Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis 9780520945036

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the taubman professorship and lectures The Herman P. and Sophia Taubman Visiting Professorship in Jewish Studies was established at the University of California, Berkeley, in 1975 by grants from Milton I. Taubman and the Taubman Foundation; an equal sum was contributed by the families of Maurice Amado, Walter A. Haas, Daniel E. Koshland, Madeleine Haas Russell, and Benjamin H. Swig. Distinguished scholars in the fields of Jewish studies are invited to teach at Berkeley for the enrichment of students and to give open lectures for the benefit of the public at large. Publication of the lectures is made possible by a special gift of the Taubman Foundation.

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Halakhah in the Making

the taubman lectures in jewish studies Daniel Boyarin, Series Editor 1. Biblical Prose Prayer as a Window to the Popular Religion of Ancient Israel, by Moshe Greenberg 2. Hebrew Poetry of the Middle Ages and the Renaissance, by Dan Pagis 3. The Promise of the Land: The Inheritance of the Land of Canaan by the Israelites, by Moshe Weinfeld 4. Tales of the Neighborhood: Jewish Narrative Dialogues in Late Antiquity, by Galit Hasan-Rokem 5. Alef, Mem, Tau: Kabbalistic Musings on Time, Truth, and Death, by Elliot Wolfson 6. Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis, by Aharon Shemesh

Halakhah in the Making The Development of Jewish Law from Qumran to the Rabbis

Aharon Shemesh

UNIVERSITY OF CALIFORNIA PRESS Berkeley

Los Angeles

London

University of California Press, one of the most distinguished university presses in the United States, enriches lives around the world by advancing scholarship in the humanities, social sciences, and natural sciences. Its activities are supported by the UC Press Foundation and by philanthropic contributions from individuals and institutions. For more information, visit www.ucpress.edu. University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England © 2009 by The Regents of the University of California Library of Congress Cataloging-in-Publication Data Shemesh, Aharon. Halakhah in the making : the development of Jewish law from Qumran to the rabbis / Aharon Shemesh. p. cm. — (The Taubman lectures in Jewish studies) Includes bibliographical references and index. isbn 978-0-520-25910-2 (cloth : alk. paper) 1. Jewish law—History—To 1500. 2. Qumran community. 3. Dead Sea scrolls. 4. Rabbinical literature—History and criticism. 5. 5. Judaism—History—To 70 a.d. I. Title. BM520.52.S54 2009 296.1'80902—dc22 2008051125 Manufactured in the United States of America 18 17 16 15 14 13 12 11 10 09 10 9 8 7 6 5 4 3 2 1 This book is printed on Cascades Enviro 100, a 100% post consumer waste, recycled, de-inked fiber. FSC recycled certified and processed chlorine free. It is acid free, Ecologo certified, and manufactured by BioGas energy.

To my parents Rachel and David Shemesh (‫ דשנים ורעננים יהיו“ )תהילים צב טו‬,‫”עוד ינובון בשיבה‬ In old age they still produce fruits, they are full of sap and freshness (Psalms, 92:15)

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CONTENTS

Preface xi Introduction: In the Beginning 1 1. Writing Halakhah in Qumran 21 2. Divine Revelation and Human Exegesis; Or, How to Recognize a False Prophet When You See One 39 3. Scripture versus Tradition 72 4. “The Foundation of the Creation” and the “Laws Written on the Heavenly Tablets” 107

5. Halakhah from Qumran to the Mishnah: Concluding Remarks 129 Appendix of Hebrew Texts 141 Notes 151 Bibliography 187 Index of Primary Sources 203 General Index 209

PREFACE

This book is based on the Taubman Lectures in Jewish Studies I delivered at the University of California, Berkeley, in February– March 2005. I wish to thank the faculty members of the department of Near East Studies and the Jewish Studies Program for inviting me to present my thoughts and for joining me to the distinguished list of prominent scholars in all fields of Jewish studies who previously participated in this wonderful lecture series. Special thanks to my teacher, colleague, and great friend Prof. Daniel Boyarin for challenging me with this project. The invitation to deliver these lectures, which he initiated, forced me to think of the big questions, beyond the local, particular, halakhic issues in the Dead Sea Scrolls which I have discussed in many of my earlier works. This book is an attempt to better understand the nature of the legal system of the Dead Sea Scrolls, to explore the sectarian, exegetical principles and their fundamental assumptions with regard to the origin and authority of halakhah, and above all to compare the scrolls’ viewpoint on these issues with that of xi

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the Rabbis as reflected in the later Tannaitic literature in order to sketch the relationship between these two bodies of literature and the development of halakhah from the Second Temple period to the Mishnah. I wrote the first draft of this book in the summer of 2006 while staying as a fellow at the Rockefeller Foundation Study Center, Bellagio, Italy. The month residency in Villa Serbelloni was a unique experience, combining a magnificent setting and the wonderful intellectual environment created by the diversity of scholars and artists who were there with me. Most of the work, however, was done during the spring semester of 2007 when I was Harry Starr fellow at the Harvard University Center for Jewish Studies. I wish to take this opportunity to thank the center and its director, Prof. Shaye Cohen, for granting me the fellowship and for bringing together an excellent group of scholars who were all very supportive and always willing to discuss each other’s work, in seminars and private conversations. I benefit tremendously from their wisdom; many of their comments are now embedded in this final version of the book. Shalom Hartman Institute in Jerusalem was my second home for the last eighteen years. I wish to thank my fellows at the institute’s Center for Advanced Judaic Studies for a long-standing friendship that emerges from love for the learning of Torah and a deep commitment to the truth. I wish also to thank my colleagues at the department for Talmud at Bar-Ilan University, and especially my students, who are always the first to hear my raw ideas in classes and seminars. Gary Anderson, Moshe Benovits, Shaye Cohen, Devora Dimant, Lutz Doering, Yuda Galinsky, Ernest Fraenkel, Yair Firstenberg, Moshe Halbertal, Shlomo Naeh, Elisha Qimron, Adi

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Schremer, Daniel Schwartz, Yosef Tabory, Cana Werman, Yshai Rosen-Zvi, and the anonymous reader for the University of California Press read the manuscript and offered valuable comments and advice. I wish to thank them all. I also thank the Naftal Center Beth Shalom foundation of BarIlan University for their contribution towards the expenses of preparing the manuscript for publication. I dedicate this book to my beloved parents, Rachel and David Shemesh, and wish them a joyful, long, healthy life among their caring extended family members: children, grandchildren, and great-grandchildren. Aharon Shemesh Jerusalem April 2008 Nissan 5768

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Introduction In the Beginning

In a 1990 article, “The History of Halakhah and the Dead Sea Scrolls,” Jacob Sussman surveyed the early attempts made by the pioneers of the Wissenschaft des Judentums movement to study the history of halakhah, the body of Jewish law that supplements scriptural law, and to chart its development.1 The need for such research is self-evident: to bridge the gap between the Bible and the established halakhah of the Rabbis as found in rabbinic literature. Two leading scholars were in the forefront of this project: Abraham Geiger, who, as a biblical scholar, conducted his research forward in time, from the Bible to the Mishnah, and Zacharias Frankel, who proceeded in the opposite direction—from rabbinic literature backward to the Bible.2 But this research trend quickly proved disappointing and was abandoned, hampered primarily by the lack of reliable, authentic sources. Though brilliant, Geiger’s and Frankel’s suggestions were basically hypotheses, not grounded in solid evidence. In their day, only indirect source evidence was available for early halakhah. This included the Apocrypha, Jose1

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phus, Philo, the New Testament, and the ancient translations of the Bible. It was mainly for this reason that the next generation of scholars shifted its interest to a less sensitive topic. Instead of treating the history of halakhah, they now looked at the history of halakhic literature. Their discussions focused not on discovering the ancient layers of the halakhah, but on uncovering the historical layers of halakhic literature, such as the Mishnah, instead.3 For nearly a century, no new serious attempts were made to return to the original project. With the discovery of the Dead Sea Scrolls, the situation changed dramatically. For the first time, the scrolls that gradually came to light during the 1950s provided primary material from the period of the Second Temple.4 Note, however, that Dead Sea Scrolls research has its own history. In its early days, due mainly to the nature of the scrolls first published—the Pesharim and the Rule of the Community—the research emphasis was on the sect’s worldview: its theology and ideology. Recognition of the centrality of the law to the life and consciousness of the Qumran sectarians came with the publication of the Temple Scroll in 1977. Since that time, a goodly number of halakhic compositions have been published, including the Cave 4 manuscripts of the Damascus Document, the Halakhic Letter Miqsat Ma’ase ha-Torah (MMT), and others. Major scholarly effort has been directed to the study of Qumran law: its biblical origins, sectarian exegetical methods, and a comparative analysis with later rabbinic halakhah. Despite the many articles and books treating halakhah at Qumran (suffice it to mention the works of Joseph Baumgarten and Lawrence Schiffman), nevertheless, we still lack a comprehensive reassessment of these findings with respect to the original project, that is, the history and development of halakhah.

