Mishnah and Tosefta
MISHNAH AND TOSEFTA
MISHNAH AND TOSEFTA . The Mishnah is a law code and school book, containing the legal and theological system of Judaism. It was brought to closure about 200 ce under the auspices of the head of the Jewish community of the Holy Land at that time, Yehudah ha-Nasiʾ, and has remained the foundation stone of Judaism from that time to the present. The Tosefta is a collection of supplements to the Mishnah, with approximately three-fourths devoted merely to citation and amplification of the contents of the Mishnah. The other fourth of the whole is constituted by laws essentially autonomous of, but correlative to, the Mishnah's laws. The Tosefta has no independent standing, being organized around the Mishnah. Tosefta was formulated and gathered together some time in the centuries following the closure of the Mishnah, with the fifth century being a safe guess for the time of closure. These two documents together are extensively cited and analyzed in the two Talmuds, one produced in Babylonia about 500 ce, the other in the Land of Israel about 400 ce.
The Mishnah (with the Tosefta) is important in Judaism because it is represented, from the time of its closure onward, as part of "the one whole Torah of Moses, our rabbi," that is, as revealed to Moses at Sinai by God. The Mishnah and all of the documents flowing from it later on, beginning with the Tosefta and the two Talmuds, thus form an integral part of the canon of Torah, that is, of Judaism. The Torah myth distinguishes two Torahs of Sinai. One is in written form, the other, oral. This oral Torah, encompassing the Mishnah and its continuators and successors, was revealed alongside the written Torah. But it was transmitted in a different way. While, as its name indicates, the one was written down, the other was formulated for memorization, and it was then transmitted in this easily memorized form.
Viewed structurally, the two Torahs of Judaism may be compared to the conception of an old and a new testament in Christianity, thus:
The top line on both sides speaks of the same holy book, but with the words particular to Christianity and Judaism, respectively. That is to say, the biblical books that Christians know as the "Old Testament," Judaism knows as the "written Torah." The Mishnah is the first and principal expression of this other Torah, the oral Torah revealed to Moses at Sinai. It thus is as important to Judaism as the New Testament is to Christianity.
Six divisions, or orders, comprise the Mishnah's system: Zeraʿim (Seeds, or Agriculture), Moʿed (Appointed Times), Nashim (Women), Neziqin (Damages, i.e., civil law), Qodashim (Holy Things, i.e., cultic law), and Ṭohorot (Purities, i.e., cultic taboos). Each division is divided into tractates, and each tractate into chapters and paragraphs. There are, in all, 63 tractates, divided into some 531 chapters.
The critical issue in economic life (i.e., in farming) is treated in the Mishnah's first division, Agriculture, or Seeds. This is in two parts. First, Israel, as tenant on God's holy land, maintains the property in the ways God requires, keeping the rules that mark the land and its crops as holy. Next, the hour at which the sanctification of the land comes to form a critical mass, namely, in the ripened crops, is the moment ponderous with danger and heightened holiness. Israel's will so affects the crops as to mark a part of them as holy, the rest of them as available for common use. The human will is determinative in the process of sanctification.
In the second division, Appointed Times, what happens in the Land of Israel at certain special times, especially in the lunar year, marks off areas of the land as holy in yet another way. The center of the Land of Israel and the focus of its sanctification is the Temple. There the produce of the land is received and given back to God, the one who created and sanctified the Holy Land. At these unusual moments of sanctification, the inhabitants of the Holy Land in their social being in villages enter a state of spatial sanctification. That is to say, the village boundaries mark off holy space, within which one must remain during the holy time. This is expressed in two ways. First, the Temple itself observes and expresses the special, recurring holy time. Second, the villages of the Holy Land are brought into alignment with the Temple, forming a complement and completion to the Temple's sacred being. The advent of the appointed times precipitates a spatial reordering of the land, so that the boundaries of the sacred are matched and mirrored in village and in Temple. At the heightened holiness marked by these appointed times, therefore, the occasion for an affective sanctification is worked out. Like the harvest, the advent of an appointed time, a pilgrim festival, also a sacred season, is made to express that regular, orderly, and predictable sort of sanctification for Israel that the system as a whole seeks.
