Shaye J.D. Cohen. “Judaism to the Mishnah: 135-220 C.E.” Part II

Greco-Roman Period
Christianity and Rabbinic Judaism- a Parallel History of their Origins and Early Development. Ed. Hershal Shanks. Washington D.C.- Biblical Archaeology Society, 1993.

The organization of the Mishnah

The Mishnah is a large work, some 800 to 1,000 pages in English translation. 68 It consists of laws,
debates on legal questions and brief narratives on legal subjects. Strangely enough, it contains few
citations to, or explanations of, Scripture. Moreover, with the exception of an atypical tractate called
Pirqei Avot (The Sayings of the Fathers), the Mishnah contains very homiletical or ethical material. Nor
does it contain explicit theology or eschatology. In short, the Mishnah is a book of laws.
It is divided into six orders, or divisions, which are in turn subdivided into 63 tractates. Each tractate
is in turn divided into chapters, and each chapter into individual pericopes or sections, each of which is
often called, simply, a mishnah.

Each of the orders is devoted to some overarching theme or set of issues, and each of the tractates in
turn addresses an aspect of the theme. The first order, Zera’im, or “Seeds,” concerns the obligations
incumbent upon an Israelite before he—for the Mishnah the paradigm of normality is the Israelite
male—may partake of the bounty brought forth from the earth. The earth is the Lord’s, and the Israelite,
in return for tenancy on the lord’s domain, must either recite benedictions or separate some of the
produce for the poor or for the priest or for the Levite, or present some of it at the Temple. The second
order,Mo‘ed, or “Appointed Times,” concerns Holy Times, the sacred times of the year and their rituals,
especially the rituals that were enacted in the Temple (even though it had been destroyed long before).
The third order, Nashim, or “Women,” concerns marriage law and the authority of a husband to cancel
his wife’s oaths. The fourth order, Nezikin, or “Damages,” is devoted to interpersonal relations- civil
law, torts, contracts, bailments, the authority of the judiciary, relations between Jews and Gentiles and
relations between one Jew and another (here appears the anomalous tractate Pirqei Avot). The fifth
order, Kodashim, or “Holy Things,” concerns the sacrificial cult, the structure of the Temple, the misuse
of animals and objects dedicated to the cult and the slaughter of nonsacrificial animals. The sixth order,
Tohorot, or “Purities,” concerns the purity system- sources of impurity, the means by which impurity is
transferred, objects susceptible to impurity and modes of purification.

This large and complex work is highly edited and stylized, suggesting the existence not only of a
strong editor but also of a sustained period of peace and stability (from after the revolt of 132–135 C.E.
to about 220 C.E.). The Mishnah demonstrates a passion for classifying things, for numbering the
resulting categories and for exploring the precise contours of the boundary that separates one category
from another. The Mishnah also shows a passion for stating abstract principles and demonstrating how
the principles are to be applied with different results in different cases. 69 But for all its abstraction and
formal precision, the Mishnah is not a collection of Aristotelian treatises. It is highly digressive and
often links one pericope to the next by verbal association or some other literary criterion. Most
important, the Mishnah is not arranged logically. It has no beginning or end; it has only a middle. The
closest thing to an introduction to the work is tucked away in the fourth order in the opening chapters of
the tractate Pirqei Avot; there we learn that the authority assumed by the Mishnah can be traced back to
Moses at Sinai. For the rest, however, the Mishnah starts where it wants and ends where it wants; it
treats in great detail fragments of themes, but seldom treats an entire theme.
Thus for example, the very first mishnah addresses the question “From what time in the evening may
the Shema be recited?” (Berakhot 1-1). But how do we know that this prayer is to be recited in the
evening at all? And by whom? And why? All these questions are logically anterior to the question posed
by the mishnah, but the mishnah ignores them completely.

The Mishnah as a book of laws, not a law book

The Mishnah is, as I said, a book of laws; yet it is not a law book. Unlike most law books, it contains
numerous disputes and divergent opinions without giving any obvious indication which opinion is the
one to be followed. Unlike most law books, it often omits the penalty for infractions of its rules or the
manner in which a wrong is to be righted. Unlike most law books, it describes institutions (the Temple,
the Sanhedrin) and authorities (the high priest) and rituals (the sacrificial cult) that no longer existed
when the book was written. Unlike most law books, it all but ignores the institutions (the synagogue)
and authorities (the Roman government, the municipal governments in Palestine, the rabbis
themselves 70 ) and rituals (public prayer, public and private study of Torah 71 ) that did exist when the
book was written. The Mishnah thus is not a law book. 72

