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^^ 
 
 MIDRASH AND MISHNAH 
 
 Jrv A STUDY IN THE 
 EARLY HISTORY OF THE HALAKAH 
 
 BY 
 
 101' 
 
 JACOB Z. LAUTERBACH,^ Ph.D. 
 
 PROFESSOR HEBREW UNION COLLEGE 
 CINCINNATI, O. 
 
 ' NEW YORK 
 THE BLOCK PUBLISHING COMPANY 
 '^ 1 9 1 6 
 
PRINTED IN ENGLAND 
 AT THE OXFORD UNIVERSITY PRESS 
 
 w 
 
 HisUaK 
 
TO THE MEMORY 
 
 OF 
 
 MY FATHER 
 
MIDRASH AND MISHNAH 
 
 A STUDY IN THE EARLY HISTORY OF THE 
 HALAKAH 
 
 I 
 
 The teachings of the Halakah, as preserved to us in 
 the tannaitic literature, have been given by teacher to 
 disciple and transmitted from generation to generation in 
 two different forms, namely, Midrash and Mishnah. The 
 one, Midrash, shortened from 'Midrash Torah',^ represents 
 the Halakah as an interpretation and exposition of the 
 Torah. It teaches the Halakah together with its scriptural 
 proof, that is, in connexion with the passage from the 
 Pentateuch, on which it is based or from which it can 
 be derived, thus forming a halakic commentary to the 
 written law contained in the Pentateuch. This form is 
 especially used in our halakic Midrashim, Sifra, Sifre, and 
 Mekilta, but it is also found in some parts of the collections 
 
 1 The term CIID from tyiT 'to search, inquire, investigate', means 
 'research, inquiry', and min t^niD accordingly means an inquiry into 
 the meaning of the Torah, an exposition of all laws and decisions which 
 can be discovered in the words of the Torah. In this sense the term 
 ' Midrash Torah ' is used in the Talmud (b. Kiddushin 49 b) where it 
 designates the halakic interpretation or exposition of the Torah. As we 
 now have many Midrashim to the Torah of a haggadic character, the term 
 Midrash Torah would be too indefinite to designate an halakic exposition 
 of the Torah. A haggadic exposition of the Torah would also be a Midrash 
 Torah. The more specific term Midrash Halakah is therefore now used 
 to designate a halakic interpretation of the Torah. See the writer's 
 article ' Midrash Halakah ' in the Jewish Encyclopaedia, VHI, pp. 569-72. 
 L. B 
 
2 MIDRASH AND MISHNAH 
 
 of our Mishnah and Tosefta, as well as in many so-called 
 Midrash-Baraitot scattered in both the Palestinian and the 
 Babylonian Talmud. The other form, the Mishnah, repre- 
 sents the Halakah as an independent work, giving its dicta 
 as such, without any scriptural proof, and teaching them 
 independently of and not connected with the words of the 
 written law. For this reason the Mishnah is also designated 
 as ' Halakah ' or in the plural ' Halakot ', that is, merely 
 rules or decisions. This form is especially used in our 
 collections of the Mishnah and the Tosefta, but it is also 
 found in many Baraitot scattered in the Talmud and in 
 some parts of our halakic Midrashim.^ (See D. Hoffmann, 
 Ztir Einleitung in die halachischen Midraschiin, Berlin, 
 1887, p. 3.) 
 
 Of these two forms of teaching the Halakah, the 
 Midrash is the older and the Mishnah the later. The 
 Midrash was the original form, and was used in the earliest 
 times, in the very beginnings of the Halakah. This is 
 quite self-evident, as the Midi'ash was in reality the origin 
 of the Halakah. The dicta of the Halakah had their 
 source in the Midrash Torah, i.e. an inquiry into the full 
 meaning of the written law from which alone the earliest 
 Halakah derived its authority. 
 
 The returned Babylonian exiles, constituting the new 
 Jewish community, reorganized by Ezra and Nehemiah, 
 accepted the written Torah, so to speak, as their constitu- 
 tion. They entered into a covenant by oath, to keep and 
 follow the laws of Moses as contained in the book read 
 
 2 As the difference is only in form, it is not surprising to find that very 
 many of the Halakot are cast in both forms. Very often the same Halakot 
 which are found in the halakic Midrashim together with their scriptural 
 proofs are also found in the Mishnah and Tosefta without scriptural proofs 
 as independent Halakot. 
 
MIDRASH AND MISHNAH 3 
 
 to them by Ezra (Neh. 8 and lo. 30). The Book of the 
 Law, therefore, as read and interpreted by Ezra, was for 
 them the only authority they were bound to follow. 
 Whatever was not given in the book, they were not bound 
 to accept. All the religious practices and the time- 
 honoured customs and even the traditional laws, if there 
 were such, had to receive the sanction of the written Law 
 in order to be absolutely binding upon the people. This 
 means, that the practices, customs, &c., had to be recog- 
 nized as implied in the written Law or contained in its fuller 
 meaning. The teachers, therefore, interpreted the written 
 Law so as to include in it or derive from it all those 
 customs and practices. Thus, the teachings of the Halakah 
 (for all such rules, customs, practices, and traditional laws 
 constituted the Halakah) had to be represented as an 
 interpretation or an exposition of the written Law. This, 
 as we have seen above, means, to be given in Midrash-form. 
 It is expressly stated of Ezra that he explained and 
 interpreted the Torah to the people, and that he set his 
 heart to search (B'm?) the meaning of the Law, to 
 interpret it, and to teach in Israel statutes and judgements 
 (Ezra 7. 10). We learn from this, that Ezra taught only 
 the Book of the Law with such interpretations as he could 
 give to it. His successors, the Soferim, who were the 
 earliest teachers of the Halakah, did the same. They gave 
 all their teachings merely as interpretations to the Book of 
 the Law. Indeed, the very name Soferim was given to 
 them because it characterized their manner of teaching. 
 This name D^SID is derived from nQD 'the Book'. It means 
 ' Bookmen ', and it designated a class of people who occupied 
 themselves with the Book of the Law, who interpreted it 
 and who based all their teachings upon this book exclu- 
 
 B a 
 
4 MIDRASH AND MISHNAH 
 
 sively (Frankel, Hodegetica in Mischnam, p. 3, and Weiss, 
 Dor, I, p. 47). 
 
 For a long period this Mid rash-form was the only form 
 used in teaching the Halakah. This is confirmed by reh'able 
 traditions reported to us in Rabbinic literature. One such 
 report is contained in the following passage in the Pal. 
 Talmud (Moed katan III, 7, 83'') : 
 
 noN nnin niyi niai'n hjb'B' ^"2 nox n'ptn Pnan TD^n inrs 
 
 ' Who is to be considered a scholar ? Hezekiah says, 
 One who has studied the Halakot as an addition to and in 
 connexion with the Torah.^ Said to him R. Jose, What 
 you say was [correct] in former times, but in our day, even 
 [if one has studied merely detached] Halakot, [he is to be 
 regarded as a scholar].' Here it is plainly stated that in 
 earlier times (^It^N-a) the only form of teaching Halakot 
 
 5 The term IIJ/I means ' addition ', as, for instance, in the phrase : 
 Nip? 115)1 mini ' Is it necessary to mention the custom in Judea as an 
 addition to the law indicated in the Scriptures?' (b. Kiddushin 6a). It is 
 also found in the plural form, nniDl ' additions ' (b. Erubin 83 a). The 
 expression miD 11SJ1 here means, therefore, as an addition to the Torah, 
 i. e. to teach the Halakot not independently but as additions to the passages 
 in the Torah from which they are derived. In almost the same sense it is 
 also interpreted by the commentator Pne Mosheh, ad loc. 
 
 It should also be noticed that in b. Kiddushin 49 a Hezekiah says that 
 to be called a student (n31B') it is enough if one has studied merely detached 
 Halakot. This, however, does not contradict his saying in our passage in 
 the p. Talmud. For D3n "Ii»7n is a scholar of a higher degree of learning. 
 From b. Megillah 26 b it is evident that the student called mX!^ is not as 
 advanced as the scholar called Dan I^D^Tl. To be considered a scholar, 
 such as is designated by the name Din TiD^n , Hezekiah tells us, one must 
 study the Halakot in the Midrash-form. For even after the Mishnah-forra 
 had become popular, the Midrash was considered the proper form to be 
 used by advanced scholars. See Guttmann, Zur EinkHung in die Halakah, 
 Budapest, 1909, p. 20. 
 
MIDRASH AND MISHNAH 5 
 
 was as an addition to and in connexion with the written 
 Law, that is to say, in the Midrash-form. In those days, 
 therefore, one could not acquire a knowledge of the 
 Halakah, i. e. become a scholar, except by learning the 
 Midrash, for the very good reason that the halakic 
 teachings were not imparted in any other form. 
 
 Sherira Gaon who no doubt drew upon reliable sources 
 likewise reports in his Epistle (Neubauer, M. J., ch. I, p. 15) 
 that ' in the earlier period of the second temple, in the 
 days of the earlier teachers, all the teachings of the Halakot 
 were given in the manner in which they are found in our 
 Sifra and Sifre ', that is, in the M.irash-form* Modern 
 scholars ^ have, accordingly, recognized it as an established 
 historic fact that the Midrash was originally the exclusive 
 form in which all teachings of the Halakah were given. 
 
 Not only were those Halakot which were derived from 
 some scriptural passage by means of interpretation taught 
 in Midrash-form, that is to say in connexion with the 
 passages which served as proof, but also such Halakot 
 and teachings as were of purely traditional origin— rules, 
 practices, and customs that had no scriptural basis at all 
 were likewise taught in this manner. The latter were taught 
 in conjunction with some scriptural passage with which 
 they could in some manner be connected, or together with 
 certain written laws to which they were related, either as 
 
 * The passage in the letter of Sherira Gaon reads thus : '"ISDI N1SD1 
 
 ^jc K-npoa x-ipj)oi ''Nip3 Nri3^''n ifm p''ni \r\yi ixipn '■tfm 
 pn^ '':n iin smiN |nn DiDij ''NKp pa-n .T'Dva. They taught 
 
 'them', i.e. the Halakot, only in the form used in our Sifra and Sifre, 
 i. e. Midrash. 
 
 6 N. Krochmal in More Nebuke Ha-Zeman, porta XIII, Lemberg, 1851, 
 pp. 166-7 '' Z. Frankel in Hodegetica in Mischnam ; Weiss, Dor Dor we-Dorshow 
 and Mabo la-Mechilta; Oppenheim, 'Toledot ha-Mishnah' in Beth Talmud, 
 II ; D. Hoffmann, Die erste Mischnah, Berlin, 1882 ; and others. 
 
6 MIDRASH AND MISHNAH 
 
 corollary or modification. (See D. Hoffmann, Die erste 
 Miscknah, BexWn, i88a, pp. ,5-7.) This procedure was 
 necessary, because the only recognized authority was the 
 written Book of the Law which the teachers used as their 
 text-book in teaching. However, in teaching out of this 
 text-book, they gave not only the meanings of words and 
 the explanations of each written law, but also additional 
 rules as well as modifications to some laws. All of this 
 may be included in an exposition (B'mo) of the Torah and 
 could properly be taught in connexion with the text. 
 Thus the Midrash-form could continue to be in exclusive 
 use for teaching the Halakah, even after the latter, in the 
 course of time, came to include traditional laws and 
 customs, as well as new institutions and decrees issued and 
 proclaimed by the teachers themselves in their capacity as 
 religious authorities.'' 
 
 The Mishnah-form, on the other hand, is of a much 
 later date. ' It was introduced a long time after the 
 Midrash-form "^ and was used side by side with it. At 
 
 ^ Weiss, Mabo la-Mechilia, p. iv, remarks about the Soferim : PP33E}' 
 
 ppTini m^wn D-iipn ntrx onm m "hb^ Nipcb oriTEJi DDinn. 
 
 Although the instance mentioned by him as proof for his statement is not 
 a teaching of the Soferim (see below, note 55), yet the statement as such 
 is correct. The Soferim or those who only taught in the Midrash-form 
 could include in their teachings altogether new laws and decrees, issued 
 by themselves as religious authorities, by connecting them with the 
 scriptural laws. Only we may assume that it rarely happened that they 
 taught a traditional law or a decree of their own merely in connexion with 
 some scriptural law. In most cases, the Soferim, who had charge of the 
 text of the books of the law, could manage to indicate in the text itself, 
 by means of certain signs and slight alterations, any traditional custom 
 or decree of their own. Thus, these same decrees could be taught as 
 interpretations of the written law. See N. Krochmal, op. cit., p. 167. 
 Compare also below, notes 36 and 37. 
 
 ■' Georg Aicher {^Das Alte Testament in der Mischnalt, Fr.-i.-Br., 1906, 
 pp. 165 fr.) stands alone in the assumption that the Mishnah is older than 
 
MIDRASH AND MISHNAH 7 
 
 no time did the Mishnah-form become the exclusive 
 method for teaching the Halakah, because the Midrash 
 never ceased to be in use.^ At just what date this 
 Mishnah-form was introduced, that is to say, just when 
 the teachers of the Halakah began, for the first time, to 
 teach Halakot independently of the written law, has, to my 
 knowledge, not yet been ascertained. Sherira Gaon who, 
 as we have seen, informs us that at some period in earlier 
 times the Midrash-form was the only one in use, does not 
 state exactly how long that period lasted, and does not 
 mention when the Mishnah-form was introduced. Neither 
 is there any other gaonic report to tell us when this 
 happened.^ Hoffmann {op. cit., pp. 13-13) states that, 
 according to the views held by the Geonim, the Mishnah- 
 form was first introduced in the days of Hillel and 
 Shammai, but he fails to bring proof for this statement. 
 To my knowledge, there is no foundation in gaonic 
 literature for the views ascribed by Hoffmann to the 
 Geonim. Hoffmann bases his theory on the spurious 
 
 the Midrash. This cannot be maintained. His statement (p. 64) that 
 ' the appearance of scriptural proof in connexion with the Halaltah was due 
 to the radical changes effected by the catastrophe of the year 70 ', hardly 
 needs any refutation. The many Halal^ot in the Midrash form given by 
 teachers in the time of the Temple as well as the disputes between the 
 Sadducees and Pharisees, hinging upon different interpretations of scriptural 
 passages as bases for their respective Halakah, ought to have shown Aicher 
 to what extent Midrash was used before the year 70. 
 
 8 We must emphasize this fact against the theory advanced by Weiss 
 and Oppenheim and also by Jacob Bassfreund in his Zur Redaction der 
 Mischnah (Trier, 1908, pp. 19-24), that there was a time when the Midrash- 
 form was altogether abandoned, and the teachings of the Halakah given 
 exclusively in Mishnah-form. We shall see that this theory is untenable 
 (below, notes 15, 22, and 53). 
 
 ' The account given in the letter of Sherira stops very abruptly. See 
 the discussion at p. 108 of this essay. 
 