If for the moment we now leap over the next two divisions, the third and fourth, we come to the counterpart of the divisions of Agriculture and Appointed Times. These are the fifth and sixth divisions, Holy Things and Purities. They deal with the everyday and the ordinary, as against the special moments of harvest, on the one side, and special time or season, on the other.
The fifth division, Holy Things, is about the Temple on ordinary days (i.e., not during appointed times). The Temple, the locus of sanctification, is conducted in a wholly routine and trustworthy, punctilious manner. The one thing that may unsettle matters is the intention and will of the human actor. This actor, the priest, is subjected to carefully prescribed limitations and remedies.
The division of Holy Things generates its companion, the sixth division, Purities, the one on cultic cleanness. In the sixth division, once we speak of the one place of the Temple, we address, too, the cleanness that pertains to every place. A system of cleanness, taking into account what imparts uncleanness and how this is done, what is subject to uncleanness, and how that state is overcome—that system is fully expressed in response to the participation of the human will. Without the wish and act of a human being, the system does not function. It is inert. Sources of uncleanness, which come naturally and not by volition, and modes of purification, which work naturally, and not by human intervention, remain inert until human will has imparted susceptibility to uncleanness, until, that is, human will introduces into the system some object of uncleanness—food and drink, bed, pot, chair, or pan—that becomes subject to contamination. The movement from sanctification to uncleanness takes place when human will and work initiate it.
This now brings us back to the middle divisions, the third and fourth, Women and Damages, respectively. They take their place in the structure of the whole by showing the congruence, within the larger framework of regularity and order, of human concerns of family and farm, politics and workaday transactions among ordinary people. For without attending to these matters, the Mishnah's system does not encompass what, at its foundations, it is meant to comprehend and order: Israel's whole life. So what is at issue is fully cogent with the rest.
In Women, the third division, attention focuses upon the point of disorder marked by the transfer of that disordering anomaly, woman, from the regular status provided by one man to the equally trustworthy status provided by another. That is the point at which the Mishnah's interests are aroused: once more, predictably, the moment of disorder.
In Damages, the fourth division, are two important concerns. First, there is the paramount interest in preventing the disorderly rise of one person and fall of another, in sustaining the status quo of the economy, of the house and household, of Israel, the holy society in eternal stasis. Second, there is the necessary concomitant in the provision of a system of political institutions to carry out the laws that preserve the balance and steady state of persons.
The third and fourth divisions take up topics of concrete and material concern, the formation and dissolution of families and the transfer of property in that connection, the transactions, both through torts and through commerce, that lead to exchanges of property and the potential dislocation of the state of families in society. They deal with the concrete locations in which people make their lives, household and street and field, the sexual and commercial exchanges of a given village.
So the six components of the Mishnah's system insist upon two things: first, stability, second, order. They define as a problem something out of line, therefore dangerous. Laws for a woman must be made, in particular, when she changes hands, moving from father to husband, or, in divorce, from husband to father. Laws for the governance of civil transactions must make certain that all transactions produce equal and opposite results. No one emerges larger than when he entered; none is diminished. Equal value must be exchanged, or a transaction is null. The advent of sacred time, as we shall see, not only imposes the opposite of the Temple's rules upon the village. The holy day also has the effect of linking the Israelite to one place, a particular place, his or her village. So for a moment sacred time establishes a tableau and creates a diorama, a still place of perfection in a silent and perfected moment.
