RES 2012.08.02 Halakhah in Light of Epigraphy (Baumgarten, et al.)

Halakhah in Light of Epigraphy

Albert I. Baumgarten
Hanan Eshel
Ranon Katzoff
Shani Tzoref
Place of Publication: 
Vandenhoeck & Ruprecht
Journal of Ancient Judaism Supplements
Series Volume: 

This book gathers a number of articles analyzing halakah during the Second Temple and early rabbinic periods in light of epigraphic findings. This first volume is part of a larger project to publish a series of works resulting from the so-called Jeselsohn Center conferences held at Bar-Ilan University, Israel. The English title of the conference, which was held on May 29, 2008, was fairly non-committal as the editors of this volume candidly point out in the preface (p. 9): “Halakhah in Light of Epigraphy.” The Hebrew title of the conference, on the other hand, “Writing, Scroll, and Book—New Evidence for the Observance of Halakhah in the Rabbinic Period,” highlights controversial topics of ongoing debate among specialists of ancient Judaism that permeate this volume: the very role and prominence of the category of “halakah” for our understanding of Jewish thought and daily life during the Second Temple period and beyond, the social profile of the rabbis, and the question of (dis)continuity between “rabbinic Judaism” and its pre-70 C.E. predecessors. Indeed, some, but not all, of the authors of the papers strive to argue on behalf of the antiquity, at times even normativity, of the halakic materials now contained within the early rabbinic documents, Tannaitic and even Amoraic. There has been a trend for some time, however, in North America and elsewhere, matched by a certain, though not global, reluctance in Israel, to question the antiquity and historical reliability of many of the materials contained in rabbinic sources, which has resulted in a certain reassessment of the social profile of the rabbinic movement, traditionally viewed as the “normative” leaders of Judaism from the “Yavnean period” onwards. Today, the status quaestionis on this issue is very complicated, with the editors of this volume advocating a middle-path view. “At the extremes, the solutions are simple but unrealistic: at one end, the Rabbis controlled all aspects of ancient Jewish life; at the other; the Rabbis were a small island in a vast sea of Jews who lived their lives in ignorant bliss of rabbinic regulation. Yet, common sense suggests that the truth must lie somewhere between these poles” (pp. 8–9). We will see in more specific detail how this topic is treated in a number of the articles of this volume.

The editors of the volume understand the term “epigraphy” in its broadest sense: “Although for the purpose of defining their academic disciplines papyrologists and epigraphists have divided the territory such that papyrologists deal with writing created by the application of one material (typically ink) onto another (typically papyrus, parchment, or pottery shard), and epigraphists deal with writing created by cutting, molding, or placing hard materials (such as inscriptions carved in stone, metal coins, and mosaics), we here use epigraphy to include all these forms of ancient writing” (p.8).

The volume is divided into three parts. Part I, “Halakah and the Scrolls from Qumran,” opens with a narrow philological yet interesting study by Moshe Benovitz entitled, “Booths of the Roof of the Parwar and Branches on the Roof of the Stoa,” (pp. 17–26). After seeking to establish the original reading of על גג האיצטבא (“on the roof of the stoa”) versus על גב האיצטבא (“on the back/on the top of/next to the stoa”) in certain mishnaic passages, Benovitz shows how the rabbis forgot about the original meaning of this phrase that referred to an ancient custom practiced during the Second Temple period of placing Lulavim on the stoa of the courtyard of the temple in order to construct a Sukkah in the temple area itself (cf. Neh 8:14–16; 11QTa 42: 7–17).

Vered Noam’s “‘The Gentileness of the Gentiles’: Two Approaches to the Impurity of Non-Jews” (pp. 27–41; in the table of contents bearing a different title, “‘You Shall Pass through Fire’ (Numbers 31:23): An Early Exegetic Tradition”), is far more ambitious in its aspirations and conclusions, and will certainly stimulate further debate about the question of whether most Jews of the Second Temple period ascribed an intrinsic impurity to Gentiles. Against an impressive “dynasty,” which can be traced back to Adolf Büchler, passing to a certain extent through Jacob Milgrom, E.P. Sanders, and now more recently Hyam Maccoby, Jonathan Klawans, and Christine Hayes, Noam seeks to revive the thesis advocated by the late Israeli scholar Gedalia Alon, namely, that Second Temple Jews viewed Gentiles as intrinsically and ritually impure, ascribing such impurity to the very essence of their being (p. 27).