8 MIDRASH AND MISHNAH 
 
 responsum found in Shaare Teshubak, No. 20, and ascribed 
 to Hai Gaon,^" in which the following passage is found : 
 
 i»3 njtj>o mo niND cc vn jptn ^r\ ij? um he'd nice vn 
 nijiyn pDcnji tavon: ni'''si ij^n [di 'yDa hb'd^ n's".! D:njt5' 
 nmo ntJ'B' si's 'xdb'i i'i'no upn Ni)! min h^ mu3 rciim 
 
 ' Know, that from the days of Moses our Teacher until 
 Hillel the Elder, there were six hundred orders of Mishnah 
 just as God gave them to Moses on Sinai. However, from 
 the time of Hillel on the world became impoverished, and 
 the glory of the Law was diminished, so that, beginning 
 with Hillel and Shammai, they arranged only six orders.' 
 It is evident that this responsum cannot be taken to 
 represent a reliable gaonic tradition, as it is apparently 
 based on the haggadic passage in Hagigah 14 a, and is 
 accordingly of merely legendary character. Aside from 
 this, the passage does not say what Hoffmann has read 
 into it. It does not even deal with the origin of the 
 Mishnah-form. If anything, we can see from this respon- 
 sum that its author, quite to the contrary, assumed that 
 the Mishnah-form was very old, and that it was given to 
 Moses on Sinai.^^ He deals merely with the origin of six 
 
 '" This responsum had been added by some later hand to the responsa 
 of Hai Gaon, but does not belong to the Gaon. Comp. Harkavy, Studien 
 und Mitteilungen, IV, p. xiv. The fact that this report is repeated in 
 Seder Tannaim we-Amoraim, (Breslau, 1871, p. 29) and in Sefer Hakanah, 
 p. 81 b, and in S. Chinon's Sefer Kritot (Book Yemot Olam, Amsterdam 
 1709, p. 20 a) does not in the least alter its legendary character and cannot 
 make it more reliable, for the authors of all these works drew from one and 
 the same source. This source cannot be of a more reliable character than 
 the Midrash Abkir, from which the Yalkut (Genesis, sec. 42) quotes the 
 statement that Methuselah studied 900 orders of Mishnah, pilS xhxSWQ 
 
 nat^D niD niND 'd njic n\Ti nin iioj. 
 
 " The belief that the Mishnah was given to Moses on Sinai is repeatedly 
 
MIDRASH AND MISHNAH 9 
 
 orders of Mishnah which he assumed to have been extant 
 in the days of Hillel and Shammai. These six orders 
 were in his opinion but a poor small remnant of the six 
 hundred orders which Moses received from God on Sinai 
 and which were extant till the days of Hillel when the 
 world became impoverished and the glory of the Torah 
 diminished. Hoffmann arrives at his interpretation of this 
 responsum by arbitrarily giving two different meanings to 
 one and the same term used by the author twice in one 
 sentence. He states (p. 13) that when the Gaon speaks of 
 the ' six hundred orders of Mishnah ', he is using the term 
 ' Mishnah ' in a broad sense to designate traditional law in 
 the Midrash-form and not in the Mishnah-form, but when 
 the Gaon speaks of the reduced ' six orders ' extant in the 
 days of Hillel and Shammai, he uses the term ' Mishnah ' 
 in a narrow sense to designate only independent Halakot 
 in the Mishnah-form. This distinction is extremely arbitrary. 
 Furthermore, when Hoffmann concludes his argument with 
 the remark {ibid., p. 13) that 'No doubt the six orders of 
 Mishnah introduced in the days of Hillel and Shammai 
 were, like our present Mishnah, composed in the form of 
 independent Halakah, and by this new form were distin- 
 guished from the earlier form of teaching ', he no longer 
 
 expressed in the Haggadah. See b. Berakot5a and p. Hagigah I, 8, 76 d. 
 In the Pirke de-Rabbi Eliezer, ch. xlvi, it is said that during the forty days 
 which Moses spent on the mountain, receiving the Law, he studied the 
 Scriptures (NIpD) in the daytime and Mishnah at night. In Pesikta 
 Rabbati V (Friedmann, p. 14 b) it is said that Moses wished to have the 
 Mishnah written, but God told him that in order to distinguish Israel from 
 other nations it was better that the Mishnah should be given to Israel 
 orally, so that the other nations should not be able to claim it for themselves. 
 See also Tanhuma, Ki-Tissa (Buber, pp. 58b and 59a), and p. Hagigah, /. c. 
 The author of our responsum had as his authority such haggadic sayings 
 when he spoke of the Mishnah which God gave to Moses on Sinai. 
 
lO MIDRASH AND MISHNAH 
 
 gives the views of the author of the responsum, but his 
 own. And these views are absolutely wrong.^^ 
 
 Thus we see that there is no mention in gaonic literature,^^ 
 of the time when this innovation in the form of teaching 
 the Halakah took place. Neither is there any report in 
 talmudic^* or gaonic sources about the cause of this 
 innovation. We are not told why it was necessary or 
 desirable to introduce a new form of teaching Halakah 
 alongside of the older Midrash-form. 
 
 Modern scholars have attempted to answer these 
 questions ; both to fix the date and to give the reasons 
 for this innovation in the method of teaching. However, 
 the various theories advanced by these scholars are all 
 unsatisfactory. They are the result of mere guess-work — 
 without solid proof or valid foundation. It will be shown 
 
 12 There is no doubt that at the time of Hillel and Shammai there were no 
 Mishnah-coUections like our Mishnah. The responsum in Shaare Teshubah, 
 § 187, which tells us that when a certain Gaon died they found that he had 
 the six orders of the Mishnah of the days of Hillel and Shammai, which had 
 been hidden away, is spurious and legendary. See S. D. Luzzatto, Beth 
 lia-Osar, pp. 55b-56a. Although there were in the times of Hillel and 
 Shammai collections of Halakot composed in Mishnah-form, this form was 
 not new to them and could not be the characteristic which distinguished 
 them from the form of teaching used before. For, as we shall see, there 
 had been even before Hillel and Shammai collections of independent 
 Halakot in the Mishnah-form. And if Hillel himself composed a Mishnah- 
 collection, he did not arrange it in order, and did not divide it into tractates 
 as Pineles {Darkah shel Toralt, pp. 8-9) and Bassfreund {Zur Redaction der 
 Mischnah, p. 25) assume. The arguments brought forward by the latter to 
 prove that Hillel's Mishnah-collection was arranged and divided into tractates 
 are not convincing. 
 
 '^ On Saadya's opinion see further below, pp. iisff. 
 
 " There is, however, as we shall see in the course of this essay, a report 
 in the Talmud stating until when the Midrash-form was in exclusive use. 
 This talmudic report has been overlooked or else not correctly understood, 
 for not one of the scholars dealing with the problem of fixing the date of 
 the beginning of the Mishnah-form has referred to it. 
 
MIDRASH AND MISHNAH II 
 
 that some are based upon inaccurate reasoning, and all of 
 them are in contradiction to certain established historic 
 facts. 
 
 We have already seen that the theory which Hoffmann 
 ascribes to the Geonim has no foundation in gaonic 
 literature and that it is altogether Hoffmann's theory. 
 But, no matter whose it is, the theory itself cannot be 
 maintained.-^' In the first place, there were Mishnah- 
 collections before the time of Hillel and Shammai, as 
 Rosenthal has proved (Ueber den Zusammenhang der 
 Mischnah, Erster Teil, ate Aufl., Strassburg, 1909). In the 
 second place, the introduction of a new form necessarily 
 precedes any collection of Halakot composed in this new 
 form. It must be quite plain that there were individual, 
 detached Halakot taught in the Mishnah-form (and not in 
 the Midrash-form) before any collection of such detached 
 Halakot could be made. Accordingly, if we assume with 
 Rosenthal {op. cit., p. iii) that a collection of such inde- 
 pendent Halakot in the Mishnah-form was already arranged 
 in the time of Simeon ben Shetah, we have to go still farther 
 back in fixing the time when the teachers first, began to 
 separate the Halakah from its scriptural proof and teach it 
 independently, as Mishnah. This would bring us to about 
 one hundred years before the time of Hillel and Shammai. 
 Not only is this theory of Hoffmann wrong in respect to 
 
 ^5 Compare also Bassfreund (pp. cit., pp. 18 ff.) who likewise seeks to 
 refute Hoffmann's theory. Some of Bassfreund's arguments, however, are 
 not sound. He is altogether wrong in assuming that for a long time before 
 Hillel the Mishnah was the exclusive form used in the teaching of the 
 Halakah, and that Hillel was the first to reintroduce the Midrash-form. 
 He confuses the development of the Midrash methods which were furthered 
 by Hillel with the use of the Midrash-form which had no need of being 
 introduced by Hillel since it was never abandoned (see above, note 8, and 
 below, note 22). 
 
13 MIDRASH AND MISHNAH 
 
 the date given for the introduction of the Mishnah-form, 
 but it is also unsatisfactory in regard to the cause of this 
 innovation. 
 
 According to this theory, the Mishnah-form was intro- 
 duced in order to assist the memory in mastering the 
 contents of the traditional law.^^ However, it is difficult 
 to see how the teachers could have considered the new 
 form of greater aid to the memory than the old form. 
 This new form is on the contrary quite apt to make it 
 more difficult for the memory. It seems to us that it is 
 less of a task for the memory to retain Halakot taught 
 in the Midrash-form. The written Law, being the text- 
 book, each passage in it, as it is being read, helps, by 
 mental association, to recall all the halakic teachings 
 based upon it. On the other hand, it is much harder 
 to remember detached Halakot given in an independent 
 form, especially when they are not arranged systematically 
 or topically but merely grouped together. This, we must 
 keep in mind, was actually the mode of arrangement used 
 in the earlier Mishnah collections.^^ 
 
 Hoffmann himself must have felt that this theory was 
 not satisfactory, for later in his book he advances another 
 
 '' The same reason is also given by Frankel and Weiss. They all seem 
 to have been influenced by the haggadic sayings found in the Talmud, 
 sayings which exaggerate the number of Halakot known to former 
 generations. 
 
 " Hoffmann makes the mistake of assuming {pp. cit., pp. 13, 15, and 48) 
 that simultaneously with the separation of the Halakot from their scriptural 
 basis came the grouping of such detached Halakot into orders and treatises, 
 as we have them. But this is absolutely wrong. The earlier Mishnah went 
 through many different forms of grouping before it was finally arranged 
 according to subjects and divided into treatises and orders. See the writer's 
 article in the Jewish Encyclopaedia, VII, p. 6n. The opinions expressed 
 by the writer there on page 610 (following Hoffmann) are hereby retracted. 
 
MIDRASH AND MISHNAH I3 
 
 and altogether different theory {op. cit., p. 48). According 
 to this second theory, the innovation was not made for the 
 purpose of aiding the memory, and was not made in the 
 days of Hillel and Shammai. Here Hoffmann assumes 
 that the Mishnah-form was first introduced in the days 
 of the later disciples of Hillel and Shammai. The purpose 
 of the innovation, he explains, was to maintain the unity of 
 the Halakah by minimizing the differences of opinion and 
 eliminating the disputes about the halakic teachings which 
 arose among these very disciples of Hillel and Shammai. 
 These disputes, Hoffmann tells us, were in many cases only 
 formal, namely, concerning the underlying Midrash or the 
 scriptural proof for the halakic teaching. The traditional 
 Halakah, as such, was agreed upon by all the teachers. 
 That is to say, there was no dispute about the transmitted 
 rules and decisions which all the teachers received alike. 
 The teachers, however, often did disagree as to the 
 scriptural passages and their interpretations whereon these 
 received halakic decisions were based. One teacher would 
 derive a certain Halakah by interpreting a given passage 
 in a certain manner. Another teacher would deduce the 
 same Halakah from another passage, or even from the 
 same passage but by means of another interpretation. 
 Thus, as long as the Halakah was taught only in Midrash- 
 form there existed many differences of opinion between 
 the teachers, not in regard to the halakic decisions or 
 rules in themselves but in regard to their midrashic proof 
 and support. The teachers of those days who were very 
 anxious to maintain harmony among themselves and 
 unanimity in their teachings therefore decided to separate 
 the Halakah from the Midrash and to teach it inde- 
 pendently of the scriptural proof or support. In other 
 
14 MIDRASH AND MISHNAH 
 
 words, they introduced the Mishnah-form— the Halakah 
 as an independent branch of learning. By this innovation 
 all the differences of opinion and disputes about the 
 midrashic proof necessarily disappeared. Thus uniformity 
 was restored in teaching the Halakah, and harmony was 
 established among the teachers. 
 
 This second theory of Hoffmann is even less tenable 
 than the first. In the first place, it fixes the date for the 
 introduction of the Mishnah even later than the first theory. 
 Consequently, in this respect it is refuted by the same 
 arguments that were brought against the first theory. 
 We have seen above that there were Halakot in Mishnah- 
 form, even collections of such Halakot, at a much earlier 
 date. Furthermore, the explanation of the cause for the 
 innovation put forth in this theory presents a palpable 
 error in reasoning. It presupposes that the decisions of 
 the Halakah, as such, were older than their midrashic 
 connexion with the scriptures, and that at some earlier 
 time they had been transmitted independently of scriptural 
 proofs. For this reason the teachers could well be 
 unanimous in accepting the Halakah and yet find cause for 
 dispute as to methods of proving certain halakic decisions 
 from the scripture by means of the Midrash. But this 
 means nothing else than that there were some Mishnahs, 
 that is, independent Halakot before the disputes about the 
 scriptural proofs caused their separation from the Midrash. 
 This line of reasoning contradicts itself. It sets out to find 
 the cause for the first introduction of the Mishnah-form, 
 but assumes that before this introduction some Halakot 
 had already been transmitted in Mishnah-form. In other 
 words, this so-called first introduction was really not a first 
 introduction. 
 
MIDRASH AND MISHNAH 15 
 
 If they had taught only in Midrash-fbrm, the alleged 
 evil results which the Mishnah-fofm, according to Hoffmann, 
 was to remedy could never have arisen. It would have 
 been impossible for the teachers to agree upon a halakic 
 decision, and at the same time to disagree about its 
 scriptural proof. Since every teacher received each 
 Halakah in the same Midrash-form, that is, as an in- 
 terpretation of, or connected with, a certain scriptural 
 passage, every one who remembered the decision must 
 have remembered the form in which he received it, that 
 is, the scriptural passage with which it was connected. 
 It is very improbable that a teacher remembering the 
 decision, but having forgotten the scriptural basis, would 
 have supplied another scriptural proof therefor, and then 
 disputed with his colleagues who remembered the right 
 passage on which this Halakah was based. If he did 
 forget the passage for which the Halakah was an inter- 
 pretation, the mere mention of that passage by his colleagues 
 must have brought it back to his memory. It is evident 
 that there could be no universal acceptance of a Halakah 
 together with disputes regarding its proofs, unless such a 
 Halakah had been taught apart from its proof. This, 
 however, was not done, as long as the Midrash-form was 
 in exclusive use, that is, as long as the Halakah was merely 
 taught as a commentary on the text of the Law.^* 
 
 ^8 This would hold true even if we should believe in the genuineness 
 of the so-called '•JiDD HCD^ nisiri, that is, that there had been given oral 
 laws to Moses on Sinai and transmitted independently of the written law. 
 For, as Hoffmann himself states {op. cit., p. 7), even all the traditional 
 teachings were taught together with the scriptural laws and connected 
 with them in the Midrash-form. All through the period of the Soferim, 
 and according to Hoffmann till the time of the disciples of Hillel and 
 Shammai, such traditional laws would somehow be connected with the 
 Scriptures. The mental attitude of the teachers was not iii the direction 
 
l6 MIDRASH AND MISHNAH 
 
 Quite as unsatisfactory is the theory advanced by 
 Z. Frankel {Hodegetica in Mischnam, pp. 6, 7, and 10). 
 According to this theory, the innovation of teaching de- 
 tached Halakah in the Mishnah-form was made by the 
 last group of Soferim.^' This was done to overcome three 
 difficulties which Frankel tells us existed in those days. 
 In the first place, the halakic decisions based upon the 
 individual passages had increased to such an extent that 
 the task of studying and teaching them in the Midrash- 
 form became very difficult. In the second place, the 
 absence of inner logical connexion between the individual 
 dicta of the Halakah made its study a work of mere 
 
 of separating such traditional laws from the scriptural passages with which 
 they had for centuries been connected. This would have remained their 
 attitude even if they had realized that such a connexion was merely artificial 
 (see below, note 27). No differences of opinion were therefore possible as to 
 how such traditional laws were to be connected with the Scripture. 
 