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It is exactly this challenge that I hope to meet in the present work. In the following chapters, I wish to present readers with the results of my research in the last five years concerning various aspects of the relationship between the Dead Sea Scrolls and rabbinic halakhic literature. There is, however, one major problem confronting any attempt to compare these two bodies of literature—the Dead Sea Scrolls on the one hand, and rabbinic literature on the other—and this is the two-hundred-year gap between them. Whereas the Qumran literature was composed mainly during the second and first centuries b.c.e., the rabbinic literature, although it does include some first-century material, did not reach its current form until its final editing no earlier than the third to fourth centuries c.e. SOME THEORETICAL CONSIDERATIONS

Two models can be used to describe the relationship between Qumranic and rabbinic literature. The first model can be termed “developmental.” According to this model, Qumran halakhah represents “‘old’” halakhic traditions, whereas rabbinic halakhah is the result of a new, post–70 c.e. (post-destruction) development. This was Abraham Geiger’s assumption in his work, reached almost a century before the discovery of the scrolls. Using the limited material at his disposal, Geiger theorized the development of halakhah from the early Sadducean legal system to the new, later, rabbinic halakhah. In his works published during the second half of the twentieth century, Yitznak Gilat basically followed Geiger’s developmental model. Gilat convincingly demonstrated how Rabbi Eliezer son of

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Hyrcanus represented within rabbinic circles the old halakhic tradition stemming from the days of the Temple, while his colleagues promoted new ideas that resulted in new halakhic rulings.5 Recently, Vered Noam carried this line of thinking further. Because, as is well known, Rabbi Eliezer himself was a student of the School of Shammai, she carefully studied many of the halakhic rulings of this school and found that in not a few cases, when sectarian parallels are available, the Shammaites’ opinion matches or at least is close to that of the sect, while the opinion held by their rivals—the School of Hillel—differs. That is to say that while the School of Shammai held fast to the old tradition, the School of Hillel is responsible for promoting changes in halakhah.6 This developmental model raises a question: What generated the changes, and how did the Rabbis defend them, theologically and exegetically? Regarding the first question, there is no doubt that in many cases, the failed rebellion against the Romans, which resulted in the destruction of the Temple, was a major catalyst for such changes—the new political, economic, and social reality definitely fostered the need to adjust halakhah. But this is by no means a full explanation. It may explain the relations between the views of Rabbi Eliezer and his colleagues, but not that of the Schools of Hillel and Shammai, because the latter flourished before the destruction of the Temple. Thus, more sophisticated explanations are needed for the developmental changes that took place in halakhah toward the end of the Second Temple period. Furthermore, there are two additional questions that we should ask: What were the theological and exegetical concepts that enabled such changes to take place, and what halakhic subjects were susceptible to being changed? These questions will be examined in the following chapters.

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Other scholars, among them Yigael Yadin and Lawrence Schiffman, use a different model to describe the relationship between sectarian and rabbinic halakhah. This model can be termed “reflective.” According to this model, rabbinic halakhah is an accurate reflection of the legal tradition of its forerunners: the pre–70 c.e. Pharisees. It assumes that halakhic disputes between the Dead Sea Scrolls and the Tannaitic literature reflect already-existing Second Temple period disputes, namely, that they represent the differences between Pharisean and Sadducean halakhah.7 This reflective model, based on Temple-period origins, can be further subdivided in terms of the nature of those origins. One submodel posits that the disputes between the different Second Temple groups actually reflect ancient competing traditions rooted in the biblical era. Israel Knohl, for example, promoted this option in some of his works, backing this view by identifying the traces of these disputes in the Bible itself.8 The second submodel posits that these disputes took form during the Second Temple period itself. This is in my opinion the most interesting model, because it raises some fascinating questions, such as: Which opinion represents the original stance and which that of the innovators? What promoted the changes, and how did the reformers justify their actions? And, finally, how did the other group respond to these halakhic reforms and to the challenge to its stance? Although some scholars tend to stress one of these models and prefer it over the other, I submit that the picture is significantly more complex. To my mind, these two models are not mutually exclusive. Rather, as I will try to demonstrate here, both coexist and even interact to some extent. Let us begin by briefly surveying the principal criteria for ascribing a specific legal issue to one of these models. In other

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words, the question I ask is: What serves as a reliable indicator of whether a specific Rabbinic-Qumranic dispute has ancient roots or is the result of a post-70 development? One criterion for concluding that a particular debate is long-standing, that it already existed in the Second Temple period, is explicit mention of the opposing opinions in Qumranic literature. Another is when the polemical nature of the text indicates that the sect’s opponents did not accept the halakhic ruling under discussion, even if the dissenting opinion is not explicitly cited. This is true, for example, of the majority of the laws discussed in MMT, or the Halakhic Letter, as some scholars call it.9 This composition, written in the form of a letter sent by a leader (perhaps even the founding leader) of the community to an influential figure outside the sect, discusses various halakhic subjects, mostly related to the appropriate conduct of the Temple service—including matters of purity and impurity, sacrifices, and others. In the author’s view, his opponents defile the sanctuary by their behavior. His aim is to persuade the addressee of the correctness of his stance as opposed to theirs. Because both halakhic stances are mentioned, we can then conclude with certainty that these disputes already existed in the pre–70 c.e. period. This is also almost certainly true of the legal disputes attributed by rabbinic literature to the Sadducees and the Pharisees (depending, of course, on the sources’ historical reliability). On the other hand, when the Qumranic sources do not mention other opinions (explicitly or implicitly), but just state the legal requirement, and the opposing rabbinic view is known to us only from post–70 c.e. literature, this almost certainly indicates that the different rabbinic halakhic view resulted from a development within rabbinic circles. What may support such conclusions are the findings of traces of the “old” halakhah in the Tannaitic corpus it-

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self. In such cases (such as the case of Rabbi Eliezer and the School of Shammai mentioned above), we may assume that the halakhah in the scrolls represents the accepted norm of their day, an assumption that explains why some Rabbinic sources still hold fast to this halakhic tradition. It was most probably a relatively late development that fostered the new stance, which over the course of time became the dominant view within rabbinic literature. THE LAW OF THE FOURTH-YEAR FRUITS AS A TEST CASE

It is not always an easy task to determine whether a specific halakhic case best fits one model or another. The Qumranic and rabbinic handling of the law of the fourth-year fruits best illustrates the complex relationship between these various models. My starting point is the biblical injunction, found in Leviticus 19:23–25: “When you enter the land, and plant any kind of tree for food, you shall treat its fruit as forbidden; for three years it shall be forbidden to you, and shall not be eaten. In the fourth year, all of its fruit shall be holy for giving praise (kodesh hilulim) unto the Lord. In the fifth year, you may eat of its fruit, that its yield to you may be increased.”10 This passage describes three stages: for the first three years, the fruits of the tree are forbidden; in the fourth year, the fruits “shall be holy”; and from the fifth year onward, the fruits belong to the owner for personal consumption. The plain meaning of the biblical instruction “shall be holy for giving praise unto the Lord” is that their owners are not allowed to enjoy them. Rather, the fruits belong to God: they should either be sacrificed on the altar or given to the priests.11 The rabbinic view, however, is different. According to the Mishnah and other Tannaitic sources, fourth-year fruits are governed

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by the same rules as the second tithe, that is, their owners bring them to Jerusalem and consume them there in a state of purity.12 Abraham Geiger used the developmental model to explain the gap between Scripture and Mishnah in this case.13 According to his scheme, the original meaning of the biblical injunction is, as mentioned earlier, that the fourth-year fruits belong to God (or to his servants, the priests). The earliest source indicative of a changed interpretation of this law is the Samaritan translation that reads nilulim (redemption), instead of hilulim (praise). Its halakhic consequences first appear, according to Geiger, in PseudoJonathan to Leviticus 19:24: “And in the fourth year let all its fruit be holy praise-offering before the Lord, redeemable from the priest.” This implies that, although the fruits principally belong to the priest, their owners may redeem them. The final step, according to Geiger, appears in the “new” rabbinic halakhah. The fourth-year fruits, now considered the landowners’ property, must be consumed only in Jerusalem, a view based, of course, on the new reading nilulim (redemption), taken to mean that, like the second tithe, fourth-year fruits may be redeemed by the farmer in his hometown and their monetary value brought to and spent in Jerusalem. Several scholars have pointed out the inadequacy of Geiger’s theory.14 They note that the textual variant hilulim/nilulim does not necessarily reflect a halakhic dispute regarding the ownership of fourth-year fruits; rather, these variants were actually understood as meaning both “praise” and “redemption.” We find, on the one hand, that some ancient translations, including that of the Septuagint, translate the root mLL, which appears in Deuteronomy 20:6 and in Jeremiah 3:5, as “praise,” while on the other, some Talmudic rabbis and other early translators who read hilu-

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lim in our verse still explain it as “redemption.”15 The conclusion is that these textual variants, which originally stemmed from the phonetic or graphic similarity between these two words—hilulim and nilulim—did not decisively influence the halakhic exegesis of the verse. To recall, one submodel of the reflective or Temple-period origins model posits underlying ancient competing biblical traditions for Qumranic-Rabbinic disputes. Recently, Menachem Kister and Itamar Kislev have demonstrated that this is the case for the dispute concerning the destination of the fourth-year fruits.16 Whereas Leviticus 19 assigns the fourth-year fruits to the Lord (as evidenced not only by the words “kodesh hilulim,” but also by the next verse: “In the fifth year, you may eat its fruit,” from which it can be inferred that the owner is not entitled to enjoy it before the fifth year), Deuteronomy 20:6 reflects a different tradition. The latter passage lists several categories of exemptions from going to war, all based on the fact that the person in question has started but not yet enjoyed the fruits of an important project: someone who is about to occupy a new house, or who has just been engaged to a woman, but hasn’t married her yet, and also someone “who planted a vineyard and has not enjoyed its fruits (ve-lo nilelo).” Clearly, according to Deuteronomy, the farmer himself is the person entitled to enjoy the first fruits. In Kislev’s view, the law in Deuteronomy is the result of the Deuteronomist’s attempt to institutionalize a popular celebration, probably borrowed by the Hebrews from their pagan Canaanite neighbors. Some extrabiblical sources describe this type of yearly festival, depicting the farmers rejoicing at the new harvest by drinking wine and eating its fruits in their temples. Such a festival is alluded to in Judges 9:27: “And they went out into the field, and

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gathered the grapes from their vineyards and trod them, and made a festival (ve-yªa’su hilulim), and went into temple of their god, and ate and drank and reviled Abimelech.” A similar conception underlies Isaiah’s prophecy (62:8–9): “The Lord has sworn by his right hand, by his mighty arm: Nevermore will I give your new grain to your enemies for food, Nor shall foreigners drink the new wine for which you have labored. But those who harvest it shall eat it and give praise (ve-hilelu) to the Lord, and those who gather it shall drink it in my holy courts.” The background to the different rulings concerning the fourthyear fruits is thus rooted in competing Pentateuchal sources. Whereas Deuteronomy typically adopts popular customs, Leviticus, of the priestly school, demands that the fourth-year fruits be given to the Lord through his servants the priests. We now come to the Qumranic treatment of this law. In Qumran literature, the ruling that fourth-year fruits belong to the priests is cited in at least six different places. In the Temple Scroll, column 60, the author lists all the gifts to be given to the priests, among them “all their holy offerings that they consecrate to me, along with all their holy praise offerings (kodesh hilulehemah).” The same law appears at least twice in the Damascus Document,17 as well as in 4Q251 (Halakhic Scroll),18 and MMT (B: 62–63).19 The multiple occurrences of this law in Qumran literature and especially its appearance in MMT strongly suggest that this halakhic issue was a disputed point between the sect and their opponents, the Pharisees. Seen thus, the difference between rabbinic sources, on the one hand, and Qumran literature, on the other, concerning who is entitled to enjoy the fourth-year fruits is perhaps better explained according to the first submodel of the

