When Dr. Jonathan Milgram of Teaneck set out to write his first book, he didn’t expect to discover an ancient rabbinic tradition at odds with settled Jewish law – especially not one about inheritance by daughters.
Dr. Milgram, 44, is associate professor of Talmud and rabbinics at the Jewish Theological Seminary of America. His dissertation at Bar Ilan University had been a detailed textual analysis of the eighth chapter of tractate Bechorot in the Babylonian Talmud. When JTS hired him for a tenure track position in 2007, it was time for him to start thinking about a new research project. After all, it is publishing — more than teaching — that ensures a professor’s professional standing. Rather than revisit his doctorate, he looked for a new topic to investigate.
That research, in a book called “From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in its Legal and Social Contexts,” was published this summer. The word “tannaitic” in its title refers to the rabbis of the time of the Mishnah, from the second and third centuries of the common era. The book analyzes the main areas of inheritance law in the Mishnah and other tannaitic works in light of earlier and contemporaneous legal cultures, from ancient Mesopotamian to Roman. It also compares the Mishnah’s prescribed rules with the actual practices of ancient Jews as recorded in Judean desert papyri that survived the centuries.
Dr. Milgram was drawn to research inheritance law, he said, because it is an anomalous topic in the Mishnah, the third-century legal compendium that forms the basis for the subsequent Talmuds.
“Most of the time when you look at the Mishnah, even if it doesn’t cite scripture, you can tell it’s based on scripture,” he said. If the topic doesn’t self-evidently derive from the Torah, then often “the sister literature of the Mishnah, midrash halacha, connects the verses” to the Mishnah’s laws.
The inheritance laws stand out because, in general, they do not follow that model. “For the majority of what’s in tannaitic literature on inheritance, there’s neither actual biblical antecedent nor linking of tannaitic innovation to biblical verses,” he said. “The rabbis usually rely on scripture or anchor their innovations in scripture. Why is this different?”
We’ll get to his answer soon.
But first, a few words about the differences between the Torah’s and the Mishnah’s laws of inheritance, which also will set the stage for discussing Dr. Milgram’s unexpected discovery of a concealed tannaitic tradition regarding equal inheritance by daughters.
There aren’t that many laws about inheritance in the Torah. There is the rule that the firstborn gets twice as big an inheritance as the other brothers. And there’s the law that mandates that, in the absence of sons, daughters marry relatives in order to keep the property within the family or tribe – a law dramatized in the biblical book of Numbers with the story of the daughters of Tzelophehad, now fatherless and always brotherless, petitioning Moses for their father’s landholdings not to be lost because they cannot inherit.
The Mishnah’s rules are more complicated. They include discussions of how sons must support their unwed sisters, and how some rules for inheritance appearing in the Torah may be circumvented by explicit gifts or bequests.
And then there’s the Mishnah passage (Baba Batra 8:4, for those who want to follow along at home) that begins: “The son and the daughter are the same regarding inheritance except….” Oddly enough, the passage concludes not with a delineation of the differences between the ways that sons and daughters inherit, but actually with the differences between how fathers and mothers bequeath. The Babylonian Talmud later proffers four forced attempts to make sense of how the beginning and the conclusion make sense together.
Dr. Milgram, however, argues that the end of the passage doesn’t follow from the beginning because originally, the first half of the passage, ruling that “the son and the daughter are the same regarding inheritance,” stood alone.
He used his training in the tools of Talmudic philology — the field of study showcased in the recent Joseph Cedar film “Footnote” — to “look for linguistic and other textual markers that enable me to see the seams that connect earlier traditions that were joined by the Mishnah’s redactors.
“The tannaitic tradition’s richness cannot be overlooked by anyone who studies the literature seriously,” he said. “The variety of opinions preserved in rabbinic disputes demonstrates the coexistence of competing traditions in tannaitic times. What academic Talmud study adds is another layer: by employing specific critical tools it uncovers more variety and, therefore, a more complex richness to be appreciated.”
In this case, the results of that analysis, he writes, is that in the time of the Mishnah there existed “a tradition promoting the division of equal inheritance for daughters, even in the presence of sons,” albeit, in the final edited Mishnah, a concealed tradition.
That tradition of equal inheritance, Dr. Milgram believes, was “camouflaged” by being joined with a teaching about the bequests of fathers and mothers. In the later Talmuds, similar traditions of equal inheritance for sons and daughters were attributed to gentiles and heretics.
Unearthing a tradition that upended earlier and contemporary traditions about inheritance by daughters was an unexpected surprise for Dr. Milgram. His discussion of this passage is marked by the use of exclamation marks otherwise absent from the book’s sober prose.
