The Memory of the Temple and the Making of the Rabbis. Naftali S. Cohn

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СКАЧАТЬ that the sages—presumably, a group of rabbis—are at a distance from the actual scenario.¹¹ The Mishnah’s report also leaves ambiguous how the case comes to the sages: whether the person involved comes to the sages or even has knowledge that the case is brought to them.¹² This story gives no hint as to whether the rabbinic ruling is followed—though there is evidence in some examples that it is, and in others that it is not.¹³

      Despite the ambiguity in the setting of this narrative and most like it, it is relatively clear that the sages are not arbitrating any dispute. What they are doing is issuing an opinion about an ambiguous matter of law. In this example, the question was: Is this potentially problematic configuration of planting in a vineyard permissible (or, is the produce from such a planting permissible)? The law is that it is permissible.

      The best explanation for mishnaic case stories such as this is that they depict the rabbis functioning with respect to Torah as Roman jurists function with respect to Roman law. They show rabbis issuing opinions in matters of Jewish law that resolve an ambiguity in a case in precisely the same way that Roman jurists performed their function of respondere, issuing legal opinions formulated as responses to specific questions arising in specific cases.¹⁴ For example, in the following case, recorded in Justinian’s Digest 2.14.47, Scaevola responds to a question of law that arises in a case involving a sale of land and the collection of payment:

      A buyer of land undertook that he would pay twenty [unit of currency not specified] and promised this amount by stipulation. Afterward, the seller undertook an agreement by which he would be content with thirteen and would receive this within a certain time. The debtor, when sued for payment of the latter amount, made a pact that if it was not paid within a certain time, an action would lie against him on the original undertaking. The question is asked whether, when the later pact had not been kept, everything owed under the original undertaking can be recovered. I replied that, according to what had been set forth, it could.¹⁵

      As Catherine Hezser points out, responsa such as these can be divided into three parts: “a brief description of the legally problematic situation (casus), the formulation of the question (quaestio), and the legal expert’s solution to the problem at the end (responsum).”¹⁶ The mishnaic case stories differ slightly from the contemporary Roman form in that the legal question is rarely stated explicitly and the language of question and response is not typically used. But there are responsa of Roman jurists that omit the questions that are similar to a common type of mishnaic example that narrates only the case and the rabbinic ruling. Compare, for example, Digest 2.14.42 with Mishnah Nazir 2:3:

      A debtor and creditor agreed that the creditor should not bear the burden of tax due on land pledged to him but that the debtor should be required to pay it. I replied that such an agreement should not be enforced insofar as it relates to the imperial treasury. For it is settled that provisions of the revenue law are not set aside by the pacts of private persons. (Digest 2.14.42, Papinian, Replies, book 17)

      There was a case [ma‘ăśeh] with a certain woman who was drunk, and they poured [another] cup [of wine] for her. She said, “I am a Nazirite from it” [thus taking a vow of abstinence from wine and, according to mishnaic law, inadvertently taking upon herself all the Nazirite restrictions]. The sages said: She only meant [to say], for instance, “This is a sacrifice for me” [a non-Nazirite vow, and so her apparent Nazirite vow of abstinence is null and void]. (Mishnah Nazir 2:3)¹⁷

      These examples are quite similar in presenting only the case and then the ruling—though the ruling is oblique in the mishnaic case. This mishnaic example lacks the explanation of the ruling, which is given in the example from the Digest, but such explanations can be found in a number of mishnaic case stories, such as Mishnah Terumot 4:13: “Rabbi Yose said: A case came before Rabbi Akiva regarding fifty bunches of greens into which one bunch which was half tĕrumāh [sacred produce to be eaten by priests] had fallen. And I said before him, ‘Let it be neutralized [that is, the small fraction that was sacred is now considered non-sacred and the entire mixture permitted to be eaten]; not because tĕrumāh is neutralized in a one in fifty-one mixture but because there were 102 halves’ [that is, it is neutralized in a 1:102 mixture].”

      This example is unusual in that it depicts a rabbinic disciple’s training: the student, Rabbi Yose, does not issue an actual ruling but suggests it to his master, to whom the case had come. We are not told about the final ruling by Rabbi Akiva; presumably, he accepted what Rabbi Yose had said. Regardless of these details of the actual ruling, we are given in this example an explanation for the ruling, similar to what we are given in the example from Papinian.

      Though most mishnaic case stories lack the formal language of question and response, there are a handful of instances in which the rabbinic legal opinion is specifically given in response to being asked, and these cases are especially similar to the typical Roman responsa. In Mishnah ‘Avodah Zarah 5:2, for instance, a certain Boethus, son of Xenon (bōytas ben zinōn), asks the sages about his case: “A case with Boethus, son of Xenon, who brought dried figs on a boat, and a barrel of [forbidden] libation wine broke and [the wine] fell onto [the dried figs]. And he asked the sages, and they permitted them” (emphasis added). This particular example is more personal than the Roman examples from the Digest because the individual who asked the legal question is named; nevertheless, the act of asking is quite similar to the formal asking in the responsa of Roman jurists.¹⁸

      Based on the evidence marshaled thus far, in most examples, the Roman and rabbinic responsa may differ slightly in form, but the role of the rabbinic jurist, clarifying and determining the law in real cases, is nearly identical to that of the Roman jurist.¹⁹ And the handful of instances in which the form is in fact the same are particularly suggestive of the parallel between the rabbinic and the Roman juristic role.²⁰

      In the comparable juristic and mishnaic case stories, there is a second similarity between the Roman jurists and the rabbis: both are engaged more generally in creating the law.²¹ Martin Goodman, who was first to suggest that the rabbis are akin in their role to Roman jurists, emphasizes the common interest in the creation of law and especially the codification of law: “The relation of the rabbis to the courts is easily explicable in terms of the relation of iurisprudentes (jurists) to a legal system. Not unlike contemporary lawyers such as Ulpian from nearby Tyre, the rabbis spent their time codifying the law as they saw it, inventing problems to solve according to the principles they evolved from these laws, adding a strong element of what they would like the laws to be, and making the results known to the nonacademic public.”²² Goodman and those who make the same comparison in his wake see the rabbis as jurists primarily because their activity of creating law and especially codifying law resembles that of the Roman jurists and because the finished products of their work, the Mishnah and the Talmud, resemble law collections produced by Roman jurists.²³

      Additional evidence throughout the Mishnah suggests further similarities between the rabbis’ and the Roman jurists’ typical activities. Rabbis are often depicted as masters teaching or interacting with their disciples, or as disciples learning from their masters. Similarly, rabbis of presumably equal standing are often depicted engaging in legal debate and discussion with one another.²⁴ Each of these types of academic interaction mirrors similar academic activities of Roman jurists.²⁵

      Summing up the Mishnah’s evidence: the rabbis are typically depicted as jurists who issue opinions on matters of Jewish law in response to ambiguities arising in cases, who codify the law they create, who teach disciples, and who debate matters of law.

      While the rabbinic legal role as pictured is strikingly similar to that of Roman jurists, there is a fundamental distinction between the two. Roman jurists at the time, like the Roman legal system in general, seem to have focused primarily on civil and family law and not sacred law. Historically, the juristic role in СКАЧАТЬ