 It should be noted that Hoffmann seems to have subsequently abandoned 
 both his theories. In his introduction to his translation of the Mishnah, 
 Seder Nezikin (p. x, note 3), he states that according to the Palestinian 
 Talmud the so-called Number-Mishnahs were already compiled and redacted 
 by the men of the Great Synagogue. He refers to the passage in Shekalim, 
 V, 48c, which, like Weiss and Oppenheim, he misinterprets. See below, 
 note 26. 
 
 '' N. Krochmal {pp. cil., pp. 174-5) also assumes that even the last of 
 the Soferim began to teach independent Halakot (so also Pineles, Darkah 
 shel Torah, pp. 8-9). Like Frankel, Krochmal also gives as the reason the 
 increased number of the Halakot and new decisions which could no longer 
 be connected with the Scripture in the form of the Midrash. There is, 
 however, a great difference of opinion between Krochmal and Frankel as to 
 dates. Krochmal extends the period of the Soferim until about 200 b. u., 
 assuming that the Simon mentioned in Abot as ' one of the last survivors 
 of the Great Synagogue' is Simon II, the son of Onias II. Krochmal 
 therefore designates him as the last of the Soferim and the first of the 
 Mishnah teachers, the Tannaim (loc. cit., p. 166). According to Frankel 
 the last member of the Great Synagogue was Simon the Just I, about 300 b. c. 
 This Simon, then, was the last of the Soferim in whose days the Mishnah 
 was introduced (Hodegeiica, pp. 68 and 30-31). 
 
MIDRASH AND MISHNAH I^ 
 
 mechanical memorizing — a very tiresome and repulsive 
 procedure for the intelligent student. In the third place, 
 the Pentateuch gives the laws pertaining to one subject in 
 many dififerent places. As the Midrash follows the Penta- 
 teuchal order, there could be no systematic presentation of 
 all the laws on any one subject. The laws on one subject, 
 for instance, Sabbath, being derived from widely separated 
 passages in the Pentateuch, had to be taught piecemeal, 
 each decision in connexion with its scriptural basis. For 
 all these reasons, Frankel tells us, the last group of the 
 Soferim decided to separate the Halakot from their 
 scriptural bases and to teach them in the new Mishnah- 
 form systematically arranged according to subjects. 
 
 Like Hoffmann, Frankel assumes that the plan of 
 arranging the Halakot according to subject-matter was 
 coincident with the very introduction of the Mishnah-form, 
 so that the very earliest Mishnah collections must have 
 been arranged topically. This, as we have seen, is in- 
 correct. The topical arrangement of the Mishnah is of 
 later date. It was preceded by other forms of grouping 
 peculiar to the earlier Mishnah collections. Fi-ankel him- 
 self credits R. Akiba with the systematic arrangement of 
 Halakah according to topics (op. cit., p. 115). He also 
 qualifies by the following remarks his former statement 
 concerning the Soferim and their arrangement of the 
 Halakah according to subjects : ' We have stated in the 
 preceding chapter that the teaching [of the Halakah] 
 according to subjects began at the end of the period of 
 the Soferim. Nevertheless, a long time undoubtedly 
 passed before all [the Halakot] that belonged to one 
 subject were brought together under one heading. Very 
 often while dealing with one subject they would [not keep 
 L. C 
 
l8 MIDRASH AND MISHNAH 
 
 Strictly to it but] drift to another and pass from one 
 halakic theme to another . . . . R. Akiba, however, began 
 to arrange the old Halakot to put each in its proper place 
 and [under the topic] to which it belonged.' ^° If, however, 
 the order in the Mishnah before R. Akiba was not strictly 
 according to subjects, as Frankel here admits, and if some 
 Halakot bearing on one subject would often be treated 
 among Halakot dealing with another subject, what ad- 
 vantage was there then in separating the Halakot from the 
 Midrash and teaching them in the Mishnah-form ? The 
 shortcomings of the Midrash-form, according to Frankel, 
 consisted in the fact that the Halakot of one subject could 
 not be taught connectedly but were interrupted by Halakot 
 belonging to another subject. However, according to 
 Frankel's own statement, the same defect was inherent 
 in the Mishnah-form up to the time of Akiba. 
 
 Taking up another statement of Frankel, it seems 
 difficult to realize why the study of the written laws 
 together with all the Halakot derived from them, as 
 
 ^b 
 
 IS 
 
 done in the Midrash-form, should be such dry mechanical 
 work of the memory, and so repulsive to the intelligent 
 student. One would be inclined to think that the study 
 of the Halakot in the abstract Mishnah-form, especially 
 when not arranged systematically, would indeed be a far 
 more mechanical work and far more tiresome for the 
 student. Again, according to Frankel, it was the alleged 
 lack of inner logical connexion between the single Halakot 
 
 '" FiiD ij'nnn o^mvn a"y -iv^bn Diipn p-\s2 iJina nna nam 
 D*3"sj'n b 13DN0 D1Q DU"! DVD'' nny paD in^ja b^a .anaion id* 
 13-c'M nr pjyn Dpoya D'cya nanni ,^m ^t nnn ina fjy ba 
 bv nirj'\T nia^nn ~iiab Sjnn 5)"ni . . , nal^nb na^nni pvb payo 
 
MIDRASH AND MISHNAH I9 
 
 which made the Midrash-foim inadequate for teaching 
 purposes. However, this absence of inner logical connexion 
 is merely alleged by Frankel, but not proved. If we should 
 even grant that in the Midrash-form the Halakot were not 
 always logically connected and coherently presented, the 
 earlier Mishnah certainly did not remedy this evil. The 
 earlier Mishnah collections were characterized by the most 
 arbitrary modes of arrangement. Halakot bearing upon 
 different themes and altogether unrelated in subject-matter 
 were often grouped together under artificial formulas. 
 Examples of these earlier modes of arrangement have been 
 preserved even in the present form of our Mishnah as 
 for instance, in the so-called Number-Mishnahs or the 
 En-ben-Mishnahs. The Midrash-form certainly established 
 a better connexion between the individual Halakot than 
 did these earlier arrangements of the Mishnah. The mere 
 fact that many Halakot belong to one and the same 
 chapter or are grouped around one and the same passage 
 of the Scriptures, establishes a better connexion between 
 them than the accident that they can all be presented 
 under one formula. 
 
 Aside from all these arguments, the fundamental position 
 of Frankel can hardly be maintained. In the time of the 
 last group of the Soferim, the halakic material could not 
 have grown to such an extent as to make it impossible 
 to use the Midrash-form and necessitate the innovation of 
 a new form of teaching. The mere volume of the halakic 
 material could by no means have brought about this change 
 of form. This is evident from the fact that our halakic 
 Midrashim, Sifra, Sifre, and Mekilta, present in Midrash- 
 form a mass of halakic material far greater in volume 
 than was extant in the days of the Soferim. Thus we see 
 
 C 3 
 
20 MIDRASH AND MISHNAH 
 
 that all the reasons which Fiankel gives for the introduction 
 of the Mishnah-form are insufficient and could not have 
 been the cause of the innovation. 
 
 In conclusion, Frankel's admission that the teachers 
 continued to use the Midrash-form even after the intro- 
 duction of the Mishnah-form ^^ is the strongest refutation 
 of his own theory. If the Midrash-form had so many- 
 disadvantages, if it was both tiresome for the student and 
 inadequate for presenting the Halakot systematically, why 
 was it not altogether abandoned ? How did the new form 
 obviate the evils of the old form if the latter continued 
 in use? 
 
 The theory propounded by Weiss in his Mabo la-Mekilta, 
 pp. iv and v, and in his Dor, I, p. 66, is somewhat of an 
 improvement upon the ideas of Frankel. Like Frankel, he 
 believes that the Mishnah-form was introduced by the later 
 Soferim, and that the reason for this change was the large 
 increase of halakic material. He avoids two of the 
 mistakes that Frankel made. In the first place, he does 
 not confuse the innovation of teaching detached Halakot 
 in the form of Mishnah with the arrangement of the 
 latter according to subjects. Nor does he assume that 
 the Midrash-form continued in use, after the Mishnah- 
 form was introduced. According to Weiss, the Midrash- 
 form was abandoned because it proved inadequate. It 
 was hard for the student to remember the great mass 
 of Halakot that existed at that time, when taught 
 in the Midrash-form. The teachers, therefore, felt the 
 need of inventing another form which would help the 
 
 " Op. cit., p. 7, he says : p:y3 DDSV^ TIT DH^ mUt^ fjN O jni 
 
MIDRASH AND MISHNAH 21 
 
 memory retain the increased number of halakic teachings. 
 This help for the memory they found in separating the 
 Halakot from their scriptural bases and in expressing them 
 in short, concise phraseology, and in arranging them 
 according to a number-formula. The saying of Simon 
 the Just, 'The world rests upon three things, &c.' (Abot 
 I, 2), and the three Halakot mentioned in Eduyot VIII, 4, 
 which according to Weiss are soferic Halakot, merely 
 reported by Jose ben Joezer, are cited by Weiss in support 
 of his theory that the Soferim taught detached Halakot 
 expressed in concise terms and arranged according to 
 number formulas. Weiss {Mabo la-Mekilta, p. v, note 7) 
 admits, however, that the innovation was unsuccessful. 
 The teachers, he tells us, soon found that the Mishnah- 
 form, although superior to the Midrash, in being more 
 easily memorized, had many other disadvantages. As 
 a result, they had to return to the older form of the 
 Midrash after they had abandoned it for a time.^^ 
 
 This admission of Weiss that the advantages expected 
 
 ''^ In this assumption, that the Midrash-form had for a long time been 
 abandoned and supplanted by the Mishnah, and that later on objections 
 to the Mishnah-form caused a return to the Midrash, Weiss is followed 
 by Oppenheim (' Ha-Zuggot we-ha-Eshkolot ' in Hashahar, VII, pp. 1 14 and 
 116), and by Bassfreund (see above, note 15). It is strange that while these 
 scholars cannot account satisfactorily for one change that really took place, 
 namely, from the exclusive use of the Midrash to the admission of the 
 Mishnah-form, they assume another change which never took place, namely, 
 a return from a supposed temporary exclusive use of the Mishnah to the 
 old Midrash. We have already seen that the Mishnah-form was never in 
 exclusive use, for the Midrash continued to be used side by side with it. 
 Consequently there could have been no return from Mishnah to Midrash. 
 But we shall see that the very reason which Weiss, Oppenheim, and 
 Bassfreund give for the return to the Midrash, namely, the opposition 
 of the Sadducees, was rather the cause for the further departure from the 
 Midrash-form and the extension of the use of the Mishnah-form (see below, 
 notes -72 and 73). 
 
22 MIDRASH AND MISHNAH 
 
 from the new form were not realized, is in itself a strong 
 argument against his theory. Further, we have seen above 
 that the necessity for aiding the memory could not have 
 been the reason for introducing the Mishnah-form. The 
 words of the scriptural text with which the Halakot were 
 connected in the Midrash-form offered sufficient help to 
 the memory. We have also seen above that in the days 
 of the Soferim the halakic material was not so large as to 
 necessitate new forms and arrangements. The Soferim 
 never gave their teachings in any other form but in the 
 Midrash, namely, as interpretations and additions to the 
 written laws. They never arranged them in any other way 
 except in the order of the scriptural passages to which 
 they belonged. The two passages, cited by Weiss, do 
 not refute this statement. The saying of Simon the Just 
 in Abot is not a halakic teaching but a maxim of the 
 same character as the other wisdom literature of that time. 
 We can draw no conclusions from it as to the form of 
 halakic teachings of that day. As for the three Halakot 
 mentioned in Eduyot, these will later be shown to have 
 been the decisions of Jose ben Joezer himself. Conse- 
 quently they do not prove anything concerning the form 
 of halakic teaching used by the Soferim. 
 
 Oppenheim ^' offers a theory that is in reality but 
 a combination of the views examined above. However, 
 he makes a very correct observation concerning the date 
 of the innovation. According to Oppenheim, the Mishnah- 
 form was first introduced during or immediately after the 
 Maccabean uprising. As a result of the persecutions 
 incident to the Maccabean revolution, the study of the 
 
 ^3 ' Tol6dot Ha-Mishnah ' in Beih Talmud, II, p. 145, and also in his 
 ' Ha-Zuggot we-ha-Eshkolot' in Hashaliar, VII, pp. 114-15. 
 
MIDRASH AND MISHNAH 23 
 
 law was neglected and the knowledge of it decreased. 
 The teachers, therefore, decided to separate the Halakot 
 from their scriptural bases and to teach them indepen- 
 dently, in order to save them from oblivion (' Toledot ha- 
 Mishnah', in Beth Talmud, II, p. 145). They chose this 
 form either because they thought that in this form it 
 would be easier for the student to remember the Halakot, 
 or because they, the teachers themselves, no longer 
 remembered the scriptural bases for many Halakot. 
 
 The first of these two reasons is identical with the one 
 given by Frankel and by Weiss, which has been found 
 insufficient. The second one is similar to the one given 
 in Hoffmann's second theory, and, as we have seen, is 
 not plausible. For, if they had not previously studied 
 Mishnah but received the Halakot only together with 
 their scriptural bases, it is hardly possible that the 
 teachers could forget the latter and yet remember the 
 former. The remembered Halakot would have recalled 
 to them the scriptural passages in connexion with which 
 they were received. 
 
 It seems that Oppenheim himself felt that neither his 
 own nor Frankel's nor Weiss's theory was sufficient to solve 
 the problem. He therefore offered another solution of the 
 problem, and this is practically a denial of the fact that 
 there is a problem. After stating that the Soferim taught 
 in the Midrash-form and those who followed them intro- 
 duced the new form of abstract Halakot, that is Mishnah, 
 he contradicts himself by adding the following remark:-* 
 ' But in my opinion there is no doubt that the Soferim who 
 taught [the Halakah] as a commentary on the Scriptures 
 
 DT' inijn N^ nnirin |D 'Ha-Zuggot we-ha-Eshkolot', I.e., p. 114. 
 