Noam begins her study by analyzing Numbers 31 (the war against Midian) and its stipulations concerning corpse impurity. She highlights the parallels between Num chapters 31 and 19, the latter setting forth laws concerning the usage of the red heifer for purification from corpse impurity. She underlines the injunctions mentioned in Num 31:19–20 that require the Israelite soldier and the foreign captives as well as the seized booty to be purified after the war. Num 31:21–24 contains additional pertinent laws about purification of vessels acquired during war. What is significant about all of this material is that it reflects, in Noam’s opinion, fundamental, general concepts of purity and impurity that are not restricted per se to the narrow context of war (p. 29).

Noam then turns to the rabbinic interpretation of Num 31:21–24. Remarkably, the ancient rabbis display a quasi-critical approach to this passage, viewing this pericope as an intrusion of a foreign body of laws. The rabbis, however, unlike modern scientific scholarship, apply this legislation to the realm of kashrut rather than corpse impurity, claiming that all utensils used by Gentiles for cooking forbidden food must undergo a process of scorching (הגעלה). Noam suggests that a similar interpretation of this passage appears in the Temple Scroll (pp. 35–36). In addition, she discusses a fragment of the Damascus Document, which she claims rereads Num 31:21–24 in a quasi-rabbinic fashion so that the biblical command to scorch vessels is applied to purifying vessels made by Gentiles because of the concern of idolatry (p. 37). In other words, the rabbis interpreted Num 31:21–24 as applying to vessels containing non-kosher food, whereas the Qumranic interpretation read this same material in light of Gentile idolatry. These rereadings of Num 31:21–24 no longer discuss the purification of vessels from corpse impurity (acquired during times of war), but are concerned with the impurity of such items because they come from Gentiles tout court (p. 40).

The material Noam has brought together is certainly interesting and merits further consideration. However, she exaggerates her conclusions when she states that “[t]his interpretation [i.e., the ascription of impurity to Gentiles and their vessels] became, so it seems, fundamental in all circles during the Second Temple period, as we see in the Temple Scroll and the Damascus Document, and, on the other hand, in tannaitic halakhah” (p. 40). Quite possibly, Noam has brought together evidence that speaks on behalf of two streams of ancient Judaism ascribing impurity to Gentiles and their items: those represented by the Temple Scroll and the Damascus Document (and we should not forget the very tentative restoration and reading of the Damascus Document fragment Noam so heavily relies upon), on the one hand, and the position advocated by some post-70 rabbis, on the other hand. The Temple Scroll and the Damascus Document may be Essene works (Eyal Regev briefly discusses this identification in the same volume on p. 59). Even Klawans and Hayes acknowledge that the Essenes viewed Gentiles as intrinsically and ritually impure, but this Jewish group may represent an exception rather than the general rule. We should also point out that the concern in the Damascus Document seems to focus on the usage of Gentile vessels for the purposes of idolatry—a moral concern shared by many Jews of the Second Temple period which must be differentiated from other matters related to ritual (im)purity. Noam’s findings should be counterbalanced by archaeological findings that suggest elite Judeans living in Jerusalem and its environs had no qualms in importing and using Gentile vessels and food products and even consuming Gentile wine! In her book, Stone and Dung, Oil and Spit: Jewish Daily Life in the Time of Jesus (Grand Rapids, Mich.: Eerdmans. 2011), Jodi Magness briefly discusses amphorae and fish bones imported from Gentile lands as far away as Spain, which have been discovered in Herodian palaces of Jerusalem, Masada, Jericho, and Herodium, as well as the presence of wares such as jars (containing Gentile wine) in the Jewish Quarter Mansions of Jerusalem. We need not impose prescriptions from literary sources (of a particular Jewish provenance) upon this archaeological evidence to imagine that the Jews who purchased such Gentile products were constantly scorching and purifying them. When an ancient text prescribes or orders people to act in a certain way, this usually implies that in reality others remained oblivious to such warnings. In the Diaspora, the situation must been even more porous, and Sanders has already done a good job discussing the practical considerations and insurmountable social barriers for daily Jewish-Gentile interaction in the Greco-Roman world if we posit a widespread Jewish ascription of intrinsic impurity to all Gentiles.