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Temple-period origins model described earlier: that is, that the law of the fourth-year fruits did not undergo a long process of development (as Geiger thought), but rather the dispute existed during the Temple period, and its origins can be traced back to the Bible itself. The priestly sect adopted the Levitical priestly tradition and assigned the fruits to the priests, whereas the Pharisees typically embraced Deuteronomic tradition and ruled that the fourth-year fruits belong to their owners. Surprisingly, however, this is not yet the complete picture. As I will demonstrate here, there is still further complexity regarding the history of the different views concerning the laws of the fourth-year fruits. This halakhic issue appears twice in the Book of Jubilees, in the context of Jubilees’ retelling of Noah’s deeds after the flood. Genesis 9:20–21 relates, “Noah was the first (va-yanel) tiller of the soil. He planted a vineyard. And he drank of the wine and became drunk and lay uncovered in his tent.” The Hebrew for the first word of the verse, va-yanel, which means “to start” or “to begin,” is correctly translated in this context as “was the first.” It is, however, the phonetic similarity between va-yanel and hilulim/nilulim that generates the basis for Jubilees’ addition to the biblical story: During the seventh week, in its first year, in this jubilee Noah planted a vine. . . . It produced fruit in the fourth year. He guarded its fruit and picked it that year during the seventh month. He made wine from it, put it in a container, and kept it until the fifth year—until the first day at the beginning of the first month. He joyfully celebrated the day of this festival. . . . He was very happy, and he and his sons happily drank some of this wine. (7:1–6)20

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Note that in this passage, Noah himself enjoys the fruits. Toward the end of the same chapter, Jubilees provides Noah’s testament to his sons, which reflects a different disposition of the fruits: You will now go and build yourselves cities, and in them you will plant every (kind of ) plant that is on the earth as well as every (kind of ) fruit tree. For three years its fruit will remain unpicked by anyone for the purpose of eating it; but in the fourth year its fruit will be sanctified. It will be offered as first fruits that are acceptable before the most high Lord, the creator of heaven, the earth, and everything, so that they may offer in abundance the first of the wine and oil as first fruits on the altar of the Lord who accepts (it). What is left over those who serve in the Lord’s house are to eat before the altar which receives (it). During the fifth year arrange relief for it so that you may release it in the right and proper way. (7:35–37)

There are substantial differences between Jubilees’ two references to the laws of the fourth-year fruits. As noted above, according to the first account, Noah himself drank the wine made of the fourth-year grapes, whereas according to the second, the first fruits should be offered on the altar, and the remainder is the priest’s and not the owner’s portion. Some scholars solve this apparent contradiction either by claiming that Noah and his sons had the status of priests and were therefore allowed to enjoy the fruits themselves or that, according to Jubilees, the laity may enjoy the fruits after the priests receive their portion.21 Recently, however, Menahem Kister and Michael Segal22 have convincingly argued that Jubilees is not a unified work, but rather a composite one; it consists of at least two layers: the narrative portion, and the laws added by the editor. Regarding our passages, Kister’s con-

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clusion is therefore that there is no point in attempting to resolve this contradiction: “Different traditions were included in the Book of Jubilees, and it stands to reason that not all of them were sectarian.”23 In light of the next passage to be discussed, I would like to suggest a somewhat different assessment of the relationship between the contradictory sources in Jubilees: not that Jubilees contains nonsectarian stances, but rather that the borders between “sectarian” and “nonsectarian” halakhah are not, at least in this case, as clear-cut as scholars tend to think. My argument is based on some surprising evidence for the so-called sectarian halakhah within rabbinic literature. Joseph Baumgarten has already pointed to the following midrash from Sifre Numbers as indicating that the Rabbis were aware of the Sadducean-sectarian position that fourthyear fruits belong to the priests:24 “A man’s holy offerings belong to him, (Numbers 5:10)” Why is this said? Because (Scripture) says, “In the fourth year all its fruits shall be a holy praise-offering to the Lord (Leviticus 19:24)”; (this means) holy and belonging to its owners. Or (you might say) holy and belonging to the priests? The teaching therefore comes to say, “A man’s holy offerings belong to him.” Scripture refers here to the fourth-year planting, which belongs to the owners. These are the words of R. Meir. (Sifre Numbers 6; for Hebrew, see Appendix, no. 1)

The midrash begins by introducing two options for reading the words “holy praise-offering to the Lord”: either holy and belonging to the priests, or holy and belonging to the owners. Rabbi Meir decided in favor of the option that the fruits belong to their owner, backing his view with the proof text, “A man’s holy offerings belong to him.” The very fact that the midrash suggests

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the option that the fruits are “holy and belonging to the priests” testifies, Baumgarten argues, to the Rabbis’ awareness of this opinion and the need to reject it. It is therefore surprising to realize that this “rejected” opinion is actually mentioned as a legitimate halakhic stance in the next sentence of this very midrash. Immediately following Rabbi Meir’s homily, the midrash quotes Rabbi Yishmael’s opinion, who, according to the printed versions of the midrash, holds the same halakhic opinion as Rabbi Meir, although he offers a different scriptural exegesis. But according to MS. Vatican 32, the opening of Rabbi Yishmael’s statement suggests that he holds the opposite view: “R. Yishmael says: ‘Holy and belonging to the priest.’ You say Holy and belonging to the priests, or you might say holy and belonging to the owners, etc.”25 Though the statement “Holy and belonging to the priest” does not fit the exegetical proof that follows, there is good reason to believe that these are Rabbi Yishmael’s original words. As Menahem Kahana has pointed out, in the Sifre and other Tannaitic compositions, the structure “These are the words of Rabbi X. Rabbi Y says” always points to a dispute, and not to a second tradition regarding the same opinion. If the latter were the case, the formula would read, “Rabbi Meir says [such and such] and Rabbi Yishmael says [such and such].”26 We thus have both opinions recorded in the midrash, and not only the one that assigns the fruits of the fourth year to the owners.27 What emerges from this lengthy discussion of fourth-year fruits is that whereas the dominant view found in Qumranic literature is that fourth-year fruits belong to the priests, and the dominant view found in rabbinic literature is that they belong to the owners, yet in the margins of both literatures we find traces of

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the opposite stand, as well.28 This finding calls for extra caution in our attempt to assign different halakhic rulings to the different groups of the Second Temple period. Even in the current case, which is treated in MMT, we cannot be certain that the distribution of the various opinions necessarily correlates with the Sadducees and the Pharisees. The most we can say is that this issue was governed by two competing traditions as early as the late biblical era, that it was a much-debated issue during the Second Temple period, and that it had not been completely resolved even in the rabbinic age. The validity of the various models suggested above is not restricted to the content of the halakhah alone, but applies to the structure and principles of halakhic institutions. Thus, for example, in chapter 2, I will discuss the opposing views of the Rabbis on the one hand and the sectarians on the other with regard to the origin and authority of the law. Nevertheless I will show that Rabbi Eliezer expresses views on this matter similar to those of the Qumranites. Accordingly we may conclude, as I argue above, that this issue fits into the developmental model and that the rabbinic view is a relatively new development and was not necessarily held by the Pharisees, their predecessors. A FEW METHODOLOGICAL ASSUMPTIONS

Before going any further, some methodological notes are in order. Throughout this work, I am using the terms “sectarian,” “priestly,” and “Sadducean” halakhah as if interchangeable. Is it justified to do so? This is a much-debated and disputed issue among scholars.

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The prevailing view concerning the identification of the Dead Sea Scrolls, which are the prime source for our discussion of the halakhah of the Second Temple period, is based on the following triangle linking the scrolls found in the caves near Khirbet Qumran, the inhabitants of the site, and the Essene group as portrayed by three first-century writers: Flavius Josephus, Philo of Alexandria, and Pliny the Elder.29 According to this hypothesis, the scrolls were composed by Essenes who lived at Qumran and who hid them in the caves.30 Though the correctness of each of the three links is questionable, still, the “Essene hypothesis” remains the most useful working hypothesis, because it best explains most of the currently available data. I therefore rely on this hypothesis and refer to the laws and religious customs found in the Scrolls as representing the halakhah practiced by the Essenes. The Essenes, Josephus tells us, were one of the three philosophies (schools, parties) of the Jews during the Second Temple period. The other two philosophies were those of the Pharisees and the Sadducees.31 Our knowledge of Sadducean halakhic practice is very limited. Most of our information comes from rabbinic sources that record old traditions about halakhic disputes between the Pharisees and the Sadducees. An important development took place with the publication of the Qumran scroll entitled by its editors Miqsat Ma’ase Ha-Torah and by others the “Halakhic Letter.”32 In his 1990 article, “The History of Halakhah and the Dead Sea Scrolls—Preliminary Observation on Miqsat Ma’ase Ha-Torah (4QMMT),” Jacob Sussman noted that some of the topics discussed in the scroll correspond to Sadducee-Pharisee disputes recorded in rabbinic literature and that in all these cases, the author’s halakhic stance coincides with the Sadducean view, whereas his opponents’ view is identical to that of the Pharisees.33

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In what has already become a classic example, recorded in Tosefta Yadayim, the Pharisees and the Sadducees disputed whether a stream of liquid poured from one vessel to another could transfer impurity upward from the lower vessel, thereby contaminating the pure upper vessel. The same dispute appears in MMT, using the same terminology and phraseology, where the author’s opinion matches that of the Sadducees and his opponents’ view that of the Pharisees. This finding led Sussman to conclude that, though the Sadducees and the Essenes formed two different sociological entities, they shared the same legal system, fundamentally different from the Pharisaic one.34 Although some scholars take issue with Sussman’s conclusion, arguing that the similarity between some Sadducee regulations and the laws found in the scrolls does not necessarily point to what they term a “generic” connection between the two,35 nevertheless, as with the Essene hypothesis, here, too, I suggest embracing Sussman’s proposal, at least as a working hypothesis. My experience is that assuming a common legal background for the two has been shown to be a productive methodological tool. That is not to say that each and every one of the laws in the Dead Sea Scrolls was practiced by the Sadducees. The calendar furnishes one example. The community of the Dead Sea Scrolls used a calendar of a 364-day year. This is a schematic year whose essential characteristic is the ideal numerical relations it incorporates. The year is divided into four quarters of ninety-one days. These quarters, in turn, are divided into months, with thirty days in each of the first two months and thirty-one days in the last month of every quarter. The year is neatly divided into weeks: fifty-two weeks per year and thirteen per quarter. The number 364 thus incorporates the typological numbers 4, 7, and 13. The