24 MIDRASH AND MISHNAH 
 
 [i.e. Midrash] also taught independent Halakot.' He then 
 proceeds to prove that the Soferim had independent or 
 abstract Halakot in the form of Mishnah.^^ According to 
 this statement there is no problem at all. We need not 
 account for any change in the form of teaching Halakah or 
 explain the reasons for the innovation of the Mishnah, for 
 there was no change and no innovation. The two forms, 
 Midrash and Mishnah, were evidently used together from 
 the earliest times, the Midrash possibly to a larger extent 
 than the Mishnah. This would indeed be the best solution 
 of the problem and would remove all difficulties. The only 
 obstacle in the way of its adoption is that it is contradicted 
 by all historic reports. It is against the tradition that in 
 earlier times all the teachings of the Halakah were given 
 in the Midrash-form only. This tradition, we have seen, 
 is indicated in the discussion of Jose and Hezekiah men- 
 tioned in the Palestinian Talmud (Moed katan) and is 
 expressly mentioned by Sherira Gaon. It is also out of 
 harmony with the generally accepted opinion that the 
 
 ^^ This is also the stand taken by Halevi who goes even further and 
 maintains {Doyofh ha-Rishonim , I, chap, xiv, pp. 204 ff.) that in the main 
 our Mishnah had already been composed and arranged by the Soferim, but 
 he does not prove his statements. At the most, his arguments could only 
 prove that there had been many Halakot and decisions in the days of the 
 Soferim, and that the earliest Tannaim in our Mishnah in their discussions 
 seek to define and explain these older Halakot and decisions. But it does 
 not follow that these Halakot and decisions were already in the days of the 
 Soferim composed in the Mishnah-form. These Halakot and decisions were 
 originally given in the Midrash-form, as definitions or interpretations of 
 written laws. The later teachers, that is, the earlier Tannaim, discussed 
 and commented upon these decisions and Halakot of their predecessors 
 which they had before them in Midrash-form. Later on, when these decisions 
 and Halakot became separated from the Midrash, they were arranged in 
 the Mishnah-collections as independent Halakot, together with all the 
 comments and explanations given to them by the Tannaim, and in this form 
 they are also found contained in our Mishnah. 
 
MIDRASH AND MISHNAH 25 
 
 Soferinij as the name implies, imparted all their teachings 
 only in connexion with the written book of the Law. It 
 is, further, against an absolutely reliable report in the 
 Babylonian Talmud which, as we shall see, tells us not 
 only that the older form of teaching the Halakah was the 
 Midrash, but also gives us the period of time during which 
 it was in exclusive use. 
 
 Thus we see that all these theories examined above have 
 not succeeded in finding a real solution for our problem. 
 None of the theories have given the exact time or the real 
 cause for the introduction of the Mishnah-form. 
 
 Probably the strangest feature of the problem is the 
 silence of the talmudic literature about this important 
 innovation. This silence is all the more remarkable when 
 we come to realize that this was not merely a change in 
 form, but an innovation that had great influence upon the 
 development of the Halakah and had great bearing upon 
 the validity of its authority. 
 
 The theory proposed in this essay offers what appears 
 to us to be a satisfactory solution for this many-sided 
 problem. In the first place it determines the exact time 
 when the innovation of teaching independent Halakot was 
 introduced. In the second place it describes the conditions 
 that compelled the teachers to make so radical a change. 
 And finally it explains why no explicit report is preserved 
 in talmudic sources regarding this great development in 
 the teachings of the Halakah. This theory I shall now 
 propound. 
 
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, Meho ha-Mishnah, Frank- 
 furt a. M., 1876, II, p. a). The haggadic saying of Rabbi 
 
MIDRASH AND MISHNAH 27 
 
 Abahu^^ (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 i Chronicles 2. 55 are identified with the 
 families of Soferim, the inhabitants of Yabez, the Tir'atim, 
 the Shim'atim, and Sukatim. In all these names the 
 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 20 a). 
 
 Oppenheim advances still another argument to prove 
 that the Soferim taught abstract Halakot. Since many of 
 the traditional laws designated as 'J'DD hb'D? nabn 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 
 
 2^ The passage in p. Shekalim reads as follows : ITli )il2ii '~\ "lOX 
 
 'm nbn2 Du^'n ciim ne'cn idiid'' ab 'n ^nnisD mmsD niinn. 
 
 Weiss (Dor, I, p. 66) refers to this saying in the words : ^31 IS^N ID^Dni 
 
 nniDD minn ns w]i Dnsionz' (D'i'pB' '-OT) imbm iioDn nn, 
 
 and Oppenheim {Hashahar,Vll, p. 114) states: inDK '1 IDK ''DljB'nUI 
 
 '131 i»nn'' vh 'n pas nnisD minn nx ib'D'^ ^zb onsiD iniN pnip vna*. 
 
 Both of them erroneously take this haggadic saying as a characterization 
 of the methods of the Soferim and as a reason for their name. 
 
28 MIDRASH AND MISHNAH 
 
 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. 2^ 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 i, a 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 terniiniis 
 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 
 
 " 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, DD"D7"n, as is claimed by some of the Rabbis of the Talmud 
 (Mena'iot 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, nninSJ' niVISl; and second, that 
 the phylacteries must be square, JTlVQlID ; also that the knot must be of 
 a certain shape; and lastly, that the letter Shin, tJ', must be impressed on 
 the outside, &c., &c. 
 
MIDRASH AND MISHNAH 29 
 
 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,^' who died about 165 b. c.^^ 
 The sayings of Simon the Just and Antigonos (Abot i, 
 a, and 3) are merely wisdom maxims and not halakic 
 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, 1N3 Dety ^V IK'S D'aityNnn DH INDB"! ^^n <3 
 NJT'naai nVCa nu^n, that ' Hlllel and Shammai were the first teachers in 
 whose name Halakot are mentioned in the Mishnah and Baraita ' {Hodegeiica, 
 p. 38) is, to say the least, surprising. We find Halakot fi-om all the four 
 preceding Zuggot. Thus a Halakah is mentioned in the name of Shemaiah 
 and Abtalion concerning the quantity of 'drawn water' (DUINB' 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''I3Jn in regard to the punishment of false witnesses 
 (Makkot 5 b). 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 VIH, 4). 
 
 29 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). 
 
30 MIDRASH AND MISHNAH 
 
 Joezer.^" 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 
 
 ^° Jose b. Joezer's authorship of these Halakot was first questioned by 
 Dr. Jacob Levy in Ozar 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 Biichler {Die Priester 
 uyid der Cidtus^ 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-coUection. How could Jose b. Joezer of Zeredah, 
 who died before r6o e. i,., 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-coUection was arranged ? Were this a real difficulty, it could easily 
 be removed by assuming with Levy (op. cit., p. 36) that the word DIB'D 
 Mn the name of was left out in our Mishnah, and that the text ought to 
 read mnV C^N ItUl'' p 'DV ^31 DIU'D T'yn '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-Sanimlung Eduyoih., 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 he. 
 
 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. 
 
MIDRASH AND MISHNAH 31 
 
 after his death some Halakot were already taught without 
 any scriptural proof, that is, in the Mishnah-form. Ac- 
 cordingly we have fiund the termimis ad qiiem 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 : ^^ niD-k^ ny ntyo nico ^i^-wh \rh n)05;Ej' niSacx b 
 vn vh i^'Ni IN'310 i3'3i na'oa min pnc^ vn nryv p ■'DV (Pnic) 
 13''a"l nti'M nmn pno^ '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 
 
 SI The correction suggested by Graetz {Monatsschrift, i86g, p. 23) to read 
 ■"DV niO"' iy 'till the days of Jose ', instead of iDT' TiO^ IJ) ' till Jose died ', 
 is very plausible. 
 
32 MIDRASH AND MISHNAH 
 
 same manner in which Moses taught, in? ''"i^aj nn noj^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 
 Midrash 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 72 b 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 : n-ii3:n ''3D r.E'Da K'-ini 2V>V& nis p^ TT'Nn 
 ' 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 ' {r\ef02 cnni atJ'i''). The report in Temurah 15 b, 
 
MIDRASH AND MISHNAH 33 
 
 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 '.^^ 
 
 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 
 
 5^ 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 
 2 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 (i Mace. i. 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. 
 
 L. D 
 
34 MIDRASH AND MISHNAH 
 
 have seen above that Sherira, in describing the period 
 during which the Midrash-form was in exclusive use, 
 employs the term ^itif cnpoa X-|p''VO, 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 ^^ the following 
 statement occurs : iT^n ono cipoa ptJ'nn hai^'' vna' nrj'D b^ 
 D3n QB' n n^n i6) 'All the traditional law (nja'D is here 
 used in its broader sense) which they used to teach in 
 the Midrash-form, pB""!!"! ITIE', 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 B'Hpon 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 
 
 55 This responsum is quoted by Epstein in his Eldad ha-Dani, pp. 7-8, 
 and more fully in Jellinek's Beth Hamidrash, 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 mnan 'aO HB'D ''SD VlCini HON. This 
 phrase, like the phrases mi3jn 'BO ntyiDa C'-liTl 1^\'' and mill inob 
 iy3"l ntJ'D3, 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. 
 
MIDRASH AND MISHNAH 35 
 
 given as interpretations of the Scripture (pB'nn ITiB*), that 
 is, in the Midrash-form. It is most probable that Sherira 
 by the term cipoa Nnp'-yo refers to the same period 
 which Zemah Gaon designates as B'npoa, 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.^* 
 
 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 
 
 ^^ It is perhaps for this very reason that the teachers until the time 
 of Jose were called DIPIDti^'S . This is correctly interpreted by Samuel 
 in the Talmud (Temurah 15 b and Sotah 47 b) to mean 13 ?3nti' tJ"X, 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, nlboB'Kn iboi IW p ''DV filOB'O, 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. 
 
 D 2 
 
36 MIDRASH AND MISHNAH 
 
 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, rninn nSD, 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,^^ 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 
 
 S5 This was the case, at any rate, in the second half of the Persian 
 period. See Wellhausen, Israelitische und Jildische Geschichte, 3rd edition 
 pp. 198 ff., and Schiirer, Geschichte, II, 4, pp. 267 ff. 
 
JIIDRASH AND MISHNAH 37 
 
 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.^** For instance, by adding or omitting a letter, 
 
 ^^ 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 text of the Torah 
 which they originally had. A tradition to this effect was current among the 
 Rabbis of the Talmud. Tlie Rabbis often refer to such changes as ' correc- 
 
38 MIDRASH AND MISHNAH 
 
 or by the peculiar spelling of a word they could bring about 
 
 tions of the Soferim^nnSID pp'D (Genesis r. LIX, 7 and Exodus r.XIII, i) 
 or DHBID ri3pn (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. 22 b, and 
 Mekilta, Beshallah, Shirah, VI, Weiss, pp. 46 b-47 a). In Tanliuma, Beshallah 
 E5 (on Exod. 15. 7) it is expressly stated that all these corrections were 
 made by the Soferim, the Men of the Great Synagogue, ''EJ'JX D'ISID ppTl 
 
 n^HJn nDJ3 ; also, iN-ip3 13^1 n^iijn nois '{yas h^ dvidb irne' nI'k 
 
 DnSID. Even if it should be granted that these statements in theTanhuma 
 are of later origin (see R. Azariah de Rossi, Meor Enayim, Imre Binah, 
 eh. XIX), it cannot be disputed that the interpretation of the term ppTI 
 O'lBlD 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 DnSID 'JlpTI, are designated in theMassorah, Oklah We-Oklah (No. 168, 
 ed. Frensdorf, p. 113), as ' corrections made by Ezra' (NHtS? ipTl p^D H"^), 
 who was the first of the Soferim. If this tradition about the QilSlD 'Jlp^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 {I. c.) assumes. On the contrary, this conflict 
 speaks in favour of our tradition. For it proves that the tradition about the 
 D'TQID ''ilpTI 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 
 {I. 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 I7 (Levit. 11. 21) certainly affected the Law. 
 
MIDRASH AND MISHNAH 39 
 
 the desired result." 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. 
 
 " 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 fiF. 
 
40 MIDRASH AND MISHNAH 
 
 body of teachers ceased with the death of their last member, 
 Simon the Just I (about 270 B.C.) has ah'eady 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. 
 
MIDRASH AND MISHNAH 
 
 41 
 
 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 gLiided 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 
 
42 MIDRASH AND MISHNAH 
 
 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 L 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 
 
MIDRASH AND MISHNAH 43 
 
 Just I and Antigonos.^^ It does not mention the name of 
 even one teacher between the years 270 and 190B.C., that is, 
 between the latest possible date of Simon's death and the 
 timeof 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 tho5e years. 
 
 '* 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 (Doroi Harishonim, 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 
 {Hodegetka, 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 
 Hazeman, 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 IJDD ?y\>, as it uses in the following passages the phrase 
 DnD l73''p. The specific mention of the name in the statement (IVBCD PS^p 
 p^nyn 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 p. 116). 
 
44 MIDRASH AND MISHNAH 
 
 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.^" 
 
 5^ The Soferim, up to the time of the death of Simon the Just I, were 
 mostly, if not exclusively, priests. See my Saddiicees and Pharisees, p. 6. 
 Compare also Schiirer, Geschichte, II*, 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 e.g., after the death of Simon 
 
MIDRASH AND MISHNAH 45 
 
 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.*" 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. 
 
 *" 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. 
 
46 MIDRASH AND MISHNAH 
 
 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.*^ 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 bod)' 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 
 
 *' See below, note 50. 
 
MIDRASH AND MISHNAH 
 
 47 
 
 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.*^ 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 
 
 *' 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. 
 
48 MIDRASH AND MISHNAH 
 
 introduce textual changes, as the Soferim of old used 
 to do,*^ 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, 8j, 
 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- 
 
 « We are not considering here the slight changes which according 
 to Geiger {Vrschrift, 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 reUgious law, ventured again to make sHght changes and 
 to indicate their teachings in the text. 
 
MIDRASH AND MISHNAH 49 
 
 graph occurs (§ 142): 'And let all of that nation live 
 according to the laws of their own country and let the 
 senate (yepovaia) 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.** 
 
 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. 
 
 " Buchler {pp. cif., 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 difiBculty 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. c. the senate as 
 a body not identical with the priests. 
 
 L. E 
 
50 MIDRASH AND MISHNAH 
 
 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 Jezvish Sectaries, vol. I, Cambridge, 1910). 
 
MIDRASH AND MISHNAH 51 
 
 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].** 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 
 
 *^ The passage in the text A, p. i, lines sff., reads as follows; — 
 
 jcnbi IS-1X ns' K'n''!' nyuD tj'nvc' pnNoi ^n-iej'''D nrovi nnija ^aa 
 onivs vm on d''ob>x D''tj'JN 13 ijjTii o^iyn u''a''i inmN aiun 
 iniB'-n abv 2^2 o oniB'jfD ^n bvi p''i ons^'u di:b' i-ii Q'<z'm&2) 
 
 (nOUl) 13^ Tlin D3i-inni' ITl miO anb Dpil. '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 
 .Zadolcite 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 ig6 B. u., 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., LIV, 6, pmnJO HI b^'H bvn VD'I, and Hullin 92a, nmi33 NMl 
 
 jmnJD i^N ns3 nnbv). 
 
 E a 
 
52 MIDRASH AND MISHNAH 
 
 Israelitic teachers) and caused them to come together as an 
 assembly (DJ?l3?';i). They dug the well . . . , that is the 
 Torah '.■*" 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. 
 
 *' The passage on p. 6, line 2-3, reads as follows : 0^^133 pni<D Plp'l 
 dJJBE'^l D''D3n i'KIE'^Dl. The phrase B^Oan isNTi'lOl reminds one of 
 the term 7K1B" ''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 WCW^\ means 'he assembled 
 them', lilie DVn DN i'lNB' VD{r''1, i Sam. 15. \. ' 
 
MIDRASH AND MISHNAH 53 
 
 Johanan, 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." 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- 
 
 *' It is very unlikely that Jose b. Joezer was president (S''B'3) of the 
 Sanhedrin although he belonged to an influential aristocratic family and 
 was a priest (n3inD3'i' T'DH, 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 i 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. c. 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 
 2uggot 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. 
 