In the following article, “From Qumran to Alexandria and Rome: Qumranic Halakhah in Josephus and Philo” (pp. 44–63), Eyal Regev seeks to demonstrate how several laws attested in the Temple Scroll, MMT, and Jubilees made an impact on the halakic perceptions of Philo and Josephus. If Regev’s findings are true, it will surely lead to a reassessment of the impact of Qumranic halakhah and the profile of the authors who composed such legislation. Indeed Regev claims that “the heritage of the Temple Scroll, MMT, and Jubilees crossed sectarian boundaries and achieved certain popularity with two of the most intelligent and fruitful Jewish leaders, in Alexandria and Rome. The sectarian boundary had been breached. Some precepts of the laws which were first developed at the dawn of the Qumran sects, slightly before the yahad was established, appealed to certain Jewish upper class individuals. We can only imagine how many more Jews, in Judaea and the Diaspora, knew or even accepted the Qumranic halakhah” (p. 63).

Still in Part I, Lawrence Schiffman provides a very useful article on kashrut in the Dead Sea Scrolls (“Laws Pertaining to Forbidden Foods in the Dead Sea Scrolls,” pp. 65–80). There is not much here that is radically new, but the article will prove to be a good reference tool for anyone interested in perusing the pertinent primary sources from the Qumran literature and the current scholarly discussion on this topic. Schiffman’s discussion on the prohibition to eat the sciatic nerve probably constitutes the most interesting contribution of this article (pp. 73–75).

Aharon Shemesh concludes Part I with his article, “The Laws of Incest in the Dead Sea Scrolls and the History of Halakhah” (pp. 81–99). He investigates the interesting exegetical principle used by the author of CD to apply certain laws within the Torah to both men and women: “the precept of incest is written from the point of view of males, but the same (law) applies to women” (ומשפט העריות לזכרים הוא כתוב וכהם הנשים; see p. 84). The author of CD uses such hermeneutics to argue that just as a man is not allowed to marry his aunt, so too a woman is not allowed to marry her uncle. In other words, a man may not marry her niece, a union the Pharisees and the rabbis did permit because they read scriptures differently. In fact, Shemesh proposes that there were at least three different tactics employed during the Second Temple period and beyond to bridge tradition with scripture: 1) the attempt to rewrite the biblical text so as to include certain traditions and practices within the written word (represented, for example, by the Temple Scroll, which Shemesh assumes to be Sadducean); 2) the ascription of traditions to scribes, thereby differentiating certain extra-biblical practices from scripture itself (the pharisaic approach, later reaffirmed by R. Ishmael; 3) the usage of midrashic manipulation to read variations of certain customs all into a particular verse of scripture (adopted by R. Akiva; p. 98). Shemesh’s discussion is fascinating and may shed light on the much discussed passage in Jewish Antiquities (13:297–298) concerning the extra-biblical traditions of the Pharisees, which the Sadducees rejected. For Shemesh, the Sadducees only accepted those traditions they felt they could anchor or literally insert into scripture based on their usage of hermeneutical principles they thought provided legitimate scriptural justification. The Pharisees, on the other hand, accepted without great difficulty the fact that many of their traditions did not enjoy scriptural warrant but simply stemmed from previous generations (pp. 98–99).

Part II, “Halakhah and Quotidian Documents from the Judean Desert,” begins with a detailed survey of the documents found in various refuge camps throughout the Judean Desert (“A Survey of the Refuge Caves and Their Legal Documents,” pp. 103–53). It is impossible to summarize this lengthy and detailed survey, the fruit of the illustrious career of the late Hanan Eshel. Like Schiffman’s article, this chapter will be a useful reference for anyone who would like to learn about the extensive and significant material findings discovered in the Judean Desert.