The Mishnah came into being during the first and second centuries of the common era. The document contains ideas likely to have circulated even before the destruction of the Temple in 70 ce, among people whose traditions were carried forward and ultimately written down in the Mishnah itself. But the structure of the system presented by the Mishnah is well attested only after the Bar Kokhba War (c. 132–135). It is attributed principally to authorities who flourished in the middle of the second century. Accordingly, using antecedent ideas and laws, the document came into being at the end of two wars—the first war against Rome (66–73), culminating in the destruction of the Temple, and the second, Bar Kokhba's. Since the Mishnah emerges after a time of wars, the one thing we should expect to find is a message about the meaning of history, an account of events and their meaning. Central to the Mishnah's system might well be a picture of the course of Israel's destiny, in the tradition of the biblical histories—Samuel, Kings, or Chronicles, for instance—and in the tradition of the prophets of ancient Israel, the several Isaiahs, Jeremiah, and the rest.
The Mishnah's principal point of insistence is the opposite. It speaks of what is permanent and enduring: the flow of time through the solar seasons, marked by lunar festivals and Sabbaths; the procedures of the cult through the regular and enduring sacrifices; the conduct of the civil society through norms of fairness to prevent unjust change; the pursuit of agricultural work in accord with the rules of holiness; the enduring, unchanging, invisible phobias of cultic uncleanness and cleannesss. The Mishnah has no division devoted to the interpretation of history. There is no pretence even at telling what had just happened. There is scarcely a line to address the issue of the meaning of the disasters of the day.
The Mishnah does not address one-time events of history. Its laws express recurrent patterns, eternal patterns as enduring as the movement of the moon and sun around the earth (as people then understood it) and as regular as the lapping of the waves on the beach. These are laws on plowing, planting, harvesting; birth, marriage, procreation, death; home, family, household; work, rest; sunrise, sunset—private lives, not the stuff of history. The laws speak of the here and now, not of state or of tradition, past or future. Since, in the time in which the ideas of the Mishnah took shape, most other Jews expressed a keen interest in history, the contrast cannot be missed. The Mishnah imagines a world of regularity and order in the aftermath of the end of ancient certainties and patterns. It designs laws after the old rules all were broken. It speaks of an eternal present—generally using the continuous present tense and describing how things are—to people beyond all touch with their own past, its life and institutions.
Since, as we know, in the aftermath of the war against Rome in 132–135, the Temple was declared permanently prohibited to Jews, and Jerusalem was closed off to them as well, the Mishnah's laws in part speak of nowhere and not now. Why not? There was no cult, no Temple, no holy city, to which at this time the description of the Mishnaic laws applied. Much of the Mishnah deals with matters to which the sages had no material access. They had no practical knowledge at the time of their work on cultic law. They themselves were not members of the priestly caste. Yet we have seen that the Mishnah contains a division on the conduct of the cult, namely, the fifth, as well as one on the conduct of matters so as to preserve the cultic purity of the sacrificial system along the lines laid out in the Book of Leviticus, the sixth division.
There is a further point of unreality. Many of the tractates of the first division, on agriculture, deal with the rations provided for the priests by the Israelite farmers out of the produce of the holy land. The interests of the division overall flow from the Levitical taboos on land use and disposition of crops; the whole is an exercise of most acute interest to the priests.
Furthermore, a fair part of the second division, on appointed times, takes up the conduct of the cult on special days, the sacrifices offered on Yom Kippur, Passover, and the like. Indeed, what the Mishnah wants to know about appointed seasons concerns the cult far more than it does the synagogue, which plays a subordinate and trivial role.
The fourth division, on civil law, for its part, presents an elaborate account of a political structure and system of Israelite self-government based on Temple, priesthood, and monarchy, in tractates Sanhedrin and Makkot, not to mention Shavuʿot and Horayot. This system speaks of king, priest, Temple, and court. Not the Jews, kings, priests, and judges but the Romans conducted the government of Israel in the Land of Israel in the time in which the second-century authorities did their work.
