns Oljj used in the passage of Lev. 23. 40. 
This passage, according to Abba Saul, speaks of two 
willows. One is to be taken together with the Lulab, 
and the other separately for the special ceremony with 
the rmy. Abba Saul, no doubt, taught this Halakah 
in the Midrash-form as an interpretation of the passage in 
Lev. 23. 40. The other teachers, however, did not accept 
this interpretation. They considered this ceremony a mere 
traditional law, VDO rmh mbn (Jerush. Shebiit 33 b), and, 
of course, taught it in the Mishnah-form. 

76 It is absolutely impossible to assume that R. Akiba refused to believe 
the statement of R. Eleazar b. Azariah that he had a tradition in support 
of this law. The contrary must, therefore, be true. R. Eleazar rejected 
the Midrashic proof given by R. Akiba but accepted the law as a mere 
PO/fl , i. e. as a rabbinical or traditional law. It may be, however, that this 
law was really an older traditional law, though not 'J'DD TWW TO?T\, and 
that R. Akiba tried to give it a scriptural support while R. Eleazar preferred 
to teach it as a detached Halakah, i. e. in Midrash-form. Compare the 
statement in Niddah 73 a in regard to another law which R. Akiba derived 
from a scriptural passage, while R. Eleazar b. Azariah preferred to teach 
it as a mere Halakah, KrD^TI mij? j3 ItV^N *2"b 'tT\p Wpy , 3li>- 



94 THE JEWISH QUARTERLY REVIEW 

The same was also the case with the ceremony of the 
water-libation, Van *]1D3, which R. Akiba, by means of 
a forced interpretation, tried to represent as a biblical law. 
The other teachers did not accept his interpretation. They 
considered it merely a traditional law, WDD nmb nairj (ibid.), 
and, of course, taught it in the Mishnah-form. In this 
manner, the same decisions were sometimes taught by some 
teachers in the Midrash-form, while other teachers taught 
them in the Mishnah form. 76 Thus the two forms continued 
in use according to the preference of the teachers. The 
parallel usage of these two forms continued long after 
Sadduceeism had ceased to be an influential factor in the 
life of the people, and the Pharisaic teachers had become 
the only recognized teachers of the Law. The Mishnah- 
form was retained by the teachers even after the new 
methods of interpretation had become generally accepted. 
In spite of the fact that these methods were developed to 

78 The very frequency with which the Amoraim declare scriptural 
interpretations of the Tannaim to be merely artificial supports, NJIDDDK 
ND?$?3, for rabbinical or traditional laws (see Bacher, Die exegetische 
Terminologie der jiidischen Tradltionsliteratur, II, pp. 13-14), shows that 
it must have been frequent among the Tannaim to consider some inter- 
pretations as mere artificial supports and not real proofs. Otherwise, the 
Amoraim would not have doubted the validity of a tannaitic Midrash. It 
was only because they knew that the Tannaim themselves had frequently 
rejected a Midrash as unacceptable, that the Amoraim dared declare that 
some tannaitic interpretations were merely artificial supports. 

Perhaps we have in the expressions ND^jn KmDDK fOpI paTTO 
and KD^J?3 NTOODK Nlpl rb nVM NTD^rt an attempt at harmonization 
on the part of the Amoraim for the purpose of explaining away the differ- 
ences of opinion between the older teachers. They mean to tell us that 
the older teachers always agreed as to which laws were traditional and 
which were derived from the Scriptures by means of interpretation. 
However, in the case of certain traditional laws, some of the teachers sought 
to find an additional artificial support for the same for the mere purpose 
of connecting them with the Scriptures — not because they doubted their 
traditional character. 



MIDRASH AND MISHNAH — LAUTERBACH 95 

such an extent that one could interpret any passage to mean 
almost anything, and thus provide scriptural proofs for all 
possible decisions, the teachers, having habituated them- 
selves to the Mishnah-form adhered to it. An additional 
reason for its retention may be found in the fact that the 
Mishnah-form itself had in the meantime improved. It 
lent itself to new principles of arrangement and grouping 
which gave it decided advantage for systematic presenta- 
tion of the Halakah, and thus made it a desirable form of 
teaching. 77 The teachers themselves having in the mean- 
time become accustomed to the idea of an oral law equal 
in authority to the written Law, now considered it unneces- 
sary to seek scriptural proof for each and every law. They 
would occasionally even separate Halakot, based upon 
sound scriptural proofs, from their Midrash bases for the 
purpose of presenting them more systematically in Mishnah- 
form. R. Akiba, the boldest advocate of new Midrash- 
methods, was himself the one who helped to retain the 
Mishnah-form by improving it and introducing therein 
the principle of topical arrangement. 

Thus, out of the one form evolved our Mishnah, a 
collection of Halakot in independent form arranged 
topically. Out of the other developed our halakic Mid- 
rashim, Mekilta,. Sifra, and Sifre, which furnish a running 
commentary on the Books of the Law. 

" This may seem as if we accepted the view of Frankel and Weiss 
about the advantages offered by the systematic arrangement of the Mishnah. 
But it was only after the Mishnah had been long in use and developed its 
system of grouping that it could be deemed advisable to arrange all the 
Halakot in Mishnah-form, while Frankel and Weiss assume that these 
advantages offered by the Mishnah in its later stage only were the cause of 
the change from Midrash to Mishnah. This, of course, is wrong, as the 
earlier Mishnah did not offer these advantages. 

{To be continued)