Steven Fraade offers a refreshing study pertinent for the ongoing debate about the normativity vs. marginality of the rabbinic movement in Jewish society (“Local Jewish Leadership in Roman Palestine: The Case of the Parnas in Early Rabbinic Sources in Light of Extra-Rabbinic Evidence,” pp. 155–73). Fraade reminds his audience how the question of the leadership role of the early rabbinic sages in broader Jewish society in Palestine in the period following the two failed revolts has come under renewed scrutiny in recent scholarship, with an overall negative result (p. 155). Fraade does not tackle this huge topic in all of its aspects, an impossible feat. Instead, he limits his task to the study of an interesting term, parnas, which appears in Tannaitic sources as well as nearly contemporaneous epigraphic documents from the Bar Kokhba period. After discussing the various meanings of the term, which stems from Greek and is used to denote individuals who carry out various political, civic, social, and economic functions, Fraade arrives to the quite reasonable conclusion that the Tannaitic passages employing this term reveal a real desire on the part of certain rabbis to become parnasim in their local communities. To the extent that some rabbis served in such a capacity, they would have presumably attempted to extend their influence beyond rabbinic circles. “If the rabbis were not, in the century or two following the failed revolts, ‘central’ to Jewish society, neither were they necessarily ‘marginal’ to it, but in slow transit between the latter and the former” (p. 173). Fraade’s conclusions lie not too far from the motto embraced by the editors in the preface of this volume.

Shama Friedman devotes a short study on various forms of bills of divorce that appear in the Judean desert deeds, the Mishnah, and medieval rabbinic documents (“The Jewish Bill of Divorce—From Masada Onwards,” pp. 175–82). The overlap in terminology and phraseology between such documents, which span several centuries, is indeed remarkable. Friedman, however, judiciously refrains from drawing general conclusions on how his study could prove or disprove the antiquity and prominence of rabbinic halakah.

David Goodblatt’s article, “Tannaitic Traditions and Dating Documents in Second Temple Judaism,” (pp. 185–202) is another one of those articles in this volume that is hard for a reviewer to summarize because of the data it surveys. This article, contrary to what the title could imply, does not deal with the issue of dating Second Temple documents or rabbinic traditions. Rather, Goodblatt looks at various systems and terms used in such literature for dating epochs and counting years. An alternative title containing such words as “dating formulas” would probably have proven more appropriate so as to not disappoint readers in search of articles dealing with the thorny question of dating Tannaitic traditions. At the end of the article, Goodblatt points out how the rabbis avoided using “freedom eras,” that is, various dating formulas referring to the revolts of 66–73 C.E. and 132–135 as found on ancient coins and other documents. He wonders whether the rabbis deliberately refrained from using such vocabulary for the same reasons they avoided using the term “Zion” in a conscious effort to suppress memories of the Jerusalem-centered ideology of the First Revolt (p. 201). Goodblatt does not provide a definitive answer to this question, ending instead with a personal declaration containing its own formula of freedom: “How fortunate we are today, ashrenu mah tov helqenu, that we are able to count ‘in the sixty-first year of the State of Israel’” (202).

The third and last part of this volume, “Halakah and Epigraphic Sources,” contains an interesting study on Tefillin by Yonatan Adler (“The Content and Order of the Scriptural Passages in Tefillin: A Reexamination of the Early Rabbinic Sources in Light of the Evidence from the Judean Desert,” pp. 205–29). Adler performs his inquiry with sound methodology: “Rather than looking to the rabbinic literature in search of answers to the questions posed by the earlier epigraphic material, in the present study, I propose to address the issue from the reverse direction, focusing on the contribution that the Judean Desert evidence may provide to our understanding and appreciation of the pertinent rabbinic sources” (p. 206). On the one hand, the material evidence from the Judean Desert clearly indicates that Exod 13:1–10, Exod 13:11–16, Deut 6:4–9, and Deut 11:13–21 were clearly seen as individual scriptural pericopes. The Tannaitic sources relied on this common practice in using keywords to refer to the inclusion of these four pericopes in rabbinic Tefillin (p. 211). On the other hand, there are discrepancies between the Tefillin of the Judean Desert and their rabbinic counterparts. For example, four arm-Tefillin exemplars from the Judean Desert contain pericopes that are not arranged in their scriptural order (according to rabbinic halakah). Adler correctly infers that these exemplars provide evidence that scribes and Tefillin practitioners from as late as the second century C.E. were unaware or not concerned with rabbinic prescriptions concerning the order of these pericopes (p. 223). It may suggest a relatively late date for the promulgation of the (rabbinic) halakah. There are other benefits in reading the rabbinic sources in light of the epigraphic evidence. For example, in one passage in the Sifre, Adler shows how the rabbis were not simply theorizing about the inclusion of the text of the Decalogue in Tefillin but actually responding to sectarian Jews who did include these words in their phylacteries (p. 228).

