What is the Mishnah?
There’s a short answer, a long answer, and the New Jersey-centric answer you’ll get from reading this article.
The short answer is that the Mishnah is the collection of Jewish law produced by Rabbi Yehudah the Prince around the year 220 CE in Roman-ruled northern Israel. It lays out rules for everything from daily prayers to Shabbat observance to tithes to marriage, divorce, and property disputes. The Mishnah is the spine of the Talmud, which recounts how later rabbis explored and expanded on the Mishnah’s teachings.
Anyone looking for a long answer should tune in to the upcoming workshop, “What is the Mishnah,” that Harvard University is Zooming from 11 a.m. to 1 p.m. on seven days this month, starting with Tuesday, January 5, and concluding on Thursday, January 21. You’ll be able to learn from 22 top Jewish studies professors from around the world speaking about the Mishnah from as many angles. (The full conference schedule, with links to register for the Zoom sessions, is at bit.ly/MishnahJS.)
“The Mishnah is the foundation document of rabbinic law,” Dr. Shaye Cohen said. Dr. Cohen is a professor of Hebrew literature and philosophy at Harvard, and the convener of the conference. He also is the founding editor of new translation and commentary on the Mishnah, to be published by Oxford University Press, probably in 2022.
“Whatever Judaism you practice or don’t practice, they all ultimately come from the Mishnah,” he said. “That’s why the Mishnah is important. That’s why we’re spending a month more or less on sessions devoted to studying it. We’ve assembled a nice cohort of first tier scholars, some senior, some junior, all very competent, to look at the field to see what’s new.”
Two of the presenters are from New Jersey (as many as from Canada, and twice as many as from England).
Dr. Jonathan Milgram of Teaneck is associate professor of Talmud and rabbinics at the Jewish Theological Seminary of America. He will talk about “Mishnah and Ancient Near Eastern Law.” “A lot has been written about the intersection of Hellenistic culture and the Mishnah,” Dr. Milgram said. “There are Greek words that appear in the Mishnah and the rabbis are aware of Greek knowledge. To a lesser extent there has been material written about the fact that the Mishnah is a product of Roman Palestine, so it reflects an interaction not only with Roman culture, but also Roman law.
“My paper is about a third area of legal overlap: between ancient Near Eastern laws and mishnaic laws. It’s an area that is very ripe for new investigations and that I I explored in detail in my book, ‘From Mesoptamia to the Mishnah: Tannaitic Inheritance Laws in their Legal and Social Contexts’” he said.
“It’s clear that some of the idiom of Akkadian law makes its way substantively into mishnaic discourse,” Dr. Milgram said. At the same time, “the mechanism that would generate parallels between mishnaic laws and concepts and terms and those from Mesopotamian law in Akkadian are not so clear.”
The world rediscovered Near Eastern law in 1901, when archaeologists unearthed a 7-foot high black stone stele engraved with the Code of Hammurabi in the Akkadian language, using cuneiform script in the ruins of the ancient Persian city of Shushan. These laws date to around 1750 BCE. Later discoveries of clay tablets in archives around the Middle East show the laws were widespread; there has even been a preliminary report of a piece of similar law found in a cuneiform tablet excavated in Israel in 2010. And there have been many documents found that record ancient marriages and inheritance and reflect those laws in action.
And the similarities between the codes of Hammurabi and Rabbi Judah are unlikely to be the result of coincidence, though the documents are separated by 2,000 years.
One striking similarity was recently noted by Dr. Shamma Friedman, professor emeritus at JTS (and a speaker at the conference), Dr. Milgram said.
“Friedman demonstrates that there is a threefold meaningful interconnection between the Laws of Hammurabi, on the one hand, and the eighth chapter of Mishnah Baba Kamma, on the other,” he said. “With regard to the laws of personal injury, when calculating the ‘disgrace’ — boshet — caused to the injured party, both law collections require intention for the assailant to be liable, both law collections preserve price lists indicating the fines imposed, and in their calculus, both law collections consider the social status of the individual who caused the injury and the individual who was injured when determining the fine.”
He added, “Significantly, all three of these possible ‘interconnections’ are missing from the Bible. That propels the possibility that the rabbis are drawing from some other body of legal material.”
But how would the laws have made their way into the Mishnah?
“It’s hard to talk about things like direct influence in the way that someone might conceive such things in a contemporary sense,” Dr. Milgram said. “The rabbis didn’t read ancient Near Eastern texts. There’s no evidence they saw them or had exposure to them.
“At the same time, they were living in a place where ancient Near Eastern law was the law of the land for millennia before the advent of the rabbinic movement. So when the rabbis come on the scene, it makes sense that some of the ways they address legal problems will come out of the general context in which they are present. The rabbis were certainly not just innovators, they also preserved long-held practices and reframed them in the Mishnah,” he said.
How they may have integrated (unknowingly) from Akkadian law can help illuminate what the rabbis of the Mishnah were doing in creating their work, Dr. Milgram said.
“There is a common academic narrative about the Mishnah as a revolutionary document composed in the aftermath of the Temple’s destruction and presenting a new ‘Judaism.’ Some of the work at this important conference, I think, will problematize — in a healthy way — some of those assumptions. The Mishnah also conserves, it does not just reconstruct,” he said.
Dr. Milgram will present several possibilities for the observed legal overlap.
One possibility, which Dr. Milgram presented in his own work, is that various ancient Near Eastern traditions, by virtue of being present in one form or another in the general region of the ancient Near East as the local practice or local tradition for millennia, possibly had an impact on how the mishnaic sages produced laws.
Another thesis, Dr. Milgram said, was suggested a number of years ago by the late Dr. Yochanan Muffs, a professor of Bible at JTS, who accounted for the overlap between ancient Near Eastern and rabbinic law by tracing the trajectory of ancient Near Eastern legal terms and formulae in Akkadian to their Aramaic translations, and finally to their formulations in the rabbinic literature.