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year always begins on the fourth day of the week, so festivals always occur on the same day, and thus, no festival ever occurs on the Sabbath. This was very important for the Qumranites, because according to their reading of Leviticus 23:38, it is forbidden to sacrifice on the Sabbath anything except the Sabbath’s sacrifices.36 Not a few passages in the scrolls with a strong polemical flavor suggest that this calendar wasn’t used in the Temple when it was run by the Sadducees.37 Such also is the testimony of Pesher Habakkuk. Column 11:4–8 states, “Its interpretation concerns the Wicked Priest who pursued the Teacher of Righteousness to consume him with the ferocity of his anger in the place of his banishment, in festival time, during the rest of the Day of Atonement. He paraded in front of them, to consume them and make them fall on the day of fasting, the Sabbath of their rest.” It is thus clear that the date of Day of Atonement in the calendar of the Sadducee Wicked Priest wasn’t the same as that of the Teacher of Righteousness, the sect’s leader. The same holds for the sectarian rules regulating the community’s internal life. The Sadducees didn’t practice any procedures for accepting new members, nor did they conduct a collective communal economic system. In spite of these differences between the Qumran halakhah and that of the Sadducee priests of Jerusalem, I am inclined to disagree with some of my colleagues who differentiate between various compositions within the Dead Sesa Scrolls’ corpus itself. The Book of Jubilees, although its composition probably preceded the founding of the Qumran sect,38 and the Temple Scroll, which some scholars submit is not Qumranic, but was composed in Sadducee circles,39 present the same basic legal concepts and practices as the Damascus Documents, MMT, or any other halakhic scroll.

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Even if one can identify minor differences between them, I view them as literary variants, rather than as exemplars of separate legal traditions.40 To strengthen this claim and prove it, we need first to provide a survey of the scrolls that contain legal material and their content, and this is what I intend to do in the next chapter. In the second and third chapters, I discuss and analyze the different approaches of the two bodies of literature, the scrolls on the one hand and the rabbinic literature on the other, regarding two fundamental issues, both related to the issue of authority. Chapter 2 deals with the authority to undertake an exegesis of the law and the mechanism for making legal decisions. Chapter 3 deals with the issue of the authority of the holy text versus traditional religious norms. In chapter 4, I follow Daniel Schwartz in asking what “priestly halakhah” might be. Defining the basic characteristics of the halakhah in the scrolls and related literature makes it easier to sketch some of the processes of change that took place and the changes themselves that occurred between the halakhah of the Second Temple period and those of the post-70 Tannaitic era. In the fifth and concluding chapter, I assess the findings of the previous chapters and suggest a new explanation for the disappearance of the sects after the destruction of the Temple and for the hegemony of the rabbinic movement thereafter.

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Writing Halakhah in Qumran

The library of Qumran contains a wide range of different compositions. Among them, not a few concentrate on legal issues. These scrolls are the prime source for our knowledge of the legal system of the Qumran community, though not the exclusive source. In some of the discussions to follow, we will employ information about legal subjects extracted from nonlegal sources, such as the liturgy or wisdom literature. In what follows here, I will survey and describe two main aspects of the halakhic compositions found in the caves: their literary genre and their content and intent. This is not always an easy task, because most of the scrolls have reached us in very fragmentary condition, and often it is difficult to determine the original size of any given composition or the right order of its remaining fragments. THE LITERARY GENRE OF THE HALAKHIC SCROLLS

Two main literary genres are to be found in the scrolls dealing with legal issues. They are best represented by Temple Scroll, on the one 21

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hand, and by the legal part of the Damascus Document, on the other. Instead of defining each genre theoretically, I will describe the writing style of these two compositions empirically. As we will see, other compositions exhibit several different combinations of these two basic genres. THE TEMPLE SCROLL AND THE REWRITTEN BIBLE

Because the Temple Scroll is primarily a halakhic work, a description of its style in phrasing the halakhah is equivalent to describing its literary genre. Briefly put, its language is biblical in nature, and this text may be assigned to the broad category of the rewritten Bible.1 Even the pericopes containing innovative content are worded in biblical style. Witness the Temple Scroll’s presentation of the Deuteronomic law permitting those living at a distance from the Temple to slaughter sheep and cattle for consumption (Deuteronomy 12), to which it introduces two changes: one halakhic and the other linguistic: And you shall eat in your towns, the clean and the unclean among you alike (may eat), as though it were a gazelle or a hart. Only be sure that you do not eat the blood; you shall pour it out upon the earth like water, and cover it with dust; for the blood is the life, and you shall not eat the life with the flesh; that all may go well with you and with your children after you for ever. And you shall do what is right and good in my sight, for I am the Lord your God. (53:4–8) [For Hebrew, see Appendix, no. 1]

Halakhically, the main difference between the Pentateuchal pericope and the Temple Scroll lies in the latter’s addition of the

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obligation to cover the blood with dust, taken from Leviticus 17:13, where it relates to a captured bird or wild animal. The Deuteronomic verse, on the other hand, speaks of consuming cattle. In the rabbinic tradition, the requirement to cover the blood of a slaughtered animal applies only to wild animals or to birds, whereas the Temple Scroll’s incorporation of Leviticus’s “cover it with dust” in the Deuteronomic halakhah extends this obligation to cattle, as well. This type of exegesis, which applies details regarding one matter to a second, similar one, typifies the priestly halakhah’s solution of contradictions between different biblical commandments.2 What is noteworthy is that the biblical source is indistinguishable from the exegetical innovation, which is seamlessly incorporated into the biblical text.3 The exegesis is implicit, never explicit, as in formal commentaries such as the Pesharim.4 The second change is grammatical. Another prominent feature of the scroll is its use of direct divine speech, often shifting from the biblical third person to the divine first person, as in the conclusion of our passage: “And you shall do what is right and good in my sight, for I am the Lord your God.” This contrasts with the biblical “for you will be doing what is right in the eyes of the Lord.” The intent of this characteristic shift is to convey the statements in question as the unmediated words of God: not Moses speaking in God’s name, as in Deuteronomy, but as a direct, divine command issued at Sinai.5 In short, the Temple Scroll does not refer to the biblical text. Rather, it presents itself as the Torah. This is true for all compositions written in this style. Even if the speaker of the text is not identified explicitly as God (as in the case of the Temple Scroll), still, all texts written in

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this genre present themselves as authoritative and not as seeking authority elsewhere.

THE HALAKHIC WRITING OF THE DAMASCUS DOCUMENT

The Damascus Document’s literary genre differs fundamentally from that of Temple Scroll and the genre of the rewritten Bible. The Damascus Document uses topical rubrics to create large units, each containing rulings on the same subject. Each unit opens with a heading that appears in three variations: “ªal . . .,” as in 16:13, “Concerning the regulation for free-will offerings”; a citation from a related biblical verse marked by “va-asher amar,” as in 16:6, “And as for what he said (Deuteronomy 23:24), ‘What issues from your mouth, keep it and carry it out’”; and some entries with a heading combining the two, as in the following example (CD 9:8): “Concerning the oath. As for what he said (1 Samuel 25:26): ‘You shall not do justice with your (own) hand.’” In some cases, the Damascus Document uses the formula, “This is the rule,” mainly for legal units dealing with communal regulations. The laws themselves are mainly worded apodictically, in short and clear-cut phrases, and may be worded either as positive or negative commandments. Here is one example to illustrate the Damascus Document’s halakhic genre. At 16: 6–9, it reads as follows: “And as for what he said (Deuteronomy 23:24), ‘What issues from your mouth, keep it and carry it out’: Every binding oath by which anyone has pledged to fulfill the letter of the law, he should not annul, even at the price of death. (But) anything by which he might pledge to turn away fr[om the la]w, he should not fulfill, not even when the price is death” (for Hebrew, see Appendix, no. 2).

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The unit follows the citation from Deuteronomy 23:24 with two injunctions, the first positive and the second negative. Similar phrasing is to be found as well in the portions of the Damascus Document that deal with communal legislation. Thus, 13:12 decrees: “No one of the members of the camp should have authority to introduce anyone into the congregation against the de[cision] of the Inspector of the camp.” And the next injunction declares, “And none of those who have entered the covenant of God should either take anything from or give (anything) to the sons of the pit, except for ‘from hand to hand.’” The Damascus Document’s citations of Scripture are of great importance, because they disclose its author’s self-perception, which distinguishes it sharply from the Temple Scroll. As opposed to the Temple Scroll, which presents itself as an authoritative text and the source of the law, the Damascus Document refers to the Torah as the binding, authorized text and sees itself as a commentator, but not as a legislator. We will return later in this chapter to discuss in detail the Qumranites’ understanding of the exegetical process. In the meantime, there are two points that should be stressed. First, even in those instances where the halakhic unit opens with a citation, it does not necessarily follow that the halakhot in question were derived from the verse itself. Rather, the citation may function as a topical heading. Second, although these texts clearly represent sectarian religious demands and practices, they provide no clues as to the exegetical process whereby the halakhot were derived. Even if scholars can provisionally reconstruct the exegetical process, nonetheless as presented, the intent of the halakhah as stated is to establish its existence, rather than to reveal to the reader how it was created.