“I was really shocked,” he said of his discovery, “but at the same time, this example, and the numerous other examples in my book, demonstrate the innovative impulse of the rabbis that only academic study of the literature can uncover.”
Finding a lost tradition in an ancient Mishnah passage sounds hopelessly abstract and abstruse — except that some of these same talmudic passages are being used in the battles within Orthodox Judaism over the question of ordaining women as rabbis. Rabbi Hershel Schachter, perhaps the most prominent rosh yeshiva in the faculty of Yeshiva University’s affiliate, The Rabbi Isaac Elchanan Theological Seminary, and the chief authority on Jewish law for the Orthodox Union, has argued that the fact the Talmud attributes the notion of not discriminating against daughters in inheritance to gentiles and heretics proves that any feminist innovation should be seen as heretical and dangerous to Judaism.
Although Dr. Milgram was not willing to comment directly on Rabbi Schachter’s connection between inheritance traditions and feminist innovation – primarily because he was not aware of it – he did venture the observation that “the historical study of Jewish law demonstrates that while change does not always require precedent, precedent also does not always justify change.”
Although Dr. Milgram is a professor at The Jewish Theological Seminary, which, in addition to three non-denominational schools, houses the training ground for Conservative rabbis and cantors, he has always been connected to multiple strands within American Jewish life. After studying at JTS and at Columbia as an undergraduate, he was ordained at Yeshiva University and was assistant rabbi at Park East Synagogue in Manhattan, a major Orthodox congregation on Manhattan’s Upper East Side, before deciding he preferred teaching and writing to the rabbinate.
“I always said I preferred rich books over rich people,” he quips. His new book, published with a scholarly German press with a strong line of Jewish studies, is, at over a hundred euros, rich in price, if not in royalties.
He and his wife, Adina Levine Milgram, a board-certified behavior analyst, split their time between congregations Shaare Tefillah and Netivot Shalom, both in Teaneck. They have five children in five different Orthodox and community day schools in the area.
Dr. Milgram received his M.A in Talmud at Yeshiva University’s Bernard Revel Graduate School. In fact, Dr. Milgram credits one of his teachers at Revel, Dr. Haym Soloveitchik, for teaching him the methodologies necessary to look for the external economic and social factors which may influence rabbinic texts.
“Professor Soloveitchik’s greatest methodological contribution to scholarship, in my humble opinion, was developing the tools to locate when one can reasonably argue that external factors, such as the social and economic settings, influenced the halakhic process in medieval times,” Dr. Milgram said. “I took Soloveitchik’s methodological assumptions about medieval Jewish law and applied them, I hope successfully, to tannaitic law.”
So what about his original question? Why is the Mishnah’s inheritance law so much more complex than the Torah’s, and so disconnected from it?
After traversing the full range of ancient Near Eastern, Greek, and Roman law and carefully examining the relevant Jewish texts, Dr. Milgram came to the conclusion that while the Mishnah’s laws tended to differ from the Torah’s, they often tended to be “the same as everyone else’s.”
“Many concepts in tannaitic law,” he writes in the book’s conclusion, “are simply part and parcel of the way inheritance is envisioned in the ancient Near East and the Mediterranean region, cross-culturally, from time immemorial.” In addition, specifically Greek and Roman legal terminology was adopted and adapted by the tannaim.
But why did the tannaitic laws differ from Torah law? A possible answer, he concluded, was because the rabbis lived more like urban Romans than they did like the rural farmers of the Torah. In cities, rabbis, like their gentile neighbors, owned private property and lived in nuclear families. Those social and economic contexts may have contributed to the rabbinic construction of inheritance laws. By contrast, the Torah envisions extended families living on a family plot of land with a family leader. Those laws reflect biblical assumptions about society and its economics of landholdings.
For his next book, Dr. Milgram plans to revise and significantly expand his dissertation on Bekhorot that he never published. It will be published in Hebrew and appear in the Talmud commentary series of the Society for the Interpretation of Talmud in Israel, edited by Dr. Milgram’s former Ph.D. advisor, the Israel Prize laureate, Professor Shamma Friedman.
And after that? Will he revisit inheritance law, this time looking at its subsequent development in the Talmud?
“For the study of the Babylonian Talmud in its context, you have to know different things than for studying the Mishnah,” he said. “You have to know middle Persian, you have to know about Zoroastrianism. I don’t know. Perhaps, but no promises.”
Save the date
Who: Dr. Jonathan Milgram
What: Lecture, “How to study the Laws of the Tannaim in the 21st century.”
Where: Congregation Rinat Yisrael, 389 W. Englewood Ave., Teaneck
When: Labor Day, Monday September 5, 8:45 a.m.
Save on Amazon’s price
Limited copies of “From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in its Legal and Social Contexts” are for sale at Judaica House at a significant discount.