The Memory of the Temple and the Making of the Rabbis. Naftali S. Cohn
imperial treasury. For it is settled that provisions of the revenue law are not set aside by the pacts of private persons. (Digest 2.14.42, Papinian, Replies, book 17)
There was a case [ma‘ăśeh] with a certain woman who was drunk, and they poured [another] cup [of wine] for her. She said, “I am a Nazirite from it” [thus taking a vow of abstinence from wine and, according to mishnaic law, inadvertently taking upon herself all the Nazirite restrictions]. The sages said: She only meant [to say], for instance, “This is a sacrifice for me” [a non-Nazirite vow, and so her apparent Nazirite vow of abstinence is null and void]. (Mishnah Nazir 2:3)17
These examples are quite similar in presenting only the case and then the ruling—though the ruling is oblique in the mishnaic case. This mishnaic example lacks the explanation of the ruling, which is given in the example from the Digest, but such explanations can be found in a number of mishnaic case stories, such as Mishnah Terumot 4:13: “Rabbi Yose said: A case came before Rabbi Akiva regarding fifty bunches of greens into which one bunch which was half tĕrumāh [sacred produce to be eaten by priests] had fallen. And I said before him, ‘Let it be neutralized [that is, the small fraction that was sacred is now considered non-sacred and the entire mixture permitted to be eaten]; not because tĕrumāh is neutralized in a one in fifty-one mixture but because there were 102 halves’ [that is, it is neutralized in a 1:102 mixture].”
This example is unusual in that it depicts a rabbinic disciple’s training: the student, Rabbi Yose, does not issue an actual ruling but suggests it to his master, to whom the case had come. We are not told about the final ruling by Rabbi Akiva; presumably, he accepted what Rabbi Yose had said. Regardless of these details of the actual ruling, we are given in this example an explanation for the ruling, similar to what we are given in the example from Papinian.
Though most mishnaic case stories lack the formal language of question and response, there are a handful of instances in which the rabbinic legal opinion is specifically given in response to being asked, and these cases are especially similar to the typical Roman responsa. In Mishnah ‘Avodah Zarah 5:2, for instance, a certain Boethus, son of Xenon (bōytas ben zinōn), asks the sages about his case: “A case with Boethus, son of Xenon, who brought dried figs on a boat, and a barrel of [forbidden] libation wine broke and [the wine] fell onto [the dried figs]. And he asked the sages, and they permitted them” (emphasis added). This particular example is more personal than the Roman examples from the Digest because the individual who asked the legal question is named; nevertheless, the act of asking is quite similar to the formal asking in the responsa of Roman jurists.18
Based on the evidence marshaled thus far, in most examples, the Roman and rabbinic responsa may differ slightly in form, but the role of the rabbinic jurist, clarifying and determining the law in real cases, is nearly identical to that of the Roman jurist.19 And the handful of instances in which the form is in fact the same are particularly suggestive of the parallel between the rabbinic and the Roman juristic role.20
In the comparable juristic and mishnaic case stories, there is a second similarity between the Roman jurists and the rabbis: both are engaged more generally in creating the law.21 Martin Goodman, who was first to suggest that the rabbis are akin in their role to Roman jurists, emphasizes the common interest in the creation of law and especially the codification of law: “The relation of the rabbis to the courts is easily explicable in terms of the relation of iurisprudentes (jurists) to a legal system. Not unlike contemporary lawyers such as Ulpian from nearby Tyre, the rabbis spent their time codifying the law as they saw it, inventing problems to solve according to the principles they evolved from these laws, adding a strong element of what they would like the laws to be, and making the results known to the nonacademic public.”22 Goodman and those who make the same comparison in his wake see the rabbis as jurists primarily because their activity of creating law and especially codifying law resembles that of the Roman jurists and because the finished products of their work, the Mishnah and the Talmud, resemble law collections produced by Roman jurists.23
Additional evidence throughout the Mishnah suggests further similarities between the rabbis’ and the Roman jurists’ typical activities. Rabbis are often depicted as masters teaching or interacting with their disciples, or as disciples learning from their masters. Similarly, rabbis of presumably equal standing are often depicted engaging in legal debate and discussion with one another.24 Each of these types of academic interaction mirrors similar academic activities of Roman jurists.25
Summing up the Mishnah’s evidence: the rabbis are typically depicted as jurists who issue opinions on matters of Jewish law in response to ambiguities arising in cases, who codify the law they create, who teach disciples, and who debate matters of law.