54 MIDRASH AND MISHNAH 
 
 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 ofificial 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 
 
MIDRASH AND MISHNAH 55 
 
 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- 
 
56 MIDRASH AND MISHNAH 
 
 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 
 
MIDRASH AND MISHNAH 57 
 
 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.*^ Different solu- 
 
 *' 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 
 
58 MIDRASH AND MISHNAH 
 
 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.''^ 
 
 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. i) who was a zealot for the 
 Law (4. 2). 
 
 *^ 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 Phafisees, p. 8, 
 note 2). This seems also to be indicated in the story of Abot d. R. Nathan, 
 where the statement |n? 1B'"1''31 13?n ' 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. 
 
MIDRASH AND MISHNAH 59 
 
 administration of the communal and religious affairs.^" 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 
 
 ^'' 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. 
 
6o MIDRASH AND MISHNAH 
 
 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. 9 ff. 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.^^ 
 
 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 
 
 ^' For further details about the attitude of each group towards the Law 
 lee my Sadditcees and Pharisees. 
 
MIDRASH AND MISHNAH 6l 
 
 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. 
 
62 MIDRASH AND MISHNAH 
 
 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, 
 
MIDRASH AND MISHNAH 63 
 
 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.*^ 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 
 
 ^^ 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. 
 
64 MIDRASH AND MISHNAH 
 
 the Mishnah-form.^^ 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 
 
 ^^ 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). 
 
MIDRASH AND MISHNAH 65 
 
 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, Eduyot Vni,4, 
 and they read as follows : 
 
 .Nnc 'DV r\'b npi .nNnoa s-n'Dn nipni poT (prxn) ^?^^3D0 '3 
 
 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.'^ 
 
 5* There is no other halakic decision in the Mishnah expressed in the 
 Aramaic language. The Aramaic saying of HiUel (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. 
 
66 MIDRASH AND MISHNAH 
 
 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 ^^ (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 
 
 ^^ It is surprising to find tliat 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 thai 
 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 u'as 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 
 37 b, DIJin nT K'^1ED, 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, Onkdos and A ky las, 
 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 spolce Hebrew, the language in which the Torah was. 
 written. 
 
MIDRASH AND MISHNAH 67 
 
 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 ?^^ 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. 34, 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.^^ 
 The Aramaic language came into use among the people in 
 Palestine at a much later date ^^ (see Schiirer, Geschichte, 
 
 '' 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. 
 
 " Weiss himself says (Por, 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 ? 
 
 ^s Schiirer 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. 
 
 F 3 
 
68 mDRASH AND MISHNAH 
 
 IP, pp. 23-6. Even after the Aramaic language had 
 become the language of the people, Hebrew remained the 
 lang-uasre of the school and the teachers, the D'03n ptyp. 
 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 Tyn. 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 TJJn 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 pp. 1138".), 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. 
 
MIDRASH AND MISHNAH 69 
 
 as we know, the method of procedure followed by the 
 teachers of the Halakah hi 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, 2 ; and Tosefta Sanhedrin 
 IX, 11). Nowhere do we find that they hold the testi- 
 fying teacher responsible for the decision which he reports.'* 
 
 '^ 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'lfH , 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. 
 difScult 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 TSJil 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, Di"l3T nV^HND 13 Tltn. 
 ^D1^< n^iltJ', 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 t& 
 
70 MIDRASH AND MISHNAH 
 
 Here, in the case of Jose, however, we see that they called Jose 
 NnB" '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 N^E' ' 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 nai'n? 'as 
 a norm of practice '.'^° It is therefore evident that these 
 Halakot, though introduced with the phrase ''DV Tjjn, were 
 
 follow the majority, Akabiah uses the words Tn\T ''^3^ rT'in? 3t31tD 
 D''3';"ltDn "'"1313 TinNpl ' 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 inil1JDr^3 TilC)! liK . . . DUniOn 'SO TUIOtf iJX {ibid. 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 Tyn,to introduce Akabiah's decision, 
 thus representing them as being based upon an older tradition which 
 Akabiah had. 
 
 "> Levy erroneously states {Ozar Nehtnad, 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, n^S"!?. 
 
MIDRASH AND MISHNAH 7I 
 
 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 ^<n5^'. 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 naop ' he (Jose) held ', or ' was of the 
 opinion'. And when the reason for another decision is 
 asked, the phrase ijl^S'Dp 'ND3 ' 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, 
 rh n'DJ Knab'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 TJJn 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 
 
72 MIDRASH AND MISHNAH 
 
 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 anpni 
 3NnDa Kn''03 ' 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. 27 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 Nn*C3 "^ and interpreting 
 
 *i 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 HNDlDn 3K and not an nSOIDn HUN "aS*. Frankel bases his ex- 
 planation on the expression 3KnDD ' becomes unclean ', since it is not said 
 3NDtD, which could mean also 'he makes unclean'. But this explanation 
 is wrong. In the first place, if the nD3 VJ1J becomes only an ilNDIBn aS 
 he could still make others unclean, and thus be a 3NDD and not merely a 
 
MIDRASH AND MISHNAH 73 
 
 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. 3npn3 anpn)*'^ 
 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 
 
 DXnDD . Secondly, as Weiss {Dor^ I, p. loo, note) pointed out, the reading 
 SNDDD is not genuine, some editions having indeed 3NDD. Moreover, 
 3NDD does not mean ' malces 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 Nn'D3. 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. 
 
 *' 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 3"lp''^3 mpH, and explain it so as to agree with the later 
 teachings of the accepted Halakah. But the original meaning of the term 
 mpni ilpn, which is apparently identical with the phrase D^t< W3 
 niNOD y303 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 3^p1^3 DHp^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. 12, lines 15-17). Compare, 
 however, Ginzberg's ingenious explanation of this passage in the Monats- 
 schrift, 1913, pp. 560-61). It seems, however, more probable that Jose 
 declared every kind of 3"lp''13 DIpH 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 HD N13I3 becomes 
 an nNOItSn 3K and can make others unclean. See below, note 64. 
 
74 MIDRASH AND MISHNAH 
 
 aipna aipn, one who touches a person who has become 
 unclean by contact with a corpse, also becomes unclean, 
 Nir'nixno, according to the Law. They must have derived 
 their opinion either from a literal interpretation of the 
 passage in Num. 19. 22, n'dd'' NDOn u yr nrx b, as stated 
 in the Talmud (ibid.) or, what is more likely, from the 
 passage in Lev. 5. 2, NOD nan i^^n wn Ti'N CSJ ix, 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, XH, ed. Weiss 22 d. There we read as follows : 
 DnoiN vn ffJiB-Nnn D''jptn ^xod nan ^33 wn nr'N "csj in 
 nbn n^n nbn h"r\ 3"n xn'' niNOD woa nns w: dn i^'sn i^iai 
 HNcmn ax pxc nan nv nNoien max tsrw pnm-D li'N no nona 
 'Or if a person touches any unclean thing ' (Lev. 5. 2). 
 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 Piai ' one might 
 
MIDRASH AND MISHNAH 75 
 
 argue', points to an actual opinion held by some people, 
 which the Midrash seeks to refute. As the view of the 
 D^Jlt^Nin QiJpT here expressed is identical with the view of 
 Jose,*'^ viz. : that only NiTiDa aipn becomes unclean, the 
 possible opinion introduced by i'lD'' 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 a''JlB'Nnn D^jpr. This interpretation says 
 that the meaning of the general term NOD n3T ^33 is defined 
 and limited by the following special terms n^n n»na ni'Sja 
 ^'^K' "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 N^N bb22 ps' Dial ^^3 
 Diaai:' no. And if we include the passage ;nnvo "ha no in 
 the original Midrash, which however is doubtful,"* Jose or 
 
 ^' The identity of Jose's decision with the one quoted in Sifra in the 
 name of the D^JICNln D'jpT is also assumed b3' Professor I. Levy as quoted 
 by S. Horowitz in Sifre Zutta, Breslau, 1910, p. 7, note 5. 
 
 " It seems to me that the passage nNOIDH DUN jHK' innro 1>N HD 
 is not of the original Midrash of the Cl'JWXin Q'ipl, but a later addition. 
 For, if it had been a part of the Midrash of the older teachers, then R. Al<iba'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 f'TiJ' nP333 . . . ?"n. The older teachers inter- 
 preted this scriptural passage as a D1S1 772, to mean only what is 
 expressly mentioned in the special term D1S3EJ' DD t<i^N P?33 |''^5. They 
 excluded even HNDIOn ni3X. To this R. Akiba added another Midrash 
 according to which only what is not an nNOlDH 3N is excluded. If, 
 however, we include the passage nNDICn nnx ]r\^ |nniiD l^N HO in 
 the original Midrash of the older teachers, we must assume that the term 
 nXDIUn ni3X 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, 
 o/>. cit., p. 8). 
 
 That the D'JIB'Nnn I3'':pt excluded even so-called HNDIDn illlX is 
 
76 MIDRASH AND MISHNAH 
 
 the D'JK'Nin D'Jpr must have considered the following passage 
 D^^< riNOiQ ba w ncx in as another bb^ and formulated 
 the rule U13n |''I?3 N^N p "l^^" '^ ^^^l ^^l^l ^^53, and accord- 
 ingly included other nxDlon max which are like NfT'D. 
 
 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 NVDp 7'N as clean was 
 reached by Jose also by means of applying the rule 
 ^bl D131 bbs to include Disn pi'3 (see Rashi Ab. zarah, 
 ad loc, and Tosfot Yomtob to Eduyot VII, 8). In regard 
 to the decision about the N^naDD n npa'D, 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, K'OD pT, while according to Samuel 
 the decision was merely that these liquids cannot com- 
 municate to others their defilement, but in themselves may 
 become defiled, Dnnx riNOlD v^-axhr:! pT (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, L"00 pT. 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, adloc. (This shows 
 that he felt the difficulty of finding a difference between their Midrash and 
 the Midrash of R. Altiba.) Rabed, however, assumes that the older teachers 
 decided this only with regard to punishment for entering the sanctuary in 
 such a state of uncleanness, B'npo HNU b^ Dn^^J? pa"n pNl. 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. 
 
MIDRASH AND MISHNAH 77 
 
 method of using the onsi \h^ rule. For in Lev. 11. 24, 
 where the defilement of liquids is spoken of, it is said : 
 nd;:'' ^^533 nnC' TJ'N- npe'D bl . Jose saw in the words nnf'' t^'n 
 ' which is drinkable ' or ' which is drunk out of a vessel ', 
 a limiting special term, DnD, which qualifies and limits the 
 general term, npco by\, and excludes from the latter the 
 NTiaOD '3 np'^iD 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 
 
 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 unsi yp'z which 
 Jose used. Since they did not accept this method they 
 could not teach these decisions together with the scriptural 
 
 ^^ 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 N'n3tOD ^3 ilp^O, 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, nHD iipC'D. Accordingly, the statement of Rab 
 (Pesahim 17 a) that Jose held that there was no biblical law which would 
 subject liquids to uncleanness, niinn fD ppCIoi? HNDID f^X nDDp, 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, p3nD ppE^D? n"l'U. It should 
 be noticed that there is much confusion about the laws of pp:;'D JIKDID, 
 which made it difficult lo ascertain the real meaning of Jose's decision, the 
 more so as the later teachers sought to harmonize it with the later halakic 
 rulings about liquids. 
 
78 MIDRASH AND MISHNAH 
 
 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."^ For this reason 
 they introduced these Halakot with the formula 'DP n^yn,'''' 
 Jose * declared ', or ' stated ', i. e. Jose is the authority for 
 these decisions; and they properly called him N''ie' ^DV, 
 ' 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, 
 n'Diar ''b bv hnioid nt: (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 i± special form. All these peculiarities of the Midrash would have 
 made it verj' difficult to use another language than Hebrew. In this manner 
 Hebrew remained the QiDSn pCv, 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. 
 
 " See above, note 30. There is no doubt that the introductory formula 
 Tijin 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. 
 
MIDRASH AND MISHNAH 79 
 
 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."® The reason for this 
 
 ** Graetz, Geschichie, III*, 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, 32 c, where it is said 
 of Simon b. Shetah, rT'SIST 'h^h HNOID l^nn NIHI. 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 da3'5 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, niSHD v3 
 (Shabbat 14 b, comp. Graetz, I.e., pp. 706, 708). In a report about this 
 decree of Simon some one probably made the mistake of substituting 
 n''313T h^ for nnriD i^a. 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 m^riD V3 and not against ri''Oi;T 'P^. 
 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 by Amoraim and appearing 
 as if they were the sayings of the Amoraim (see Frankel, Mebo ha-Jenishalmi, 
 pp. 26-7;. 
 
8o MIDRASH AND MISHNAH 
 
 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 vs 
 [ibid., 15 b). The Talmud, discussing this explanation of 
 Simon ben Lakish, raises the following question : ' If glass- 
 ware has been declared like Din 'hz because being made of 
 sand it belongs to the class of earthen vessels, why then is 
 it not considered by the Halakah as Din 'h'z 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 tlie Babj'lonian Talmud about tliis report it is 
 evident tliat tliey were well informed about this case. Objections arc raised 
 against part of this tradition, viz. the report about the decree of PJJ HNDID 
 D'Dl'n VIX. They show that there is another report which ascribes it to 
 the T^yo D''J1Cii'1 pDI. The two reports are, however, harmonized. But 
 they could not find any contradictory report about the decree against 
 
 n'3i3t ■h'2. 
 
 The reading H'^iat ^"2 ^Vl in the report of the activity of the p21 
 njtJ' D'JICCI 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 n'313t v3 it is also evident that the report about the act 
 of the X\yV D^J10"^1 p31 only mentioned the decree of pN ^JJ HNDID 
 
 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 lime 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. 
 
MIDRASH AND MISHNAH 8r 
 
 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 '73 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 nTiTJ? 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 "02 to mean 
 a vessel made of any kind of earth, and, consequently, he 
 included in it n''3l3r ''b:i which he indeed considered in all 
 respects like Din v^. The younger teachers, however, would 
 not accept the broad definition given by Jose to the term 
 Din 'i'3 so as to include n''313? i^3 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 ninj. They would therefore apply to n''2)2l ^bn only 
 certain of the laws of uncleanness that pertained to earthen 
 vessels. Din '^a . These other teachers would therefore not 
 teach this decision in the Midrash-form together with the 
 passage Din ''b bai, 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. 
 
 L. O 
 
82 MIDRASH AND MISHNAH 
 
 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.^' 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.'"' 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 
 
 ^^ Compare the idea expressed in the saying: dlU nairi nn'D "[D 
 
 ti''JiB'N"in njn bv iD^aoni niijB'n -nDyi nina-^'i, 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 naiBTl &> [ni; DNl {jap: njpn diS- (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. 
 
MIDRASH AND MISHNAH 83 
 
 same, ny i:»D ib-ip i6 Dvn bs ]rh B'Tni n^'V n\nc ''S ijj; fjK 
 IviitiaNl n''jn3B'o insjoe' la -^j? sa^ idnk'. 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. ''^ 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 D'JE'nT 
 .Dvnj, 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. 
 
 " Compare Bassfreund (op. cit., 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 : nipSJ! 
 -inn ■'bnj ^JB* Ona'DB' tib^ Q22 nirnB'. Their respect for these great 
 teachers, however, led them to accept their decision, even though they 
 would not accept their proofs. 
 