If not a law book, what is it and why was it written? The answer remains elusive. The Talmudim,
which are in effect commentaries on the Mishnah, state on several occasions that the Mishnah was edited
or arranged by Rabbi Judah the Patriarch. 73 This assertion is universally accepted as true, although it is
nowhere advanced by the Mishnah itself.
Why did Rabbi Judah edit the Mishnah? The publication of the Mishnah was an integral part of his
program to extend the power of the patriarchate. By superseding previous legal collections and
incorporating them into a single Mishnah, Rabbi Judah asserted his authority over the rabbinic
movement, the intended audience of the new book- From now on all rabbinic study would focus on one
collection only—his.

Yet the Mishnah is more than an implicit assertion of power by the patriarch. It is the core document
of Rabbinic Judaism, forming the foundation for virtually all rabbinic literature that would follow it,
from the third century C.E. to our day. Although the Mishnah has become a “classic,” safely located
within the confines of the sacred traditions of Rabbinic Judaism, the Mishnah was (and to some extent
still is) a radical work.

The Mishnah is radical in that it is the first Jewish work, whether biblical or post-biblical, whether in
Hebrew or Greek or Aramaic, whether Palestinian or from the Diaspora, to attribute conflicting legal
opinions to named individuals who, despite their differences, belong to the same group. The legal
materials in the Hebrew Bible are not uniform, to be sure. The Holiness Code (Leviticus 19–20 and
related passages), the Covenant Code (Exodus 21–24), the priestly laws, the laws of Deuteronomy, etc.
are products of different schools and different philosophies, and those differences are often manifest in
legal contradictions. But the editor of the Torah combined these codes anyway, without even hinting to
the reader that the collections do not always agree, thus allowing later Jews to pretend (or rather, to
insist) that the collections always do agree. But the Mishnah allows no such pretense.
The very first mishnah opens with a question (“From what time in the evening may the Shema be
recited?”) which leads to a second question (“Until what time in the evening may the Shema be
recited?”) that receives three different answers, each one ascribed to a different authority. The Mishnah
not only tolerates legal disputes, it relishes them. Legal dispute is the core of Mishnaic discourse. And
the disputes are open-ended- The Mishnah does not contain any explicit rules by which the winning
position can be determined. 74 Whether these disputes are entirely rhetorical (in other words, the Mishnah
is the record of a debating society) or whether they mirror real diversity in practice is not clear; if the
latter, the social mechanisms that held this disputatious and fractious group together must have been
remarkable, but they too are unclear.

The Mishnah is radical in another respect, too. With few exceptions it does not attach its legal rulings
to Scripture. In the opening chapter of the tractate Pirqei Avot, we are told of a chain of tradition that
links Moses at Mt. Sinai to the rabbis of the Mishnah, specifically the patriarchal house of Rabbi Judah.
Pirqei Avot thus asserts that rabbinic authority derives from Moses and God. But the Mishnah itself is
not interested in proving this assertion. In the Mishnah, rabbis debate numerous points of law but seldom
cite the biblical authority that would substantiate their positions. Many of their rulings probably were
derived from a close reading of the laws of the Torah, but the Mishnahobscures this fact by omitting the
scriptural source.

As a result, it is impossible to tell from the Mishnah whether a given ruling is derived from Scripture
or not. Nor does the Mishnah reveal whether a given ruling is ancient or modern, traditional or
innovative. The authority for the Mishnah’s statements is entirely internal to the Mishnah itself-
anonymous sages as well as named sages speak, and the reader is supposed to respect their words. By
ignoring all external sources of authority, including Scripture, the Mishnah implicitly presents itself as a
source of authority, endorsing the right of its human authors to debate and legislate. (Presumably such a
view would also enhance the power of the patriarch to legislate.)

This radical and unsettling thesis was rejected by virtually all of the Mishnah’s commentators,
beginning with the Talmudim and the tannaitic commentaries on the Torah. 75 These works attempt to
demonstrate that the Mishnah—not just the Mishnah in general or in theory, but the specific rulings of
the Mishnah, one by one—derives from Scripture- law must be subordinate to revelation, and must
somehow be derived from the Torah of Moses. In this conception the only innovation allowed is the
innovation that claims to be traditional, that claims to be the working out of what had been revealed to
Moses long before. Thus in one sense the Mishnah lost; its implicit defense of the autonomy of human
reason was rejected. But in another and much larger sense the Mishnah won; it gave rabbinic learning a
secure base on which to build for the future.