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The above-quoted passage is a good example to illustrate this point. As the rubric testifies, the halakhot under discussion are linked to the biblical injunction found in Deuteronomy 23:24. We can even conjecture that Damascus Document’s double halakhah is grounded in the duality of the verse, “you are to keep, and you are to carry out”: “keep”—avoid doing what is prohibited; “carry out”—implement what should be done. Nonetheless, we must stress that this is our reconstruction: No explicit statement as such appears in the halakhah itself. Furthermore, and this is the crux of the matter, the legislator nowhere indicates how he derived the severe and absolute nature of these obligations, to be adhered to even at the “price of death.”6 To sum up: the Temple Scroll and the Damascus Document represent the two basic genres of writing halakhah in the scrolls. The Temple Scroll’s basic literary style is an imitation of the Pentateuch. As a natural result, its basic arrangement also closely depends on the Torah. Each unit in the scroll is based on the biblical pericope that it aims to interpret and rewrite. At the same time, somewhat paradoxically, the Temple Scroll dissociates itself sharply from the Bible by presenting itself as the authoritative text and as the words of God, not dependent on any early “Holy Scripture.” In contrast, the Damascus Document’s style has nothing in common with the Pentateuch. The rules are arranged topically and phrased apodictically in short sentences. On the other hand, by quoting the relevant verses, the Damascus Document openly relies on the authority of the Torah. The Damascus Document presents itself not as the work of a legislator, but as the work of an authorized messenger conveying the correct meaning of the Torah’s will and intention.

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4Q251: BETWEEN THE TEMPLE SCROLL AND THE DAMASCUS DOCUMENT

As I mentioned at the opening of this chapter, other compositions from Qumran exhibit various combinations of the two genres described above. One interesting example of this kind of scroll is 4Q251. Only eighteen fragments of this scroll have survived, and not one of them matches another physically. Designated “Halakhah” by its editors,7 what makes this scroll unique is its use of a mixed variety of styles. Several of its fragments present the halakhot apodictically, like the Damascus Document;8 others utilize the style of rewritten Bible,9 like the Temple Scroll, Jubilees, and the compositions termed the “Reworked Pentateuch.”10 This has led me to the conclusion that 4Q251 is a collection of passages from already existing compositions. A question arises as a result: What was the rationale behind this specific collection? And can we determine the original order of the surviving fragments? The key for solving this problem, I believe, is to be found in Fragment 11. This fragment relates to two matters: the prohibition against consuming a newborn animal that is less than seven days old and the prohibition against eating the flesh of an animal that hasn’t been slaughtered, but either has “died a natural death” or has been “torn by a beast.” The origin of this conjunction is undoubtedly Exodus 22:28–30, where these same prohibitions appear, and in the same order. You shall not put off the skimming of the first yield of your vats. You shall give Me the first-born among your sons. You shall do the same with your cattle and your flocks: seven days it shall remain with its mother; on the eighth day you shall give

Writing Halakhah in Qumran / 28 it to Me. You shall be holy people to Me: you must not eat flesh torn by beasts in the field; you shall cast it to the dogs.

Consequently, it is clear that the editors were right in placing Fragments 9 and 10 in this order—preceding Fragment 11—because their subject is the first fruits and first-born gifts mentioned in verse 28, just before the prohibition not to eat the young newborn animal.11 The fact that the laws in these fragments are phrased in the Damascus Document’s abstract style and not in the genre of the rewritten Bible makes the observation about their biblical arrangement even more significant. We may now conclude that although the abstract style is usually used for the topical arrangement of laws, disassociated from its biblical origins, nonetheless, sometimes even with this genre, the organizational pattern follows the biblical order.12 Careful, systematic analysis of all the fragments of 4Q251 reveal that underlying this “Halakhic” scroll is the sequence of laws of the biblical Book of Covenant (Exodus 21:1–23:19), which the scroll interprets, either in the form of a rewritten Pentateuch or in apodictic language.13 Because the fragments cannot be matched physically, it is impossible to determine whether the scroll originally covered the entire sequence of the covenantal laws or whether, like some other scrolls, it treated only some of the subjects found therein, skipping over other biblical pericopes.14 We also lack the means to determine whether the halakhic sections worded in the style of the Damascus Document were created by the author of the scroll in their present context or whether they perhaps were cited by the redactor from other works at his disposal. In any event, 4Q251 is, at the very least, a careful, edited composition resulting in sequential exegesis for an entire biblical pericope.

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THE BIBLICAL BACKGROUND OF THE PENAL CODE

The phenomenon of a scroll with its details arranged in biblical order is not restricted to 4Q251. Elsewhere, I have shown that the compilation of a group of injunctions into a single textual unit in the Damascus Document becomes clear if we assume that they, too, are patterned after the order of the verses in a passage appearing at the end of Leviticus.15 It was even more surprising to discover that the sectarian penal code, which appears in both the Rule of the Community and the Damascus Document, is also built upon biblical passages and arranged accordingly. The penal code is a list of some thirty sins and the punishments to be meted upon anyone who commits them. The punishments are unique to the Qumranites: most offenses are punished by temporary banishment for varying periods (probably dependent on the gravity of the offense), known as havdalah, that is, separation or exclusion.16 A small proportion of the most serious offenses are punished by expulsion from the sect. This accords with the communal nature of the sins listed in the code. Some of them are concerned with establishing the hierarchical order of the community. Thus, for example, a member who “speaks with brusqueness defying the authority of his fellow who is enrolled ahead of him, he has taken the law into his own hands; he will be punished for a year” (1QS 6:26–27). Yet another section lists a few sins dealing with inappropriate behavior during a session of the “Many.” This includes speaking without permission, falling asleep, and leaving during the session—all punished with ten days’ exclusion. It is no surprise, therefore, that the penal code is frequently portrayed in scholarly works as a classic example of sectarian legislation.17 Note, however, that while there is no doubt that the penal

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code was created in order to serve the community’s needs, some of the sins clearly have biblical origins. Thus, for example, the obligation to reprove one’s friend for his misdoings or the prohibitions against bearing a grudge or taking revenge are the sectarian implementation of the laws in Leviticus 19:17–18. On the other hand, most of details included in the list are indeed new innovations of the “Yahnad” legislators. This strengthens my general claim (which I’ll explore in detail below in chapter 2) that the sectarians themselves didn’t distinguish between biblical and nonbiblical ordinances. In their own minds, every piece of the law is of divine origin and has the same status. Any attempt to employ the later rabbinic terminology that distinguishes between “de-Orayta” (biblical) and “de-rabbanan” (rabbinic) with regard to sectarian writings is forced and thus wrong. Having said all this, I nonetheless argue that a thorough study of the penal code reveals that this list of offenses is grounded in three biblical pericopes, all related to the sanctity of the Israelites.18 The first is Leviticus 19:11–18. Baruch Schwartz has shown that these verses constitute an independent unit within chapter 19: the interpersonal commandments.19 Like the other pericopes in this chapter, it comes under the general rubric of “Speak to the entire community of the Children of Israel (ªadat Bne Ysrael), and say to them: Holy are you to be, for holy am I, YHWH your God!” (19:1). This verse contains the key to the choice of the specific offenses found in the penal code. It is the source for the phrase “ªadat hakodesh” (congregation of holiness/ holy community), always used, along with its variants, in the Rule of the Community to refer to the Qumran community.20 The conception underlying the penal code is therefore that the harm done to the sanctity of the community when

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a member infringes one of its provisions requires his exclusion, either for a set period or permanently. Deuteronomy 23:11–15 is another Pentateuchal pericope whose injunctions are grounded in the requirement to preserve holiness. The Torah commands that someone who has had a seminal emission must leave the camp and also that excretion should take place outside the camp, based on the following rationale: “For YHWH your God walks about amid your camp, to rescue you, to give your enemies before you; so the camp is to be holy, so that He does not see among you anything of ‘nakedness’ and turn away from you” (v. 15). Josephus’s description of the care taken by the Essenes not to expose their skin to the sun while relieving themselves indicates that they interpreted this injunction literally, as a prohibition against exposing their nakedness.21 Undoubtedly, the phrase “so that He does not see among you anything of ‘nakedness’” served the author of the penal code as the source for the following three offenses: 1. And whoever walks about naked in front of his fellow, without needing to, shall be punished for three months. 2. And the person who spits in the course of a meeting of the Many shall be punished thirty days.22 3. And whoever takes out his hand from under his clothes, or if these are rags which allow his nakedness to be seen, he will be punished thirty days. (1QS 7:12–14; for Hebrew, see Appendix, no. 3) The final two concrete provisions in the list in the Rule of the Community treat “grumblers”: “the man who grumbles (yilon) against the authority of the community” and “if it is against his

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fellow that he grumbles (yilon).” The biblical background to these provisions is the stories of the complaints (telunot) of the Israelites in the desert and more specifically, in my opinion, the pericope of Korah and his band (Numbers 16–17). In the biblical account, events unfold rapidly, and the situation deteriorates until its catastrophic outcome ensues. In response to the rebels’ questioning of his and Aaron’s leadership, Moses suggests a test to determine who were the chosen, holy people: Korah and his followers bring an offering of incense on their fire pans, an offering revealed to be an “alien fire,” as a result of which “fire went out from before the presence of GOD and consumed the fifty and two hundred men, those who had brought near the incense” (v. 35). As in other instances of the “desecration of God’s name,” the divine response harms not only the sinner himself, but also his family and immediate community: divine fury takes the form of a plague that kills 14,700 people before Aaron succeeds in bringing it to a halt (17:11–16).23 Grumbling therefore poses a danger not only to the status of the communal leaders (in and of itself a good reason to outlaw the phenomenon), but also to the entire community, both physically and spiritually. The theological basis for the addition of the offense of grumbling to the penal code, like the other provisions, is that it harms the sanctity of the community. To sum up: The penal code was a sectarian innovation intended to serve the Qumran community’s special needs and to protect its unique social structure.24 At the same time, this list of prohibited behaviors is the sectarian realization of the divine word and of the divine command, “Holy are you to be.” The seriousness with which the Rule of the Community and the Damascus Document relate to the penal code is the outcome of the sect’s self-perception as a “holy community,” the theological raison

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d’être for its existence. In other words, the list of offenses in the penal code is the sectarian manifesto for its status as a “holy community.” The significance of the penal code for our current interest—the writing of halakhah in Qumran—is the biblical background of its details. I have suggested here that the list of offenses was grounded in three biblical pericopes, which also dictate the arrangement of some of the details in the list and serve as the skeleton for the order of its composition.