 G a 
 
84 MIDRASH AND MISHNAH 
 
 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 
 
MIDRASH AND MISHNAH 85 
 
 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, no bvatr mm, 
 
86 MIDRASH AND MISHNAH 
 
 and demanded that it be considered of equal authoritjr 
 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 nnin TIE'; 
 that is, the belief that there were two equal sources of 
 religious teaching, one the written Torah and the other 
 
MIDRASH AND MISHNAH 87 
 
 the unwritten Oral Law, both of which must be studied 
 aUke, 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, na ^yac min, was not of equal 
 authority with the written Law, anaaB' min. 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 
 
88 MIDRASH AND MISHNAH 
 
 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 
 
MIDRASH AND MISHNAH 89 
 
 such doubtful scriptural proofs at all, that is to say, to use 
 Mishnah rather than Midrash J^ After the Pharisaic teachers 
 
 " 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'^Dp DiTDirinB' n5)t}'3 
 
 min 'P Dr6 rhi oninw itrv^i i^iijn min nni Dnijai? 'As long 
 
 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 : 1DS5) I?pc'? niBH lb pX 
 pic's mx 133 ^:zb aha min nma ' 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' plEJ'D DTK '33 
 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. c, 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, niTlb a'pHX^ DlpD Unn bn, 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 
 
go MIDRASH AND MISHNAH 
 
 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: D''03n ni»i5n 13-ia pa DUiBnm \Vinn [D D3*n 1V3D 
 (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, n'K'n^ bran ^Nl 113 11 T'nSB' 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: sH S^JiX ND''t< XD^n 
 n3 *blPT7 TlNI y'D. 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. 1,2), 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.) 
 
MIDRASH AND MISHNAH 9I 
 
 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 
 ^X"iB" 'oan, 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'sntj" 'oan of the Pharisaic 
 party because he considered them indispensable as teachers 
 of the Law. He is said to have asked nhv Nnn 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 pp^ nmiDi r\2'\~\:i ■'-\n 
 niD^'i xa" niD^i' nsnn b:i niir, that the Torah would remain, 
 even if the Pharisees would be killed.''^ Also that any one 
 could study it because the Pharisees were not the only 
 
 "° 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. 
 
92 MIDRASH AND MISHNAH 
 
 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 ba-i^'' iD3n, 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 baie^'' ''DSn, 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 
 
MIDRASH AND MISHNAH 93 
 
 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 
 foi-ms. Those Halakot which were based upon a sound 
 and indisputable interpi-etation 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, 
 
94 MIDRASH AND MISHNAH 
 
 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 suppoil 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 
 sci'iptural proof. 
 
MIDRASH AND MISHNAH 95 
 
 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.' '* nioiK nriN lij^SN 
 ih '■'in sisN "^ V01B' ^J'S t35)0^ lOB"! nimi' |»B'3 1^13 Dm h'Z 
 •lyDD nB^D^J nai^n min^ '{oa. The emphatic expression ^rx 
 1? yow ' 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 ins 13^K 'There 
 
 '* It is very doubtful whether R. Eleazar b. Azariah himself used the 
 term 1JIDD TfOm n3?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 
 ''J'DD TVi/uP are a late addition and not the words of R. Eleazar. R. Eleazar 
 said merely that this rule was a traditional or rabbinical law, ilOiTI. A later 
 teacher, who understood the term naPH to mean ' Sinaitic Law ', added 
 the words yOD TWu7. There are many such instances where a later 
 teacher enlarges the term n3?n, used by an older teacher, to HCD? nOPn 
 ''J^DD, simply because he, the later teacher, understood the term nSPH in 
 this sense. But this interpretation, given by a later teacher, to the term 
 naiin which was used by an older teacher, is not necessarily correct. 
 Thus, for instance, the term DDPn used in the statement of the Mishnah 
 nS^n nblVni (M. Orlah in, 9) is interpreted by R. Johanan to mean 
 ''VD'O TW^h naSl (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 njiHID XflDPn 
 {ibid.). 
 
g6 MIDRASH AND MISHNAH 
 
 is no need of scriptural proof. It is evident that this 
 Halakah could not be based on an indisputable traditional 
 law.'^ 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, nanj?. 
 This, no doubt, was an old traditional custom. Abba Saul, 
 however, declared it to be a biblical law, deriving it from 
 the plural form 7113 ''3"ij; 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 na-iy. 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, iJ^DD hb'D^ r^^bn (Jerush. Shebiit 33 b), and, 
 of course, taught it in the Mishnah-form. 
 
 '6 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 
 nOPn, i. e. as a rabbinical or traditional law. It may be, however, that this 
 law was really an older traditional law, though not 'JiDO itZ'lob nD^Tl, 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 
 itas a mere Halakah, Nn^^^^ nntJJ p "Wvbn Ul^ iNip K3^py 'l^h. 
 
MIDRASH AND MISHNAH 
 
 97 
 
 The same was also the case with the ceremony of the 
 water-libation, DVon ^1DJ, 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, 'i'DD r\iifth T\:hr[ {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.''" 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 
 
 '^ The very frequency with which the Amoraim declare scriptural 
 interpretations of the Tannaim to be merely artificial supports, NfUDDX 
 ND?y3, for rabbinical or traditional laws (see Bacher, Die exegetische 
 Terminologte der jiidischen Traditionsliteratur, 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 KD^JJ^ NJiaDDN N"lp1 paTlD 
 and Kloi^W Xn312D^5 Nipl rh ^I'^OJ xna^'n 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. 
 
 L. H 
 
98 MIDRASH AND MISHNAH 
 
 such an extent that one could interpret any passage to mean 
 ahTiost 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." 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 
 topicall}^ 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 ofifered by the systematic arrangement of the Mishnah. 
 But it was only after the IVIishnah 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. 
 
Ill 
 
 In the above we have ascertained the date and the 
 reason for the introduction of the Mishnah-form, and have 
 traced its gradual adoption by the teachers. Now that 
 we know the motives for its first use, and the causes for 
 its extensive adoption, we may be able to explain the 
 strange silence of the talmudic-rabbinic sources concerning 
 this significant change in the form of teaching and all its 
 important consequences. 
 
 For this purpose we need only to review the main 
 points in this whole process and examine them with 
 reference to their possible effect upon the theories of the 
 later Rabbis. We shall then be able to judge whether 
 these later teachers had cause for ignoring these facts and 
 for remaining silent about them. 
 
 We have found that the first motive for teaching inde- 
 pendent Halakot in the Mishnah-form was the fact that 
 during a period of time when there was no official activity 
 of the teachers, certain customs and practices came to be 
 observed by the people. These customs and practices 
 subsequently had to be recognized and taught by the 
 teachers as religious ordinances, although no proof or 
 scriptural basis for them existed. This means that certain 
 religious practices, considered by the later teachers as part 
 
 99 
 
100 MIDRASH AND MISHNAH 
 
 of the traditional law, or as handed down from Moses, 
 originated in reality from other, perhaps non-Jewish, 
 sources, and had no authority other than the authority 
 of the people who adopted them. This, of course, reflects 
 unfavourably upon the authority of the traditional law 
 in general. We have, furthermore, seen that the teachers 
 themselves could not agree in regard to the origin of 
 certain laws. While some teachers endeavoured to find 
 artificial supports for these laws, using even forced in- 
 terpretations for the purpose of giving them scriptural 
 endorsement, others preferred to accept them as traditional 
 laws, presumably of ancient Jewish origin. This disagree- 
 ment among the earlier teachers in regard to the origin 
 and authority of certain laws speaks very strongly against 
 two fundamental theories of the later talmudic teachers, — 
 theories that were considered almost as dogmas. One is 
 the belief in an oral law, na bv^^ min, handed down from 
 Moses together with the written Torah. The second is 
 the belief in the validity of the laws which the wise teachers 
 derived from the Torah by means of their new interpreta- 
 tions, D'D3n t^ino. The disagreement noted above shows 
 unmistakably that in earlier times these two theories were 
 disputed and neither was accepted by all the teachers. 
 For some teachers hesitated to recognize the authoritative 
 character of certain laws merely on the ground that they 
 were traditional. Therefore they felt constrained to seek 
 proofs for these laws in the Torah. On the other hand, 
 there were teachers who objected to the validity of the 
 new interpretations by which certain laws were proved 
 from Scriptures. They pinned their faith to the traditional 
 character of these laws. Thus these earlier differences 
 between the teachers could be used as a strong argument 
 
MIDRASH AND MISHNAH lOI 
 
 against the authority of their teachings. This fear was 
 actually entertained by the later teachers. 
 
 Again, we have seen, that one of the motives for using 
 the Mishnah-fornn was the desire on the part of the 
 Pharisaic teachers to assert their authority and indispensa- 
 bility. This is apparently at variance with another theory 
 of the Talmud, viz. the belief that from Moses until the 
 Tannaim there was an uninterrupted succession of teachers 
 of the law, recognized as the chief religious authorities 
 whose direct and undisputed successors were the Pharisees. 
 However, the fact that the early Pharisaic teachers had 
 to assert their authority against the opposition of the 
 Sadducees, shows that these teachers were new claimants 
 to authority. This fact, as we have seen, reveals the true 
 state of affairs, viz. that the priestly teachers, the Sadducees, 
 were originally the authoritative teachers, whom the 
 Pharisees subsequently tried to supplant. 
 
 Thus, we see that the real conditions which accompanied 
 the change from Midrash to Mishnah cast many unfavour- 
 able reflections upon the theories and views held by the 
 later Pharisaic teachers, the Rabbis of the Talmud. We 
 can, therefore, well understand the silence of the Rabbis 
 about this important change. They did not care to dwell 
 upon facts which, if misunderstood, would reflect on their 
 theories. They hesitated to refer too frequently to 
 circumstances from which some people might, by mis- 
 interpretation, draw such conclusions as would shake the 
 foundation of the whole system of the traditional teachings.'^ 
 
 '8 That the Pharisaic teachers had such apprehensions is evident from 
 the following saying of R. Eleazar b. Azariah (or, according to Rashi, 
 R.Joshua b. Hananiah) in Hagigah 3 b : If njJ^tDJ HO D^DIBJ nnDDD31 
 
 a^can n^n^n li'N' ,niaiDX "^jj;! pmi )n-3 min nm six nnii ma 
 L. H a 
 
102 MIDRASH AND MISHNAH 
 
 This was not done with the intention of suppressing historic 
 facts, as they indeed mentioned these facts. They would 
 speak of them to those pupils who were prepared to see 
 things in their proper light, and were not disposed to 
 misinterpret them. They deemed it unwise to discuss 
 these matters before the pupils at large, fearing that there 
 might be among them some who could be misled by 
 opponents and thus arrive at erroneous conclusions. This 
 is a course of conduct followed by the teachers in regard 
 
 p-inno "hbrn pndud "hbn minn ppDiyi nisiDs maiDX luu'v:;' 
 mx noN^ Ncc . p-iT^o li'i'ni p^ois i^^n p^nn ^bbm jnois i^Sn 
 ba ,nnN n]:-\-ii:> un: oi'ia -\D)b nio^n ?nn5)D min noij '':n i^xn 
 Nin inn D''L"i'i3n b^ ;nx '20 pi:x nnx ons pn: nns" (compare 
 
 also Num. r. XIV, 4). We have in this saying both a defence on the part 
 of the Pharisaic teachers for mailing the Torah grow and increase so as to 
 contain more than its plain words warrant, as well as a refutation of the 
 arguments advanced against them that their very disagreement in many 
 questions speaks against their having reliable traditions. Against this 
 accusation the Pharisaic teachers insist that all their teachings come from 
 the same source, the same leader, D312, Moses gave them in the name 
 of God. We see from this that such arguments were raised against the 
 Pharisees by their opponents, for the phrase, DIH ION' NDu' ' Lest some 
 might say', is here not meant altogether in a hypothetical sense. It refers 
 to certain people who actually raised the question. Compare the saying : 
 
 bbr: jTisa nD^ni □"n D'Tiba nan i^ni lijx mDt<i Sp nn nnsi 
 
 ' A heavenly voice was heard declaring that both the words of the School 
 of Hillel and the words of the School of Shammai [despite their disagree- 
 ments] are the words of the living God, but the practical decision should 
 be according to the words of the School of Hillel' (Erubin 13 b). Compare 
 also the passage in Gittin 6 b, where Elijah is reported to have said that 
 God declared both the opposing views of R. Abiathar and R. Jonathan 
 to be the words of the living God. All these utterances were intended 
 to serve as a refutation of the attacks made against the teachings of the 
 Rabbis on account of their disagreements. We see from these covert 
 replies of the Rabbis that the arguments of the Karaites against the 
 Rabbanites (see below, note 85) were not original with the Karaites, but 
 were repetitions of older arguments. 
 
MIDRASH AND MISHNAH 103 
 
 to Still Other subjects which they likewise deemed unsafe 
 to communicate to the public at largeJ" 
 
 This course v/as not altogether culpable, seeing that 
 it was animated by no selfish motive, and that it was 
 pursued for the sake of the cause which the Rabbis wished 
 to serve. They were desirous of having their teachings 
 accepted by the people as authoritative. They therefore 
 refrained from dwelling upon the fact that there was once 
 a time when some people did not accept these teachings 
 as authoritative. Instead of reporting in detail the earlier 
 struggles of the Pharisaic teachers for recognition, and 
 their disputes with their opponents, they dwelt more 
 frequently on the continuous chain of tradition by which 
 they received their teachings. They mentioned only those 
 teachers and members of the Sanhedrin who were of the 
 Pharisaic party, whom they considered as having always 
 been the true religious leaders of the people. They quite 
 overlooked the fact that their opponents, the Sadducees, 
 were the ruling authorities in former times. Instead of 
 making explicit mention of the origin of the Mishnah-form, 
 which would i-eveal the late date of so many traditional 
 laws, they assumed the fact that the two Laws, the written 
 and the oral, were both handed down by Moses through 
 the agency of an uninterrupted chain of true teachers, the 
 bearers of tradition. The result was that to most of the 
 later teachers, especially the Amoraim, the origin and 
 development of the Mishnah-form was almost unknown. 
 
 " The same was done with the records of the families which the Rabbis 
 did not care to teach or discuss in public, fearing to cause unpleasant 
 controversies. They would hand them over to their chosen pupils 
 (b. Kiddushin 71 a). The same was the case with certain ineffable names 
 of God which they communicated only to a few chosen pupils, lest the 
 multitude misunderstand the significance of these names (ibid.), 
 
 H3 
 
104 MIDRASH AND MISHNAH 
 
 The time when this change was made, the motives that 
 caused it, and the circumstances that accompanied it, were 
 almost forgotten. They were known only to a very few 
 of the later teachers. These, like their predecessors, the 
 early teachers, did not care to speak about them. The 
 later Tannaim, and even the Amoraim, had the same 
 reasons for avoiding the mention of these conditions that 
 led to the adoption of the Mishnah-form as had the earlier 
 Pharisaic teachers for their silence about these facts. Just 
 as the earlier Pharisaic teachers, so the later teachers, i. e. 
 the Rabbis, had to contend with more or less opposition. 
 They had to combat those who denied their authority and 
 rejected their teachings, i. e. the traditional law. 
 