In his article, Chaim Ben David revisits the famous Rehov inscription in an attempt to elucidate the logic of its order and placement of geographical names of cities from the area of Palestine (“The Rehov Inscription: A Galilean Halakhic Text Formula?” pp. 231–40). He argues that the Galilean formulation and orientation of this inscription account for the logic of its wording and order, explaining thereby the differences between this inscription and its rabbinic counterparts.

Tal Ilan probably provides the most pertinent and provocative study in this volume because she highlights the potential relevance of her research for addressing the contemporary and controversial question of burying non-Jews in Jewish cemeteries. In her article, “Kever Israel: Since When Do Jews Bury Their Dead Separately and What Did They Do Beforehand?” (pp. 241–54), Ilan perspicaciously argues that the systematic opposition and horror toward burying a non-Jew in a Jewish cemetery (or a Jew in a Gentile graveyard) is a rather recent phenomenon. Not one biblical or talmudic passage categorically prohibits such a practice. According to the 14th edition of the Bar-Ilan Responsa database, it is not recorded in Jewish sources before the 16th century. In fact not even the Mishneh Torah of Maimonides or the Shulhan Arukh contains any prohibition to such a practice (p. 242). A baraita in the Babylonian Talmud even allows Jews to bury Jews and Gentiles in the same graveyard for the sake of maintaining peace (b. Git. 61a). The archaeological evidence confirms Ilan’s claim that ancient Jews did bury their dead in the same graveyard as Gentiles. Particularly the archaeological evidence from the Diaspora (mainly from Asia Minor and North Africa) speaks on behalf of such a reality (pp. 245–53). But Ilan finds evidence for such a practice even in the Land of Israel in the towns of Zoar (pp. 248–51) as well as Beth Shearim (pp. 251–54; the evidence is not as strong in the latter case). Ilan concludes with a powerful and provocative statement of immense actuality for contemporary Judaism and those responsible for the administration of cemeteries in the State of Israel: “The halakic practice of segregating Jewish burials and viewing with horror the mixture with non-Jewish dead is a relatively recent, almost modern phenomenon” (p. 254).

Ze’ev Safrai and the late Chana Safrai’s article on Papyrus Oxyrhynchus 840 revisits this intriguing papyrus, providing a new English translation of its Greek text and a thorough halakic analysis of its contents. The article is commendable for seriously considering the description of Jewish practice contained in this papyrus, including its rather singular reference to the custom of washing one’s feet before entering the temple. On the other hand, both authors occasionally over-impose too fine a halakic (and rabbinic) worldview onto a text that is not very concerned with such matters. While the authors are correct in their assertion that the references in this papyrus to the temple space of Jerusalem and purification rites are accurate, in my opinion, they misunderstand certain matters.

First, it should be emphasized that the literary evidence the authors mainly draw from in order to prove that foot washing was practiced before entering the temple (and elsewhere) is extremely late: rabbinic sources from talmudic and medieval periods (citing Rishonim!). While it is laudable and understandable to look into later sources, given the state of the literary evidence, Islamic influence upon the rabbinic medieval literature cannot be easily discarded. Indeed, the silence of Second Temple sources on the question of foot washing is quite telling. The argument on p. 265 with regard to this reality is tendentious and in the end an argumentum e silencio: “it is possible that the emenders and copyists were the ones who removed foot washing from the sources. We will never know how many sources were emended in this way.”

Nevertheless, the proposal that some Jews of the Second Temple period did practice foot washing even when not entering the temple, for example before meals or entering a synagogue, is compelling. Surprisingly, the authors point to m. Ber. 9:5, a far earlier text than the ones they investigate, only on p. 266, without providing any detailed analysis of this passage, which clearly calls for washing one’s feet before entering the temple. In addition, their interpretation of certain Mikvaot discovered in Palestine that are too small for bodily immersion as being originally designed for foot washing (rather than hand washing as suggested by Y. Elitzur) is not without merit (pp. 260–62). Jews normally performed hand washing by pouring water from a vessel. Consequently, there would have been no need to design a small Mikveh to carry out such a duty, which in addition would require people to lean down and dip their hands, not the most pragmatic way of fulfilling such a practice.