QUMRAN HALAKHIC WRITINGS AND RABBINIC LITERATURE

Very much like Qumran literature, rabbinic halakhic writings also form two very distinct genres: midrash and mishnah. Comparison between these two rabbinic literary genres and the above-surveyed Qumranic compositions reveals some interesting affinities and differences. Like the Temple Scroll and other “rewritten Bible” compositions from Qumran, midrash follows the sequence of Scripture and relates each verse one after the other. Mishnah, on the other hand, is arranged topically, like many of the sections in the Damascus Document and the related compositions. This is a common observation, and it is presented in almost every introductory book on the scrolls.25 More interesting is the opposite direction commonality: it is the mishnah that presents itself like Temple Scroll as the authoritative text independent of any previous holy scripture, while the midrash by quoting and relating to the Torah puts itself in the position of the commentator and not in that of the legislator. In this aspect the midrash is similar to the Damascus Document rather to the Temple Scroll.26 There is, however, one fundamental difference between the le-

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gal literature from Qumran and that of the Rabbis. The Qumranic literature continues the biblical tradition in that it is unified and unanimous. There is only one voice, and no names are mentioned (except in the Temple Scroll, in which—as noted above—God himself is the speaker). Rabbinic literature introduces for the first time a new phenomenon—the “manloket,” explicit dispute.27 A few scholars have already noted that this is the most characteristic feature of rabbinic literature. Though aiming at unified norms and therefore constantly occupied with decision making, both midrash and mishnah record different opinions of the Rabbis, including rejected halakhot. Mishnah itself refers to this norm of recording the rejected opinion and gives two different reasons for it: And why do they record the opinion of an individual against that of the majority, whereas the halakhah may be only according to the opinion of the majority? This is [so] that if a court approves the opinion of the individual, it may rely upon him, since a court cannot annul the opinion of another court unless it exceeds it both in wisdom and in number [ . . . ]. R. Judah said: If so, why do they record the view of the individual against that of the majority when it does not prevail? [It is recorded so] that if one shall say, ‘I have received such a tradition,’ they shall say to him, ‘Thou didst hear it only as the opinion of such-a-one—[against that of the majority].’” (m. Eduyot 1:5–6; for Hebrew, see Appendix, no. 4) 28

As Moshe Halbertal notes, these are not simply different explanations, but actually opposing ones. Whereas according to the first opinion the minority view is recorded for the sake of its possible revival in the future, Rabbi Judah suggests that it is meant to make the rejection permanent.29

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The differences between Qumran and rabbinic literature in genre and structure are by themselves best explained, I will argue, by the first model presented in the previous chapter—that is, the developmental model. I will begin that argument by referring to a much-discussed issue in recent scholarship: the relationship between Qumran biblical exegesis and rabbinic midrash.30 From the literary viewpoint, the sectarian halakhic literature is far removed from rabbinic halakhic midrash. It is missing the two most characteristic features of midrash. The first is the dialectical nature of midrashic discourse. As opposed to midrash, the scrolls do not explicate the processes leading to their halakhic or exegetical conclusions. Although these can sometimes be postulated, the Qumranites never spell out their reasoning.31 The second is the midrash’s explicit use of hermeneutical techniques. One can’t find in the scrolls the use of fixed hermeneutical devices (midot), such as “kal va-nomer” (argument a minori ad maius, from the lighter to the weighter and vice versa) or “gzera shavva” (equal ordinaces). Nevertheless, in light of the above analysis of 4Q251 and the penal code, we may say that the Qumran material resembles halakhic midrash in a few aspects and anticipates it. The first is its organizational principle. The arrangement of the details in these two scrolls according to biblical order represents an important common denominator with halakhic midrash and may be considered as an early formation of it. The characteristic of interpreting a sequence of biblical verses is not the only feature that the scrolls shares with Tannaitic halakhic midrash. A second shared trait is the use of the formula “ki . . . hu . . .” (for X is Y) found a few times in 4Q251. Fragment 9 warns not to eat from the new harvest of grain, wine, or oil before the first-fruits gift has been given to the priest: “[No one is to

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consume grain, wi]ne or oil until [the priest has been given] their first fruits. No man is to delay the first fruit and meleºah, for [wine and oil] is the first of the meleºah, and the grain is the demaªa.”32 By using the formula “for X is Y,” the scroll is referring to Exodus 22:28, which reads as follows: “meleºatkha ve-dimªakha lo teºaner” (“You shall not delay your meleºa and demaªa”), explaining that the first of these two dificult words, meleºatkha (your meleºa), refers to “wine and oil” and the second, dimªakha (your demaªa), to grain.33 The Qumranic exegetical formula “ki . . . hu . . .” (for X is Y) is actually the mirror image of the phrasing found many times in halakhic midrash: “ºen . . . ºela” (X is but Y), when here, X is the biblical word and Y is its explanation. As Saul Lieberman notes, this formula constitutes the underlying structure of halakhic midrash, playing a basic role in the exegesis, “to explain the realia and to render the rare and difficult terms in a simpler Hebrew, or, sometimes, in Aramaic.”34 I am not arguing here for a direct literary link between the formulas in the Qumran scrolls and rabbinic midrash, only that the beginning of the use of fixed exegetical formulas, characteristic of the midrash, is to be found already in scrolls. As set forth in the Introduction, finding the traces of the “old” notion in rabbinic literature is a strong indication that the case in question belongs to the developmental model. This is indeed the case with the literary style of the legal writings, I would argue: the Qumran literature represents the old style of writing, while rabbinic literature is the result of changes that took place gradually. And this is, indeed, evident from the fact that remains of the old style can still be detected within rabbinic literature itself. To recall, one of the fundamental characteristics of Qumran litera-

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ture is its uniformity. Though it is true that, in general, rabbinic literature records varied and opposing opinions and does so mentioning the rabbis by name, still we find within it some substantial textual units that are characterized by a unified and unanimous stance. Such, for example, are the lists of transgressors and their various punishments found in tractate Sanhedrin. The second half of this tractate (including tractate Makkot, originally part of the same tractate) consists of six lists of people: those who are liable to one of the four forms of the death penalty (by stoning or by burning, by the sword or by strangulation); those who do not have a share in the world to come; and those who are punished by flagellation. Throughout this substantial textual unit, not a single dispute is recorded nor is any sage’s name mentioned, just as in Qumranic literature. Although these lists constitute the earlier layer of Mishnah, they are not as old as Qumranic literature and cannot be dated to the Temple period. This is evident from the very fact that they include “strangulation” as one of the four modes of execution, and this, as several scholars have already noted, is a new, post-70 rabbinic innovation.35 Thus, these lists are the product of the “Yavne” period (though with most probability based upon old material), but still use the old literary genre.36 What lies behind and forms the background to the fundamental dichotomy between Qumran and rabbinic literature, the dichotomy of uniformity versus plurality, is the theological dispute concerning the source for the text’s authority: divine versus human. Both sectarian writing genres assume divine origin for their content (either via the direct speech of God, as in the Temple Scroll, or via a divinely directed exegetical process, as in the Damascus Document, a phenomenon that will be clarified in the

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following chapter). Obviously, such a belief does not tolerate any disputes or competing views. There is only one voice—the voice of God—dictating the uniform nature of its writings. The Rabbis promoted the idea of human autonomy, which in turn created the social environment for different exegeses and competing understandings of the biblical text. The origins and consequences of this dispute between the Qumranites and the Rabbis is the subject of the next chapter.

two

Divine Revelation and Human Exegesis; Or, How to Recognize a False Prophet When You See One

As I noted at the conclusion of the previous chapter, one of the fundamental differences between the Qumran scrolls and rabbinic literature revolves around the theological dispute concerning the source for the authority of halakhah: divine or human. The Qumran scrolls present the exegesis of the Torah and consequently the halakhic decisions that stem from it as the product of divine inspiration, while the rabbinic writings treat it as an openended process of human exegetical activity. In what follows, I will argue that this aspect of the relationship between early sectarian and later rabbinic halakhic discourse is best explained by the developmental model. This is because early Jewish literature, very much like the Dead Sea Scrolls, strongly tends toward attributing a divine origin to halakhic biblical explanations, while later generations tend toward embracing human activity as a source of authority that is rooted in the exegetical process. The parting of the ways between early sectarian writings and 39

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later rabbinic literature is especially evident in the procedures that the two groups employ for making legal decisions. The nature and extent of this difference is best illustrated by their opposing treatment of the biblical injunctions concerning the false prophet, on the one hand, and the status of the high court’s decisions, on the other. It is to that topic that I will soon turn. To arrive at it, however, allow me first to elaborate further on the background of the Qumranic and rabbinic positions on the authority of halakhah. THE SECTARIAN STANCE

The Qumranites believed that the Torah that God commanded to Israel contains both revealed and hidden commandments, of which the revealed commandments are those explicitly mentioned in Scripture, whereas the hidden ones are those divulged to the members of the sect alone, which remain unknown to the rest of the people.1 Revelation of the hidden commandments ensues from fulfillment of the revealed ones; only he who meticulously observes the commandments of the revealed Torah merits divine revelation of the hidden commandments. This conception is also reflected in the sect’s understanding of the history of the people of Israel. According to the sect’s historical narrative, the Israelites, during the First Temple period, brazenly broke the revealed commandments. Consequently, they were punished by exile and the desolation of the land of Israel. Only a select group, which remained loyal to divine imperatives, was chosen by God for a covenantal relationship. In the framework of this covenant, God revealed the hitherto hidden commandments to it alone.2 The sectarian distinction between “niglot” (revealed) and “ni-

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starot” (hidden) is clearly based on Deuteronomy 29:28: “The hidden matters (ha-nistarot) belong to the Lord our God, and the revealed matters belong to us and our children forever, so as to do all the words of this Torah.” This verse stands at the heart of Moses’s exhortation of the people of Israel (Deuteronomy 29–30), in which Moses elaborates the historical process that will be set in motion when the Israelites sin in the future. There will be individuals among them who will bless themselves in their hearts, saying, “I will have shalom, though in the stubbornness of my heart I will walk” (v. 18). God in turn will exile them from their land “in anger, wrath, and great fury” (v. 27), and the land will be desolate (v. 22). Deuteronomy 29 concludes with our verse, while chapter 30 proceeds to narrate Israel’s future, prophesying the ingathering of the exiles (v. 3). Following the description of the future redemption, Scripture predicts Israel’s true return to God, its true commitment to his commandments and his laws, which are “not too extraordinary for you,” or “too far away!” (30:10–11). A similar exposition of a historical process involving sin, destruction, return to God, and redemption, is found in three places in the Damascus Document (1:3–11; 3:9–20; and 5:20–6:11). Its author, however, relates the circumstances of return and redemption to the sect alone, and not to Israel as a whole.3 It is in this context that the sect’s self-perception as “shave Yisrael” should be understood.4 The designation “shave Yisrael” bears a dual meaning: “penitents of Israel,” which refers to their spiritual state, and “returnees of Israel,” which refers to the group’s history. These two meanings are interrelated. The nation’s misconduct caused corruption of the halakhic traditions, and it is the sect’s task to return to the Torah of Moses, whose true meaning is now revealed to them.