 After the destruction of the Temple and the dissolution 
 of the Jewish state, the Sadducees ceased to be a powerful 
 party and lost their former influence among the people. 
 However, it would be a mistake to assume with Biichler 
 {Der galildische Am ha-Arcrj, Wien 1906, p. 5) that in the 
 beginning of the second century c. E. the Sadducees had 
 altogether disappeared. They continued, if not as an 
 influential party, nevertheless as a group of people holding 
 peculiar views about the Torah, denying the binding 
 character of the traditional law and rejecting the authority 
 of the Rabbis who were the advocates of that traditional 
 law. We have evidence of their existence throughout the 
 entire tannaitic period.^" Many sayings of the later 
 
 «» R. Jose b. Halafta declares (M. Niddah IV, 2) that the daughters 
 of the Sadducees are to be considered as daughters of Israel, except in 
 cases where we know that they are determined to follow in their observance 
 the ways of their forefathers (i.e. the former Sadducees). The reason for 
 this view of R. Jose is found in his other saying where he states the 
 
 following; pn D''C3ni' DT niNio dni b^n jo nnv jna i3x '{^if^pi 
 nnn D^D^nl' m nriNnn ^h^ iJTiiiat^a nn^nc nnx he'no 'We are 
 
MIDRASH AND MISHNAH 
 
 105 
 
 Tannaim refer to them, though they do not ahvays desig- 
 nate them expressly by the name Sadducees. They even 
 
 very well informed about them. They all show their blood to the wise 
 teachers (i. e. the Rabbis). There was only one [Sadducean] woman in 
 our neighbourhood who would not do so, but she is dead now' (Tosefta V 
 3, b. Niddah 33b). Buechler {JQR., 1913, 446) erroneously takes this 
 saying of R. Jose to be merely another version of what the high priest's wife 
 told her husband. Such an interpretation of R. Jose's saying is absolutely 
 unwarranted. R. Jose describes conditions prevalent in his own day. 
 He justifies his attitude towards the Sadducean women by the information 
 that, with few exceptions, they follow the Pharisaic regulations in observing 
 the laws of menstruation. This shows that in the time of R. Jose b. Halafta, 
 i. e. about the middle of the second century c. e., there still were Sadducees. 
 Their wives, however, would, in most cases, be guided by the decisions of 
 the Rabbis in regard to the observance of the laws about menstruation. 
 The same R. Jose also says (M. Parah III, 3), nm^ n''pns^ DIpD fnJl ^5^ 
 ' Do not give the Sadducees an opportunity to rebel (i. c. controvert us in 
 argument) ', and this again shows that in his time there were Sadducees 
 who still argued against the teachers. 
 
 These Sadducees are also referred to, though not expressly designated 
 by the name Sadducees, in the sayings of other teachers of that time. Thus 
 the passage in Num. 15. 31, ' He hath despised the word of the Lord ', is 
 explained by R. Nathan in a Baraita (Sanhedrin gg a) to refer to one who 
 disregards the Mishnah, nr.J'Dn b'S ffJ-'D •\i''^y ''D ^53, that is to say, 
 one who denies the traditional law. In another Baraita (ibid.) it is stated 
 that the expression, ' He hath despised the word of the Lord ', applies even 
 to such people who would accept the entire Toraii as divine but would take 
 exception to a single detail in the traditional interpretation : ?3 "IDINH 
 
 riT niB> nTUO nt iDini bp'o nt pnpiD ;'in Qiocn ;d nijia minn. 
 
 An anonymous saying in Sifra, Behukkotai II (Weiss iiib) interprets the 
 passage, 'But if ye will not hearken unto Me' (Lev. 26. 14), to mean, ' If 
 ye will not hearken to the interpretation given by the teachers ', iO DX 
 CMn E5'"niD? IVDBTI . The saying continues and speaks of people who 
 despise and hate the teachers although they accept the laws given on Sinai. 
 All these utterances were certainly not made without provocation. There 
 must have been people who accepted the Torah and disputed the 
 rabbinical laws. 
 
 Another teacher, R. Jose b. Judah, living in the second half of the second 
 century, rules that if a Gentile wishes to accept the Law with the exception 
 of even one detail of the rabbinical regulations, we should not admit him 
 as a proselyte (Tosefta, Demai II, 5 ; Bekorot 30b). This shows that there 
 
106 MIDRASH AND MISHNAH 
 
 lingered on in the time of the Amoraim.^^ Throughout 
 the entire period of the Amoraim there were certain people 
 
 must have been Jews who rejected the rabbinical laws. Therefore it could 
 occur to a Gentile that it was possible to become a Jew without accepting 
 all the rabbinical laws. 
 
 This is also evident from the following story told in Jerushalmi, Shebiit IX, 
 39 a. A certain man who disregarded the regulations regarding the sab- 
 batical year instructed his wife to be careful in separating the priest's share 
 from the dough (hallah;. His wife, to whom this conduct seemed inconsistent, 
 asked him why he insisted on the observance of the hallah-law when he was 
 disregarding the law about the sabbatical year. His answer was : The law 
 of hallah is biblical, the regulations about the sabbatical 3'ear are rabbinical, 
 having originated with R. Gamaliel and his colleagues, nHin I^HD ilbn 
 mum bs'bcj painO n^yaC. This shows beyond any doubt that there 
 were people who observed the Torah strictly but who denied the validity 
 of the rabbinical teachings. 
 
 '■^ R. Hanina and Abba Areka (Rab), Amoraim of the first generation 
 (first half of the third century c. E.), describe the Epicuros as one who 
 despises the teachers, D^DJil ''"T'wn HDCn (b. Sanhedringgb). R. Johanan, 
 an Amora of the second generation, and R. Eleazar b. Pedat, an Amora of 
 the third generation (second half of the third century), characterize the 
 Epicuros as one who says (in a tone expressive of contempt), ' That teacher ', 
 NnSD |nx "IDXT ina, or as one who says, 'Those Rabbis', IDNT jn3 
 (■•JDn iV^X (p. Sanhedrin X, 27 d). Buechler makes the mistake of reading 
 [nb instead of fnS, and therefore makes the saying refer to 'a priest' who 
 uses that contemptuous expression about the Rabbis {Der Galildische Am 
 ha-Arez, p. 187). This is palpably wrong. The same characterization of 
 the Epicuros is given by R. Papa, an Amora of the fifth generation (second 
 half of the fourth century): piT iJH nCNT p33 (b. Sanhedrin looa). 
 R. Joseph, an Amora of the third generation, applies the name Epicuros 
 to a class of people who say, ' Of what use have the Rabbis been to us', 
 pan ]h 13nX ''Xn nDNT i^n pas {ibid.). Raba, an Amora of the fourth 
 generation (first half of the fourth century), refers to a certain family of 
 Benjamin the physician who said, ' Of what use have the Rabbis been to us ; 
 they have never allowed a raven or forbidden a dove' {ibid.). This is 
 a saying which seems to express that we do not need the Rabbis, the 
 bibhcal laws being clear enough. These people lived according to the Law, 
 and as stated in the Talmud {ibid.) would occasionally consult Raba con- 
 cerning some ritual question. Their ridiculing remark about the Rabbis 
 was evidently the expression of their peculiar attitude towards the teachings 
 of the Rabbis and of their opposition to the latter's authority. 
 
MIDRASH AND MISHNAH 107 
 
 who upheld the views and ideas of the old Sadducees. 
 They were opposed to the authority of the Rabbis, and 
 rejected their teachings. They were no longer called 
 Sadducees. They were designated as ' Epicureans ', 
 Dlllp'ax, or referred to without any special name, merely 
 as ' people who deny the authority of the Rabbis and 
 reject the traditional law '. These anti-rabbinic elements 
 of the talmudic period formed the connecting link between 
 the older Sadducees and the later Karaites.'^ Knowing, 
 that the Sadducean tendencies continued throughout the 
 entire period of the Talmud, and had both open and 
 secret advocates, we can readily understand why the 
 talmudic teachers hesitated to report indiscriminately all 
 the details of the disputes between the Pharisees and 
 Sadducees, and also all the differences of opinion and the 
 disagreement as to methods among the Pharisees them- 
 selves. All these, as we have seen, were the causes that 
 led to the adoption of the Mishnah-form. The talmudic 
 teachers were careful not to place weapons in the hands of 
 their opponents. 
 
 Thus the strange fact is explained why no explicit 
 report about this matter was preserved in the talmudic 
 literature. Only a few occasional remarks which escaped 
 the teachers hint at the actual historic conditions, and 
 they show us that a knowledge of the real facts did exist 
 among some of the teachers. 
 
 The Geonim, likewise, seem to have had a purpose in 
 avoiding the mention of these significant points in the 
 historic development of the Halakah. When occasionally 
 
 62 Compare Friedmann in his Introduction to the Seder Eliahu Rabba, 
 &c., Wien 1902, pp. 97-8, and Harkavy, Ziir Entstehxmg des Karaismus, 
 in Graetz's Geschichte, V, pp. 472 ff. 
 
I08 MIDRASH AND MISHNAH 
 
 forced to speak about the same, they reveal by their very 
 reticence as much as by their casual remarks that they 
 had knowledge of the facts. We pointed out above the 
 awkward pause in the letter of R. Sherira Gaon. In 
 answer to the question of the people of Kairuan regarding 
 the origin of the Mishnah and the Sifra and Sifre, the 
 Gaon was compelled to speak about the j\Iidrash and the 
 Mishnah. He barely touches upon the subject of the Mid- 
 rash, saying merely that this was originally the exclusive 
 form. Here he stops abruptly and turns to another subject, 
 viz. the Baraita collections of R. Hiyya and R. Oshaya. 
 We might assume that something is missing in the text 
 of the letter.^" This, however, is improbable. It is almost 
 evident that R. Sherira broke off in the middle of a 
 thought, because he deemed it unwise to say any more 
 about the adoption of the Mishnah-form in addition to the 
 Midrash. 
 
 This reluctance on the part of the Geonim to speak 
 about this subject is more noticeable in the responsum of 
 R. Zemah Gaon. The people of Kairuan inquired of R. 
 Zemah Gaon regarding the attitude to be taken towards 
 Eldad. Eldad reported that in the Talmud of his own 
 people the names of individual teachers were not mentioned. 
 As in our Talmud differences of opinion and names of 
 individual teachers are mentioned, they found this report 
 of Eldad very strange. Zemah answered that this was not 
 a reason for doubting the character of Eldad and his 
 teachings, because the method described by Eldad was 
 indeed the earlier mode of teaching. He states that in the 
 time of the Temple, when they taught all the traditional 
 law in the Midrash-form, they did not mention the names 
 
 '^ See above, note 9. 
 
MIDRASH AND MISHNAH 109 
 
 of individual teachers.^* Now, this would seem to be a 
 sufficient answer, and he should have stopped here. But 
 R. Zemah Gaon adds the following significant words : 
 i'Ni pniB' bn nriN pVDoi nic^na pa ms'oa pa nnt nnN n-iinni 
 nm -inon ffn^N nna ncxyL^ ,im b ti'ns^ paj 'The Torah 
 is one. It is embodied in the Mishnah and in the Talmud. 
 AH draw from one and the same source. It is not advisable 
 to explain everything, for it is said : It is the glory of God 
 to conceal a thing (Prov. 25. 2).' Why this mysterious 
 admonition, and what was the secret he sought to hide? 
 The account of the origin of the Mishnah-form, given 
 above, will help us to understand the need for the admoni- 
 tion and the nature of the secret. The Karaites in the 
 time of the Geonim denied that the teachings of the 
 Mishnah and Talmud embodied the true tradition. They 
 characterized these teachings as later rabbinic inventions. 
 In support of their attitude they instanced the numerous 
 disagreements and frequent disputes of the Rabbis of the 
 Talmud. They argued. How could there have been tradi- 
 tion among the teachers when there was no agreement 
 among them as to their teachings and Halakot.^^ 
 
 We have seen above that the history of the development 
 of the Mishnah-form reflects unfavourably upon the tra- 
 ditional character of the Pharisaic teachings. This was 
 the reason for the talmudic silence about the origin of the 
 Mishnah-form. The Geonim were silent on this point for 
 the same reason. Neither Zemah nor Sherira wanted to 
 state exactly how long the Midrash continued in exclusive 
 
 *■• See above, note 33. 
 
 '^ See, for instance, the arguments used by Sahl ben Mazliah (Pinsker, 
 Likkute Kadmoniyyot, Nispahira, pp. 26, 35'. The same arguments are 
 raised by many other Karaitic writers. 
 
no MIDRASH AND MISHNAH 
 
 use, for it would have shown that the Mishnah was of 
 comparatively late origin, and that its adoption was due 
 mainly to the differences of opinion that arose between the 
 Pharisaic teachers and the earlier authorities, the Sadducees. 
 When compelled to refer to the time when Midrash was in 
 exclusive use, both Zemah and Sherira used the vague term 
 i;np';n 'in the Temple times '. This, however, as we have seen, 
 can refer only to the time before the division of the parties.^^ 
 
 *' It is possible that the use of the term CHpC^ in this peculiar sense 
 was suggested to Zemah and Sherira by a passage in Mishnah Berakot IX, 5, 
 where the term is likewise used in referring to a custom that was prevalent 
 in the Temple during the time previous to the division of the parties. The 
 passage in the Mishnah reads as follows : C'TpD3 IMB" ni3"13 ^IDTWH ?3 
 
 inx N^x nbiy pN nnxi n^pnvn )bpbpc'i2 D^iyn p d^cik vn 
 
 D/IVn IJJl ai;iVn ;D OniOIX IVT-C irpnn. [The text in the editions 
 of the Mishnayot reads CJ^tOil lt:pbp-'0, but in the Talmud-editions the 
 reading is D'pniTI "ibpbp-'G, which is the correct reading. Compare 
 A. Schwartz, Tosifta Zeraim (Wilsa, 1890), p. 57, note 189.] Here we have 
 the report of a Pharisaic regulation aimed agamst the Sadducees who 
 rejected the belief in a future world. Here the term C'lpd, while 
 designating the place, i. e. the Temple, also includes an element of time. 
 ' In the Temple' evidently refers to the time prior to this Pharisaic regu- 
 lation, i. c, prior to the division of the parties. The Pharisaic regulation 
 reported in this passage originated in the verj' early days of the differences 
 between the Sadducees and Pharisees, and not as Buechler {Priester and 
 Cultits, p. 176) assumes, in the last decade of the existence of the Temple. 
 This is evident from the fact that in the same paragraph the Mishnah reports 
 another regulation which no doubt originated in the early days of the 
 differences between the priests and lay teachers. This other regulation 
 prescribed that a man should use the name of God in greeting his neighbour. 
 This was either a reaction against the religious persecution under Antiochus 
 when it was forbidden to mention the name of God (comp. b. Rosh ha-Shanah 
 iBb and Meg. Taanit VII), or according to Geiger {Jiidische Zeiischrift, V, 
 p. 107 ; comp. also Urschrift, pp. 264 ff.) it was to emphasize the claim of 
 the Pharisees to use the name of God as the priests did. Anyhow, this 
 second regulation originated in the very earliest days of the division of the 
 parties. From this we may conclude that the first regulation also originated 
 at the same time. It is quite evident that the author of this report in our 
 
MIDRASH AND MISHNAH III 
 
 Sherira, who was merely asked about the origin of the 
 Mishnah and the halakic Midrashim, could easily avoid 
 mentioning anything he did not desire to state. He limited 
 himself to answering the questions put before him. He 
 stated that the Midrash was the earlier form, used ex- 
 clusively in the earlier days of the second Temple. He 
 was careful, however, not to define this period. He also 
 told them the history of the Mishnah. He could well 
 refrain from stating why the Mishnah was introduced as 
 an additional form to the Midrash, for he was not expressly 
 asked about this point. His questioners did not ask why 
 a change in the form of teaching was made, and probably 
 did not know that the Mishnah-form was the result of 
 such an important change. Sherira did not find it neces- 
 sary to enlighten them about this point. 
 