Well over half of the document—the first division, the second, part of the fourth, all of the fifth, and most of the sixth—speaks of cult, Temple, government, priesthood. But these things did not yet exist. They derived, moreover, from other groups in Israelite society. The Mishnah takes up a profoundly priestly and Levitical conception of sanctification as the principal statement on Israel's condition. Sages had no control of these matters. Furthermore, in the very time the document was written, the Temple lay in ruins, the city of Jerusalem was prohibited to all Israelites, and the Jewish government and administration, which had centered on the Temple and based its authority on the holy life lived there, were in ruins. So the Mishnah's sages could not report any facts they had observed on their own. Much of the Mishnah speaks of matters not current at the time it was created because the Mishnah's sages wished to make a statement on what really matters: the holiness of Israel as they defined it.
From what has been said, we should never be able to account for the persistence of the Mishnah as half of the whole "Torah" of Judaism. The bulk of the document was irrelevant to its own time, all the more so to the ages that would follow. The two Talmuds, indeed, pick and choose what they want from the Mishnah, and, in so doing, revise the system of the whole. The Talmud of the Land of Israel, for example, provides elaboration and commentary for only thirty-nine of the Mishnah's sixty-two tractates, omitting reference to the fifth and nearly the whole of the sixth division. The Babylonian Talmud, for its part, treats the fifth division but ignores nearly all of the first. What both Talmuds do in common is ignore the system and structure of the whole and divide the Mishnah into tiny bits and pieces. These were then subjected to close and thorough analysis. The upshot is that the two Talmuds took up the whole. By continuing what Yehudah ha-Nasiʾ had treated as concluded, they carried forward the unending process of revelation and canon. That is to say, the heirs of the Mishnah revered the document but also took responsibility for interpreting it. In the very process of their quite accurate and careful reading, they in fact accomplished a considerable reformation of the Mishnah itself.
The best edition is Saul Lieberman's Tosefta, 3 vols. (New York, 1955–1967), including Zeraʿim (1955), Moʿed (1962), and Nashim (1967), together with a monumental commentary by the same scholar. For the other three divisions, M. S. Zuckermandel's Toseftaʾ (1881) is available. I have made an English translation of the second through the sixth divisions in The Tosefta, Translated from the Hebrew, vols. 2–6 (New York, 1977–1981). A brief scholarly account is Moshe David Heer's "Tosefta," in Encyclopaedia Judaica, vol. 15 (Jerusalem, 1971).
The best available edition, including a commentary, is Chanoch Albeck's Shishah Sidrei Mishnah (Tel Aviv, 1952ff.). No critical edition exists. Herbert Danby has made a one-volume translation in The Mishnah (London, 1933), and I have made a complete translation and commentary on the second through the sixth divisions of the Mishnah and Tosefta in A History of the Mishnaic Law (Leiden, 1974–); included in the latter work are Appointed Times, 5 vols. (1981ff.), Women, 5 vols. (1980), Damages, 5 vols. (1983–1984), Holy Things, 6 vols. (1979–1980), and Purities, 22 vols. (1974–1977). An account of how the Mishnah has been studied in classical and modern times is given in my edition of The Modern Study of the Mishnah (Leiden, 1973), and the religious world view of the Mishnah is described and interpreted in my book Judaism: The Evidence of the Mishnah (Chicago, 1981). A brief introduction, presenting a quite different approach, is E. E. Urbach's "Mishnah," in Encyclopaedia Judaica, vol. 12 (Jerusalem, 1971).
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Hauptman, Judith. "Does the Tosefta Precede the Mishnah: Halakhal, Aggada, and Narrative Coherence." Judaism, 50 (Spring 2001): 224–241.
Houtman, Alberdina. Mishnah and Tosefta: A Synoptic Comparison of the Tractates Berakhot and Shebiit. Tübingen, 1996.
Neusner, Jacob. How the Talmud Shaped Rabbinic Discourse. Atlanta, 1991.
Neusner, Jacob. The Place of the Tosefta in the Halakhah of Formal Judaism: What Alberdina Houtman Didn't Notice. Atlanta, 1998.
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Jacob Neusner (1987)