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This is how the historical development is described by the author of the Damascus Document: But out of those who held fast to God’s ordinances, who remained of them, God established his covenant with Israel forever, revealing to them hidden things (nistarot) in which all Israel had strayed: his holy Sabbaths, the glorious appointed times, his righteous testimonies, his true ways, and the desires of his will, which a person shall do and live by them. (These) he opened before them and they dug a well of abundant water. But those who scorn them will not live. (CD 3:12–16; for Hebrew, see Appendix, no. 1)

The process of revealing the hidden things is here symbolized by digging a well. The knowledge that was previously hidden under the text is now uncovered like the water of the well. A more detailed depiction of this allegory is to be found in another passage from Damascus Document: 6:2–11 also describes the history and mechanism of the new sectarian revelation. And God recalled the covenant with the first ones, and he raised up from Aaron men of discernment (nevonim) and from Israel wise men (nakhamim); and he allowed them to hear. And they dug the well (of which it is written) “the well was dug by the prince and excavated by the nobles of the people, with a ruler” (Numbers 21:18). The “well” is the Torah and those who “dig” it are the penitents of Israel who depart from the land of Judah and dwell in the land of Damascus. God called them all “princes,” (´sarim) for they sought him (drashuhu) and their honor was not rejected by anyone’s mouth. And the “ruler” (menokek) is the interpreter of the Torah (doresh ha-Torah), of whom Isaiah said, “He takes out a tool for his work” (Isaiah 54:16). And the “nobles of the people” are those who come to excavate the well with the statutes (ba-menokekot) which were

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ordained by the ruler to walk in them in the entire time of evil, and (who) will obtain no others until the rise of one who will teach righteousness in the end of days. (For Hebrew, see Appendix, no. 2)

The author of this passage endowed Numbers 21:18 with a contemporary-allegorical interpretation. In this interpretation, which is written as a Pesher,5 each of the seven words in the verse is expounded: the “well” is the Torah, its “excavators” are the penitents of Israel, that is, the sect members themselves, who are also the “chieftains” and the “nobles” who come to “excavate” the well with the “statutes” ordained by the “ruler,” who is the interpreter of the Torah. By means of this pesher, the author of the Damascus Document weaves a conception of the revelation of hidden laws that integrates divine inspiration and human intellectual creativity. The aspect of divine inspiration is realized in the figure of the interpreter of the Torah sent by God to provide the tools for its interpretation, while the actual process of interpretation is carried out by the membership of the sect as a whole in their discernment and their wisdom. The prophetic element of this divinely inspired exegetical process finds even clearer expression in a passage from the Rule of the Community: Everything which has been concealed from Israel and is found by “interpreter” (ºish ha-doresh)—he shall not conceal it from these out of fear of a backsliding spirit. And when these have become a community in Israel in compliance with these arrangements they are to be segregated from within the dwelling of the men of sin to walk to the desert in order to open there His path. As it is written: “In the wilderness prepare the way of the Lord, make level in the desert a highway for our God.” (Isaiah 40:3)

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This (alludes to) midrash ha-Torah that he commanded through Moses to do, according to everything which has been revealed from time to time, and by what the prophets have revealed by his Holy Spirit. (1QS 8.11–16; for Hebrew, see Appendix, no. 3)

In this passage, the link between midrash ha-Torah and the revelation of concealed things appears twice: in the injunction that the interpreter should not conceal his discoveries and in the application of the proof-text from Isaiah to the study of the law in order to enable the sect to comply with what is revealed from time to time. What is the nature of this “midrash ha-Torah” mentioned here, and who is the “interpreter” (ºish ha-doresh)? These terms can be read in two distinct ways with regard to the prophetic nature of the process. Some scholars read it “strongly” and claim that this is a process of revelation that occurs in a prophetic vein, basing their argument on the use of the verb “darash,” which they understand as “one who seeks.” Thus, the interpreter is one who seeks God,6 and, based on the concluding statement, “as the prophets have revealed by his Holy Spirit,” the “midrash ha-Torah” revealed from time to time is prophetic in nature. I prefer, however, a “softer” reading of the passage, one that gives more room to human activity in the process. Accordingly, the “midrash ha-Torah” referred to in this passage is the exegetical study of the Torah. This reading is supported by the author’s reliance on a verse from Isaiah (40:3). For him, the sect’s seclusion and relocation in the wilderness represent the fulfillment of this biblical injunction, whose purpose is to prepare the way of the Lord. The activity of preparing the way, of making the way level, is a metaphor for the sect’s exegesis of the Torah in the desert, whose ultimate result will be divine revelation: “The presence of the Lord shall appear, and all flesh, as one, shall behold—For the Lord himself has spo-

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ken” (Isaiah 40:5, which is not cited in the passage).7 The above two passages thus present similar pictures of the sect’s understanding of the law as a result of a divinely inspired activity described in a prophetic vocabulary. THE RABBINIC STANCE

The rabbinic view diverges sharply from the sectarian one. The rabbinic view of the role of human cognition in the creation and development of the halakhah has been summed up by Yonah Frenkel as follows: “There is no evidence in rabbinic literature— not even in the earliest Tannaitic homilies in our possession—of any human or societal limitation on the understanding of the Torah. There is, however, in rabbinic opinion, a clear distinction between homily and halakhic derivation on the one hand and prophecy on the other.” 8 It is almost customary for scholars to illustrate the Rabbis’ denial and rejection of any divine intervention in the exegetical process using the famous anecdote about the dispute between Rabbi Eliezer ben Hyrcanus and his colleagues regarding the purity of a certain oven.9 A dominant motif in the versions of this story in both the Babylonian and the Jerusalem Talmud is Rabbi Eliezer’s attempt to obtain heavenly confirmation for his halakhic stance by inducing supernatural events. A carob tree is uprooted, the water in an aqueduct flows backwards, the walls of the study house are inclined to fall, and even an echo from heaven declares explicitly: “The law (halakhah) follows Eliezer, my son.” Nevertheless, the sages insist: “It is not in heaven” (Deuteronomy 30:12). Clearly, the disputed issue here is the source of authority for halakhic rulings. According to the majority of the sages, in contrast to Rabbi

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Eliezer’s viewpoint, halakhah is a product of human activity and is determined by a human process, not by divine, supernatural events. Notice, however, that according to this tradition Rabbi Eliezer is holding fast (as in many other cases) to the ancient view, similar to that expressed in the Dead Sea Scrolls.10 As will be explained later in this chapter, I am of the view that despite its legendary nature, this story accurately reflects the views of Rabbi Eliezer and his first- to second-century colleagues. Nevertheless, I am aware of the methodological difficulties involved in depending solely upon this source. It may be argued that because this tradition is recorded only in the Talmuds, it can testify only to the worldview of their fifth-century editors and not to that of the historical first- to second-century rabbis.11 Therefore I suggest here exploring the issue from a different and somewhat surprising direction: the injunctions concerning the false prophet and the status of the high court’s decisions.

AUTHORITY, FALSE PROPHETS, AND THE HIGH COURT’S DECISIONS

The Torah deals with the two subjects of false prophets and the decisons of the high court in close proximity: in Deuteronomy, chapters 17 and 18. In Deuteronomy 17, the Torah treats the question of legal cases that are too difficult for the local court to decide. In such a situation, it mandates that the case be brought before the priests and judges of the central court in Jerusalem (“the place that the Lord your God will have chosen,” Deuteronomy 17:8), who deliver the verdict in the matter. The Torah stresses that the high court’s decision is final and irreversible, and must be obeyed. A death penalty awaits the local judge who refuses to follow the

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verdict (referred to in Talmudic literature as the rebellious sage— zaken mamre): “You shall act in accordance with the instructions given you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left. Should a man act presumptuously and disregard the priest charged with serving there the Lord your God, or the magistrate, that man shall die” (17:11–12). In a series of homilies on these verses in the Tannaitic midrash, Sifre Deuteronomy, the Rabbis establish the independence of the human authority of the court. On the words “you are to appear before the levitical priests, or the magistrate in charge at the time” (v. 9), Rabbi Jose the Galilean comments as follows: “Would it occur to you to go before a judge who is not living in your own days? (Of course not!) Rather, the verse means that you are obligated to listen only to a judge who is qualified and approved of at the time. . . . This point is demonstrated elsewhere in Scripture, ‘Say not: Why were the former days better than these? For it is not out of wisdom that you ask this’ (Ecclesiastes 7:10)” (Sifre Deuteronomy, 153). The same idea is expressed by the famous saying added to this midrash in the Talmud: “Jepthah in his generation is like Samuel in his generation” (b. Rosh HaShanah 25b). Even more radical is the following homily that paraphrases verse 11, “you must not deviate from the verdict that they announce to you either to the right or to the left.” Regarding this verse the midrash states: “even if before your very eyes they show you that right is left and left is right, obey them” (Sifre Deuteronomy, 154). That is to say, the obligation to obey the court’s verdict is solely dependent on the current judges’ interpretation of the words of the Torah.12

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This rabbinic stance stands in sharp contrast to the following rephrasing of the same verses in Temple Scroll (56, 1–11): And they shall investigate the matter about which you came and they shall make the sentence known to you. You must act according to the law that they proclaim to you, in keeping with the decision that they render you from the book of the Law (misefer ha-Torah). They shall pronounce to you the truth (ve-yagidu lekha be-ºemet) from the place where I shall choose to establish my name. You must be careful to do everything they teach you, according to the decision that they render you. You are to depart from the law that they declare to you neither to the right nor the left. Any man who does not obey, but acts rebelliously, heeding neither the priest who stands there to minister to Me, nor the judge, must die. (For Hebrew, see Appendix, no. 4)

Although literally only slightly different from Scripture, two small insertions in the Temple Scroll’s paraphrase are significant: the judges’ verdict should be in accordance with the book of the law—“the Torah”—and what they pronounce should be the “truth.” In his commentary on the scroll, Yigael Yadin rightly notes that the first addition is a polemical statement directed against the Pharisees.13 The Pharisees, as Josephus informs us, adhered to their forefathers’ halakhic traditions, whereas the Sadducees always appealed to Scripture.14 More important for our present scrutiny is the second insertion, that the verdict should be in accordance with the truth. Contrary to the rabbinic view, in which the obligation to follow the high court’s verdict inheres in its divinely granted authority, according to the Temple Scroll, the obligation to follow the high court’s decision is the result of its access to the book of the Torah, which makes it a reliable conduit for delivering divine truth.15 The injunction to obey the court’s decision

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is therefore subject to its veracity. This conclusion bears serious consequences (at least in theory), because it transfers the responsibility for the right deeds from the court back to the people. The crucial question yet to be answered is thus how one is to decide whether or not what he has been instructed by the judges is the truth. Let us put this question aside for the moment and turn our attention to the biblical pericope about the false prophet, because I believe that the answer we are seeking lies in the scroll’s interpretation of this subject.