While the rabbinic legal role as pictured is strikingly similar to that of Roman jurists, there is a fundamental distinction between the two. Roman jurists at the time, like the Roman legal system in general, seem to have focused primarily on civil and family law and not sacred law. Historically, the juristic role in Rome originated with aristocratic priests who interpreted the Twelve Tables and who were also authorities on sacred law. Yet by the classical period of Roman law—which includes the second and third centuries—the secular successors of the priest-jurists dealt exclusively with civil law.26 The rabbis, in contrast, in their role as jurists in the Mishnah’s narratives, focus primarily on law that would not have been relevant in a Roman court: Judaean ritual law.27 Of seventy-six case stories and related texts in the Mishnah, only six are about civil law and six are about matters of family law not exclusive to Judaean law.28 This finding corresponds to that of Martin Goodman that the rabbis “attempted to control Jews in Galilee only in religious rather than secular matters.”29 It also correlates with Shaye Cohen’s finding that in (presumed) tannaitic (from the time of the Mishnah) case stories throughout the entire rabbinic corpus, only 4.4 percent of cases deal with civil law.30
To be sure, rabbinic law included in the Mishnah encompasses ritual law and civil (and criminal) law—all the areas of law already found in the Torah. In the Mishnah, rabbis frequently have opinions in all these areas of law; occasionally, they are even depicted issuing opinions on civil or family law cases. Yet in the vast majority of narratives that purport to describe the actual legal role played by the rabbis, this role is limited to ritual law. Thus in the Mishnah’s narrative depictions, the rabbis are not, as Goodman and Hezser suggest, jurists within the Roman legal system where their opinions would have mattered in cases adjudicated in the local courts controlled by the Romans, but jurists—styled after Roman jurists—of Judaean ritual law whose opinions mattered in the practice of Judaean ritual and in the development of Judaean law.31
This limitation of rabbinic juristic activity to the ritual sphere can best be explained by the realities of living under Roman domination. As noted at the beginning of this chapter, rabbis, as local legal experts, did not have—and could not have had—any legal jurisdiction recognized by the ruling of the Romans. Thus any decisions in these realms would not be enforceable. Similarly, rabbis could not have acted as jurists within official Roman venues. In asserting jurisprudential authority over Judaean ritual law, the rabbis (or at least the Mishnah, in its depiction of the rabbis) were laying claim to the only area of law left available by the Romans and thus that they could have controlled. Indeed, later Roman law, particularly two edicts issued by the emperors Arcadius and Honorius in the years 397 and 398, legalized or perhaps affirmed the distinction between Roman civil law and Judaean (Jewish) ritual law, and placed control over Judaean ritual law firmly in the hands of Judaeans (Jews).32 In the edict of 398 (Theodosian Code [CT] 2.1.10), these emperors require that Judaeans address Roman courts, except in matters pertaining to their “superstition” (“religion” in CT ’s commentary).33 At roughly the same time, they also ruled (CT 16.18.13) that Judaeans were obligated to follow Judaean ritual law—called “ceremonies”—as determined by ritual authorities named as “the illustrious patriarchs,” “the archsynagogues,” the “patriarchs,” “the presbyters,” and “others who are occupied in the rite (sacrament) of that religion.”34 In this sense, the Judaeans are made explicitly parallel to Christians