“With the Neo-Assyrian Empire, the language of the region began to shift from Akkadian to Aramaic. Already existing Akkadian terms and formulae were translated into Aramaic, and those found their way into the Mishnah. People who study Mishnah often wonder why divorce and other legal documents are formulated in Aramaic,” Dr. Milgram said. “It may be that the scribal culture preserved the Aramaic formulas that were based on the earlier Akkadian ones.”
A third possibility that Dr. Milgram raised is that legal oral traditions could have accompanied the study of biblical materials in antiquity, only to be codified later into a legal document we know as the Mishnah. This position has been argued by some historians of Jewish law and fits neatly with the narrative of the oral rabbinic law in classical Jewish sources. Jewish tradition, after all, considers the law of the Mishnah to be a law that was revealed by God to Moses on Mount Sinai as an accompaniment to the written Torah.
“Areas of law that are addressed by the Torah and then developed by the tannaim in accordance with verifiable ancient Near Eastern practices could point in the direction of oral traditions that accompanied the study of biblical verses,” Dr. Milgram said.
However, Dr. Azzan Yadin-Israel of Highland Park, a professor of Jewish studies at Rutgers, will argue in his presentation that the notion of an oral law was not uncontested by the early rabbis. “The canonic status of the Mishnah has kind of hidden other aspects of early Rabbinic Judaism that are not present in the Mishnah but only present in other sources,” he said.
The idea of the Oral Torah is spelled out most clearly in the introduction to Pirkei Avot, the tractate of the Mishnah that collects ethical teaching of the rabbis: “Moses received the Torah at Sinai and transmitted it to Joshua, Joshua to the elders, and the elders to the prophets, and the prophets to the Men of the Great Assembly.”
“This is a very common way of characterizing early Rabbinic Judaism,” Dr. Yadin-Israel said. Rabbinic Judaism as a movement can’t be defined by the use of the title “rabbi,” because “in the gospel Jesus is called rabbi.” And it can’t be defined as Jews who interpret scripture, because other clearly non-rabbinic groups — such as the Jews of the Qumran community recorded in the Dead Sea Scrolls, and the Jews of Alexandria recorded in the writings of Philo — also interpret Torah. “So the idea of an Oral Torah has become a distinguishing trait of Rabbinic Judaism in contradistinction to other groups of the time,” he said. The problem: “In some contemporary rabbinic sources, namely the legal or Tanaitic midrashic literature, there are texts that call into question the commitment to the Oral Torah.”
Dr. Yadin-Israel argues that this shows that “there may be schools within early rabbinic Judaism who were either not not committed to, or far less committed to, the idea of an Oral Torah. However, those voices have never really been heard or attended to because of the centrality of the Mishnah. “The school of Rabbi Yishmael seems to have a much less robust commitment to the Oral Torah,” he said. “There are passages that radically minimize the role of non-scriptural tradition.”
Two midrashic works are attributed to the school of Rabbi Yishmael: the Mekhilta to Exodus and the Sifrei to Numbers. Dr. Yadin-Israel explored those works in detail in his 2004 book, “Scripture as Logos: Rabbi Ishmael and the Origins of Midrash.” His 2015 book, “Scripture and Tradition: Rabbi Akiva and the Triumph of Midrash,” deals with the two midrashic works attributed to the school of Rabbi Akiva. (In 2016 Dr. Yadin-Israel applied his exegetical skills to a non-rabbinic canon in “The Grace of God and the Grace of Man: The Theologies of Bruce Springsteen.”)
“The differentiation of the various tanaaitic midrashim into different schools is based on philological analysis, the terminology used, the names of the sages that appear, the interpretive assumptions each different set of texts bears on the Torah, and so forth,” Dr. Yadin-Israel said. “The school of Rabbi Yishmael does not seem to have the mechanism of oral transmission. They don’t say ‘I received this from so-and-so.’
“In an oral traditional model of religious authority, the key issue is who is your teacher. If you received a tradition from an authorized teacher, that is considered authoritative. The Rabbi Yishmael texts don’t preserve anything about who Rabbi Yishmael’s teachers were. The Talmud later says who his teachers were, but Rabbi Yishmael texts know nothing about a teacher. There is no statement that Rabbi Yishmael received a tradition from so-and-so. This school doesn’t seem to have the mechanism for an oral tradition, it doesn’t seem to have the terminology of an oral tradition.”
These rabbis of the school of Rabbi Yishmael who appear not to believe in oral transmission are absent from the Mishnah. “They’re just not quoted there,” Dr. Yadin-Israel said. At the same time, they don’t seem to have had a collection of their own like the Mishnah.
And then there’s the clincher: an explicit discussion in Sifrei Deuteronomy that “in three places halacha — here meaning received traditions — circumvents scriptural learning.” The midrash proceeds to list the three places. “They are incredibly minor,” Dr. Yadin-Israel said. “The interpretive differences are not that great. The laws are scripturally grounded, but the halacha adds a different dimension that wasn’t there before. The force of that statement seems to argue that these are the only three places where tradition circumvents scripture, which is a very radical marginalization of the idea of an oral tradition.
“Rather than having a robust Torah shebaal peh, an oral tradition received at Sinai, you have these three passages where the scriptural teaching says this, and the halacha comes and enriches it.”
The bottom line: “This was a contested issue in the rabbinic world, rather than the standard marker of what makes someone a rabbi, which is how we had thought about,” he said.
That concludes the summary of the two New Jersey speakers; for the other 20 you’ll have to tune in to the talks themselves. Or, if you prefer to imbibe your Mishnah scholarship through the written rather than the spoken word, you can wait until the papers are published in a planned volume.