With regard to the statement in Papyrus Oxyrhynchus 840, “thou has washed in these running waters wherein dogs and swine have been cast night and day,” the authors provide an unconvincing halakic interpretation. They believe that this statement implicitly refers to a realistic halakic problem about aqueducts passing through a cemetery (p. 273). However, there is nothing in the context of this papyrus that even alludes to such halakic debates as we discover, for example, in tractate Yadayim. The authors declare that within this halakic debate some Jews believed that a person entering an aqueduct was liable to cause a stoppage to the flow of the water (which would render it unfit), and then suggest that Papyrus 840 posits for rhetorical effect that animals could also cause similar damage to such water. The most economic explanation, however, is that the Jesus of Papyrus Oxyrhynchus 840 refers to pigs and dogs because both of these animals are disgusting to Jewish eyes. True, such creatures normally cannot render water impure, at least when alive, but the argument the author of this gospel seeks to make relies primarily on the question of hygiene in order to highlight the supposed hypocrisy of the Pharisaic priest who condemns Jesus and his disciples for not immersing their bodies and washing their feet before entering the temple. Jews of the Second Temple period probably washed their dirty, dusty feet before entering the temple not for purification (since they would immerse their entire bodies anyways) but out of respect for the temple space (as suggested, for example, by m. Ber. 9:5). The Pharisaic priest criticizes Jesus and his disciples for entering the temple with dirty feet. Jesus retorts that the body of the of Pharisaic priest is entirely filthy. He has bathed himself in dirty water contaminated (not in a ritual sense) by dogs and pigs. In response to his neglect for not immersing his entire body before entering the temple, Jesus condemns the priest for overlooking the moral purification of his soul, a common trope we find elsewhere in the synoptic gospels. Papyrus Oxyrhynchus 840 merits a thorough halakic analysis and comparison with Luke 11:37f., since the latter passage also refers to the practice of immersing (hands or the entire body?) before eating and draws similar conclusions about the subordination (but not the abrogation) of ritual concerns to the cultivation of moral purity.

Finally, in the conclusion of their article, both authors roundly state the following: “In the scholarly literature there is a lively debate about the usefulness of rabbinic sources for the study of religious life in the late Second Temple period. The argument is heard that rabbinic sources are useless for that purpose because it would have been impossible for the Sages to remember details 200 years after the fact. This argument is unsound, because its premise, the failure of memory, is refuted by our papyrus” (279). If only matters were so simple! It would have been better for the authors of this article to have confined their affirmations vis-à-vis their convincing demonstration of the halakic accuracy of the Jewish practices outlined in Papyrus Oxyrhynchus 840. No serious scholar has diagnosed the rabbis with acute amnesia. A host of other arguments exist that question the usage and reliability of rabbinic sources for describing Jewish society both before and after 70: the rabbinic non-interest in history, the very non-normativity of rabbinic texts when read in light of archaeological findings (e.g., synagogues of Late Antiquity), the rhetorical nature of certain rabbinic statements (ideal rather than descriptive, reification, etc.), the modification and adaptation of earlier sources for ever changing and newer circumstances, and so on.

The volume closes with an article by Guy Stiebel, “‘Meager Bread and Scant Water’—Food for Though at Masada,” pp. 283–303, which is most interesting for its archaeological survey and discussion of daily life in Masada during the days of the First Jewish Revolt. Stiebel concludes that the people at Masada were not composed of one monolithic group but of several different persons besides the Sicarrii who had to figure out how to live and survive together in a confined space for a sustained period of time.

Overall, this volume is of immense value if only because of the vast scope of literary and epigraphic evidence that is surveyed and assessed by an illustrious group of scholars. The various studies of the volume reveal the great promise and rewards awaiting those who are ready to read literary evidence in light of epigraphic finds (or vice versa)—a corrective still very much in need in many historical and exegetical inquiries that rely too heavily on one set of data at the cost of neglecting the other. This volume is also of great importance because it presents various takes by modern scholars, primarily from Israel but also elsewhere, on the ongoing debate about the historicity and (non-)normativity of rabbinic literature. Some of the authors of the volume tend to take a more “conservative” view on such matters, while others draw more moderate conclusions about a topic that will undoubtedly continue to fuel scholarly debate for years to come.

Isaac W. Oliver, Bradley University, USA