 R. Zemah found himself in a more difficult position. 
 He was compelled to commit himself to some extent. He 
 was expressly asked why in Eldad's Talmud no names are 
 mentioned, while in our Talmud many names of debating 
 teachers, representing conflicting opinions, are found. This 
 question implied a doubt in the minds of the questioners 
 concerning the authority of our Talmud. R. Zemah had 
 to address himself to this doubt. He first admits that 
 originally all teachings were given in the Midrash-form. 
 Since in this form all teachings are presented as interpreta- 
 tions of the written Torah and not as opinions of the 
 teachers, the names of the teachers were therefore not 
 mentioned. He also avoids definite dates, using like Sherira 
 the vague term ' in Temple times ' to designate the period 
 of the exclusive use of the Midrash. However, he still 
 
 Mishnah mentions these two regulations in the same paragraph to denote 
 their simultaneous origin. 
 
112 MIDRASH AND MISHNAH 
 
 fears that the people might be led to doubt the traditional 
 character of the Mishnah on account of the disputes and 
 opposing views of individual teachers that are found in it. 
 He therefore admonishes the questioners to entertain no 
 doubts about the Mishnah and the Talmud, but to con- 
 sider them as coming from the same source as the written 
 Torah and as being one with the Torah. This admonition 
 of R. Zemah Gaon is a warning against the Karaites of 
 his day. It is of the same character as the warning 
 uttered by Joshua b. Hananiah (Hagigah 3 b) against the 
 Sadducees of his own time.^^ 
 
 The result of our inquiry into the cause of the talmudic- 
 rabbinic silence about our subject may be summed up in 
 the following conclusions. The early Pharisaic teachers 
 refrained from pointing to the causes for the adoption of 
 the Mishnah-form, and to its effects upon the development 
 of the Halakah, in order not to strengthen the position of 
 their opponents, the Sadducees. The later talmudic 
 teachers similarly avoided discussion of these subjects out 
 of fear of those of their opponents who followed the old 
 Sadducean doctrines. The Geonim, in like manner, re- 
 frained from mentioning these facts, in order not to place 
 weapons in the hands of their opponents, the Karaites. 
 
 " At the end of his responsum (Yellinek, Beth Hamidrash, II, p. 113) 
 Zemah repeats his warning not to deviate from the Talmud and the teachings 
 of the Rabbis in the following words : nnX P'DDCC' Dsi' liVTl'l 1^01 
 
 n^N minn -a hv nina ptv onnai ^-2 nnNo ^jnoci poi ion h^^ 
 
 It'l'n D3^ nCX< "IK'X tiSCDn bvi inV. This repetition of the ad- 
 monition and the citation of the passage in Deut. 17. 11, so often used by 
 the Rabbis is support of the authority of their traditional teachings, further 
 proves that Zemah aimed to allay any disquieting doubts in the minds of 
 the people in regard to the traditional character of the Rabbinical teachings. 
 
MIDRASH AND MISHNAH 
 
 IV 
 
 "3 
 
 Saadya's Statement Concerning the Beginnings 
 
 OF THE MISHNAH. 
 
 In the course of our discussion, we have proved from a 
 talmudic report as well as fronn certain utterances of the 
 Geonim, that the first introduction of the Mishnah-form 
 took place in the last days of Jose b. Joezer. There is but 
 one gaonic statement about the beginnings of the Mishnah 
 which seems to be at variance with this conclusion. I refer 
 to the statement of Saadya Gaon in his Sefer Hagaluj 
 (Schechter, Saadyana, p. 5 : also quoted by a Karaitic 
 writer, see Harkavy, Sttidien und Mitteihmgen, V, p. 194). 
 
 This statement of Saadya places the time for the 
 beginnings of the Mishnah soon after prophecy ceased, 
 in the fourtieth year of the second Temple. This is 
 apparently a much earlier date than the time of Jose b. 
 Joezer. A closer examination, however, will show that the 
 period to which Saadya assigns the beginnings of the 
 Mishnah is actually the same as the one which we have 
 found given in the Talmud and indicated by the Geonim 
 R. Zemah and R. Sherira, viz. the time of Jose b. Joezer. 
 It is merely due to the faulty chronology, followed by 
 Saadya, that his date appears to be earlier than the one 
 which we fixed on the basis of the evidence derived from 
 the Talmud and the statements of R. Zemah and R. 
 Sherira. 
 
 We must keep in mind that Saadya followed the 
 rabbinic chronology as given in Seder 01am and in the 
 Talmud. This chronology, however, at least in so far as 
 
114 MIDRASH AND MISHNAH 
 
 it relates to the earlier period of the second Temple, is 
 absolutely incorrect. In order to be able to fix the actual 
 time to which Saadya's date refers, we must first point 
 out the peculiarities of the talmudic-rabbinic chronology 
 which he followed. To account for the errors and the 
 confusion in this chronology, it is sufficient to know its 
 character. It is an artificial chronology, constructed by 
 the later teachers for the apparent purpose of establishing 
 a direct connexion between the true teachers of the Law, 
 that is to say, the Pharisees, and the prophets, and thus 
 to prove the authority of the Pharisaic teachers and the 
 traditional character of their teachings. Such a direct 
 connexion between the prophets and the Pharisaic teachers 
 of the traditional law could be established only by utterly 
 ignoring the time during which the priests were the sole 
 religious teachers and leaders, and consequently contracting 
 long stretches of time into short periods. Hence all the 
 inaccuracies in this artificial and faulty chronology. 
 
 The Rabbis assume that the Pharisaic teachers received 
 the Law, as well as all their traditional teachings, directly 
 from the prophets. In their chronology, therefore, the 
 prophets are succeeded not by the priestly teachers, the 
 D'Jn3, but by the D''D3n, the wise lay-teachers. This is 
 expressed by the Rabbis in the statement: lN3ir,J [NO ly 
 D*D3n nm ])c^) na^ nn i^'ni |x;d li'nipn nna n^Nnin (Seder 
 Olam Rabba, XXX ; comp. also Seder 01am Zutta, VII). 
 By CV^n are evidently meant bsi^'' "Dan, lay-teachers, 
 or more exactly, Pharisaic teachers, in contradistinction to 
 the priests or Sadducees, the D''jn3. This is confirmed by 
 the fact that in passages in the Mishnah and the Tosefta 
 which likewise contain the idea that the wise teachers 
 directly succeeded the prophets, the Zuggot are expressly 
 
MIDRASH AND MISHNAH 1 15 
 
 mentioned. Thus in Mishnah Peah II, 6 and Tosefta 
 Jadayyim II, 16, we read that the Zuggot, that is to say, 
 the earliest Pharisaic teachers, received traditional laws 
 directly from the prophets, Q'SU^n p )b:ip\y nijIID i^avc 
 
 The same idea also underlies the statement in Mishnah 
 Abot I, according to which the Zuggot received the law 
 from the last members of the Great Synagogue. For, 
 according to the Rabbis, this Great Synagogue also in- 
 cluded the last prophets among its members. There is 
 only one slight difference between the line of succession 
 as given in M. Abot and that given in M. Peah and Tosefta 
 Jadayyim, namely, that the name of Antigonos is mentioned 
 in the former between the Zuggot and the Great Synagogue. 
 However, in stating the authority from whom the first pair 
 received the Law, the Mishnah (Abot I, 4) uses the words 
 Dna vyp ' they received from ^/ie77i '. This clearly shows 
 that the first pair, the two Joses, did not receive the law 
 from Antigonos alone. For, if this were the case, the 
 Mishnah would have said : 1J0D vZ^p ' they received from 
 /«'?« '. The expression DHD ib^P warrants the supposition 
 that the two Joses received the Law from the last members 
 of the Great Synagogue, or perhaps Antigonos was con- 
 sidered to have been the younger colleague of Simon. 
 According to this supposition there is no discrepancy 
 between all these talmudic reports. They all assume that 
 the last members of the Great Synagogue, among whom 
 were also the last prophets, transmitted the Law and the 
 traditions directly to the Zuggot or D*03n, i. e. the earliest 
 Pharisaic teachers. 
 
 This transmission of the Law by the prophets to the 
 wise teachers, or the disappearance of the prophets and 
 the rise of the d*D3n, the Pharisaic teachers, took place 
 
Il6 MIDRASH AND MISHNAH 
 
 according to the Rabbis, in tlie time of Alexander the 
 Great, shortly after the overthrow of the Persian Empire 
 (Seder Olam Rabba and Zutta, /. c). This rabbinic 
 chronology finds no difficulty in extending tke time of the 
 last prophets to the end of the Persian period. For by 
 some peculiar error, which we are unable to account for, 
 the Rabbis reduced the entire period of the existence of 
 the second Temple under Persian rule to thirty-four years. 
 They assume that thirty-four years after the second Temple 
 was built, the Persian rule in Judea ceased and the Greek 
 rule began (Seder Olam Rabba, /. c, and Shabbat, 15 a). 
 Accordingly, it was not found strange that Haggai, who 
 urged the building of the Temple as well as the other 
 prophets of his time, should have lived to the end of the 
 Persian period and have handed over the Law and the 
 traditions to their successors, the Q'mn, or wise lay- 
 teachers at that time. 
 
 How the Rabbis could identify these D'D3n with the 
 Zuggot, so that the latter, living in the second century B.C., 
 could be considered the direct recipients of the Law from 
 the last prophets at the end of the fourth century b. C, 
 is not difficult to explain. The Rabbis had a tradition that 
 the High Priest in the time of Alexander the Great was 
 Simon the Just (I) (Yoma 69 a). They also had a reliable 
 report of a high-priest Simon the Just (H) who lived shortly 
 before the time of the Zuggot, either a little before or 
 contemporary with Antigonos. These two Simons they 
 confused with one another. They identified Simon the 
 Just n, who lived about aoo B.C., with Simon the Just I, 
 one of the last survivors of the Great Synagogue who lived 
 at the end of the fourth or the beginning of the third 
 century B. C. In this manner they established a direct 
 
MIDRASH AND MISHNAH I17 
 
 connexion between the prophets who were among the last 
 members of the Great Synagogue and the Zuggot or the 
 D'oan, the wise lay-teachers, who were the fathers of the 
 Pharisaic party. They were probably unaware of the fact 
 that they passed over an interval of an entire century, or 
 it may be that they consciously ignored it, because, as we 
 have seen, there was no official activity of the teachers 
 during that period. 
 
 According to this faulty chronology, then, the Zuggot, 
 or the first pair, Jose b. Joezer and Jose b. Johanan, 
 succeeded the prophets, or the last members of the Great 
 Synagogue, and commenced their activity as teachers of 
 the Law shortly after the overthrow of the Persian Empire 
 by Alexander ; that is to say, not much later than the 
 year 34 of the second Temple. And it is actually this 
 time, i. e. the time of the two Joses, that Saadya fixes for 
 the beginnings of the Mishnah. The meaning of the passage 
 in Saadya's Sefer Hagaluj is now clear, and its date fully 
 agrees with our date for the beginnings of the Mishnah. 
 The passage reads as follows : '»*D D'JB' sj^n KiT\rh ix^jd ''O ^■^n 
 r\'wi pm Dinmi no nui'Da DiK'njn nn'' nn^ cn^sn e^^k .-ik'd 
 j'Dj '3 iiDnn nx unin nixna oy tsyca n''3B> n^nn T\\^-h D'ynNn 
 ip'nyn -yo^ rb'o ^3 isdxm naK-n ^rb'ih wnn i^y niri fixn ba 
 (Schechter suggests the reading i'Nnti'''i') in^i^ ^vh\ rwirh mp ''JD 
 njt^'D Dcty nx iNip''i pn nxi^iD ynoa mxijm nnjiiji. 
 
 We may, therefore, assume with certainty that Saadya 
 had a correct tradition that the teaching of Mishnah was 
 first begun in the time of the first pair, the two Joses. 
 But, misguided by the erroneous rabbinic chronology which 
 he followed, he jDuts the date of this first pair in the year 
 40 of the second Temple. 
 
 The conditions which, according to Saadya, caused the 
 
Il8 MIDRASH AND MISHNAH 
 
 teachers to begin the composition of Mishnah, also point 
 to the time of the two Joses. For, as Saadya assumes, 
 what prompted the teachers to seek to preserve their 
 teachings in Mishnah-form was the fact that the Jewish 
 people were then scattered all over the earth, and the 
 teachers feared that the study of the Law might be for- 
 gotten, 5<:nn bv nu^i yian ba y^^ ''^ P^'^'^ "'^ "'"''''"' nixna 
 naBTi in^li'. These conditions actually prevailed in the 
 time of the two Joses. From the Sibylline Oracle III, 271, 
 we learn that about the middle of the second century L. C. 
 the Jewish people had already scattered all over the earth, 
 and were to be found in every land (comp. Schtirer, 
 Geschichte, III*, p. 4). Indeed, the decree of the two Joses 
 declaring the lands of the Gentiles unclean (Shabbat 15 a) 
 may have been issued for the very purpose of stopping 
 this extensive emigration of the people into foreign lands 
 (see Weiss, Dor, I, p. 99). 
 
 Again, from the quotation of Saadya's statement by 
 the Karaitic writer, it would seem that Saadya designated 
 the teachers, who first composed Mishnah, by the name of 
 ni2N'. If this be so, if Saadya really applied the term nux 
 to these teachers, he could have had in mind only the 
 earliest Pharisaic teachers, or the Zuggot, who are called 
 in the Talmud (p. Hagigah 77 d) oi'iyn nut*. I am, 
 however, inclined to think that Saadya did not use the 
 term nux in referring to these teachers. Saadya probably 
 used the term 13''"iin, as we find it in the Hebrew text 
 (edition Schechter), and which simply means, our fore- 
 fathers. The Karaitic writer who quotes Saadya's state- 
 ment translated this Hebrew word wniii by the Arabic 
 
 Our contention that Saadya's date refers to the time 
 
MIDRASH AND MISHNAH II9 
 
 of Jose b. Joezer might be objected to on the ground that 
 according to Saadya (Schechter, l.c) it took about 500 
 years from the beginnings of the Mishnah to the final 
 completion of our Mishnah. If, then, Saadya's date coincides 
 with the time of Jose b. Joezer, the actual time between 
 the beginnings of the Mishnah and the completion of our 
 Mishnah is scarcely 400 years. This objection, however, 
 can easily be removed. Here again the mistake is due 
 to the faulty chronology followed by Saadya. Having 
 placed the beginnings of the Mishnah, i. e. the time of the 
 first pair, in the year 40 of the second Temple, and assuming 
 that our Mishnah was completed 150 years after the 
 destruction of the second Temple, Saadya had to extend 
 the period of the Mishnah to 530 years. For, according 
 to the talmudic chronology, the second Temple existed 
 420 years. Accordingly the period of time which elapsed 
 between the year 40 of the second Temple and the year 
 150 after its destruction was 530 years. This number was 
 actually given by Saadya, as quoted by the Karaitic 
 writer. The copyist, however, by mistake wrote ^"pn = 5io, 
 instead of y'pn = 530 (see Harkavy, op. cit., p. 195, note 6). 
 The number 500 years, niND K'Dn D''r:'^, assigned to the 
 period of the Mishnah in Sefer Hagaluj (edition Schechter, 
 p. 5), probably represents a round number, as Schechter 
 (/. c.) correctly remarks.