HOW TO RECOGNIZE A FALSE PROPHET: THE RABBINIC WAY

In Deuteronomy 18, Moses promises the Israelites in the name of God that He will raise up for them a prophet like him and instructs them to follow that prophet’s words. At the same time he also warns them against the false prophet, “who presumptuously speaks a word in my name that I have not commanded him to speak” (18:20). Obviously, this prophet should not be followed. The unavoidable problem is, how do we decide whether this man is a false prophet or whether God has really sent him to deliver us his new words? Scripture itself addresses this problem. Thus we read in Deuteronomy 18:21–22, “Now if you should say in your heart: How can we know it is the word that God did not speak? Should the prophet speak in the name of God but the word not happen—not come about—(then) that is the word that God did not speak; with presumption did the prophet speak it; you are not to be in fear of him!” Unfortunately, this is of little comfort, because we still do not know what to do in the meantime: should we listen to the prophet, or not?16

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This confusion is also evident in the classic biblical episode of a false prophet, namely the clash between Jeremiah and Hananiah the son of Azzur. The book of Jeremiah (ch. 28) tells us that Hananiah delivered his prophecy of consolation in the presence of Jeremiah, the priests, and the people, promising that the Temple’s treasures would be returned to Jerusalem in two years’ time. Jeremiah’s reaction is of interest. Though he casts doubts on Hananiah’s prophecy, being uncertain as to its veracity, Jeremiah simply says: “Amen! May the Lord do so! May the Lord fulfill what you have prophesied (Jeremiah 28:6).” It is only later, after Jeremiah has had a special vision, that he knows for certain that Hananiah is a false prophet. Jeremiah then publicly accuses Hananiah as follows: “Listen, Hananiah! The Lord did not send you, and you have given this people lying assurances” (28: 15). How, then, can one detect a false prophet? The answer is that doing so requires another, true prophet. The Rabbis solved this problem in a most elegant fashion. Lacking the tools to deal with prophets, they treat them as if they were sages. That is to say, the sole criterion for determining whether a prophet’s words are true or false is whether or not they concur with halakhah. This is evident, first and foremost, in the way rabbinic sources treat Hananiah ben Azzur himself. The Tosefta identifies Hananiah as one of the two types of false prophet mentioned in the Mishnah (Sanhedrin 11:5): “One who prophesies concerning something he did not hear . . . or what has not been told to him, like Hananiah ben Azzur” (t. Sanhedrin 14:14). Hananiah is thus the example of a false prophet who prophesies what has not been told to him, though it has been told to someone else. The tradition is further explained in both Talmuds (y. Sanhedrin 11:7; b. Sanhedrin 90a) in a similar way: Hananiah did

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not invent the content of his prophecy, but extrapolated it, though incorrectly, via the logical procedure of “kal vanomer” (argument a minori ad maius) from Jeremiah’s prophecy itself. In the words of Rabbi Joshua ben Levi, as recorded in the yerushalmi: “Hananiah ben Azzur was a true prophet. But he was a plagiarist. He heard what Jeremiah prophesied in the upper market and went down to the lower market and prophesied again what he understood from it.”17 Accordingly, Hananiah’s prophecy was not prophecy at all, but words of wisdom; he acted not as a prophet, but as a sage. The Talmud does not even propose that Hananiah’s conclusions were logically wrong; his sin is that he presents his wisdom as God’s words saying, “Thus said the Lord.” He should be punished not because of the content of his words (though they weren’t true), but because he presented them as prophecy and asked for them and for himself an authority that he didn’t have. Note that Rabbi Joshua presents Hananiah ben Azzur as “true prophet.” Apparently, Rabbi Joshua wasn’t the first to suggest that Hananiah was a true prophet—Rabbi Akiva had done so before him. He refers to the difficult verse in Deuteronomy 13:1–3, “If a prophet or a dreamer of dreams arises among you and gives you a sign or a wonder, and the sign or wonder that he tells you comes to pass, and if he says, ‘Let us follow other gods,’ which you have not known, ‘and let us serve them,’ you shall not listen to the words of that prophet or that dreamer of dreams.” How is it that God allows this prophet to support his false message with a sign or miracle? “Said R. Akiva: God forbid! He (God) will not stop the sun, the moon, and the stars ( = make miracles) for idol worshipers. Scripture speaks of true prophets who turned away and became false, like Hananiah ben Azzur” (Sifre to Deuteronomy, 84).

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Rabbi Akiva is actually suggesting a whole new reading of this episode. According to this reading, the sign mentioned in the verse isn’t given by the prophet in the present case. Rather, it relates to his deeds in the past. Our prophet is a respectable figure in his community who has already established his reputation as a trusted prophet in the past. He is now willing to use this credibility to deliver his current, false message, relying on the miracles he performed in the past. It is this prophet that Scripture warns against following. As an example of such a prophet, Rabbi Akiva points to Hananiah ben Azzur. Now, the problem that rises again is, how we can know that our prophet’s present prophesy is false? The answer lies in the content of his prophesy: “Let us follow other gods.” God will never instruct us to worship idols, therefore, the prophet who claims this is without doubt a false prophet. Along the same lines, we find the following definition for the false prophet in the Tosefta: One who prophesies to uproot anything from the words of the Torah is liable (for the death penalty as a false prophet). R. Simon says: If he prophesies to nullify part and to keep part he is exempt (from the punishment meted to the false prophet). But if it concerns worshiping idols, in that case even if he orders it as a temporary measure, he is liable (for the death penalty as a false prophet). (t. Sanhedrin, 14:13)

Here again is the same argument: God will never issue a command to worship idols, nor will he annul any commandment that he mandated in the Torah. If a prophet claims God told him to do so, he should not be believed. The test, therefore, is that any prophecy against the law is a false prophecy.18

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HOW TO RECOGNIZE A FALSE PROPHET: THE SECTARIAN WAY

The Qumranites had a totally different solution to the problem of the false prophet, as can be seen in 4Q375 (apocrMosesª): [You shall do all that] your God commands you by the prophet’s mouth, and you shall keep [all these pre]cepts, and shall return to yhwh, your God with all [your heart and with all] your soul, and your God will repent of the fury of his great wrath [in order to save] you from all your troubles. But any prophet who rises up to preach [apostasy] to you, [to make you] turn away from God, shall die. Yet if the tribe to which he belongs comes forward and argues, “He is not to die, for he is a just man, he is a trustworthy prophet,” you shall come with that tribe and your elders and your judges to the place that your God will choose in one of the territories of your tribes. You are to come before the priest who has been anointed, upon whose head the oil of anointing has been poured [ . . . ] And he shall take [a young bullock from the herd and a ram and he shall sprinkle] with his fingers [over the surface of the kapporet ] [. . .] the flesh of the r[am ] [. . .] and the h[e-goat] for the sin offering, he shall ta[ke] it [and slaughter it, and at]one for all the congregation. And Aa[ron shall sprinkle with the blood] in front of the veil of the curtain and shall approach] the ark of the testimony and shall ask for [all the precepts of ] yhwh concerning all [ which] have been hidden from you. And he shall go out before a[ll the chiefs] of the assembly.19 (For Hebrew, see Appendix, no. 5)

The author of this scroll clearly interwove the two abovementioned passages from Deuteronomy: that of the false prophet and that of the authoritative status of the high court. After a gen-

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eral opening statement about the obligation to obey God’s commandments as delivered by the prophets, the passage proceeds to a case in which the tribe of an alleged false prophet defends him, arguing that he is a just man and a trustworthy prophet. In that case, the author requires that a certain procedure be performed to determine whether or not the prophet is truthful. This procedure is clearly based on the biblical description of a local court’s approach to the high court for advice and a final verdict. The two parties go up to the place God has chosen and appear before the anointed priest. The priest must perform a specific sacrificial ritual (similar to the Day of Atonement ritual), which allows him to enter the sanctuary, behind the curtain in front of the ark, where all the hidden things will be revealed to him. In another very fragmentary scroll—4Q376—that John Strugnel has suggested belongs to the same composition, there is a description of what appears to be the end of this oracular ritual. The “Urim and Thummim” are mentioned and “tongues of fire on the left stone” that “will shine in the eyes of all the assembly until the priest finishes speaking.” The passage ends with the injunction, “and you will keep and do all that he tells you.”20 This fantastic ritual essentially suggests a new meaning for the biblical injunction “You shall carry out the verdict which they pronounce to you from that place that the Lord chose” (Deuteronomy 17:10). “That place” is not merely where the high court resides, but the heart of the sanctuary, the “Holy of Holies.” To summarize the above discussion, we may say that whereas the Rabbis, due to the lack of appropriate means, treated the false prophet as a sage, the Qumranites took the opposite tack. Because they understood the exegetical process as the outcome of divine revelation, they reread the biblical pericope concerning the obli-

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gation to follow the high court’s decisions and the punishment for the rebellious sage who denies its authority as applying to the false prophet, as well. Thus, the veracity of both (the false prophet and the high court) is to be determined from “that place”—the “Holy of Holies”—via direct divine revelation. While for the Rabbis the appropriate institution to handle the case of both the prophet and the sage is the court, for the Qumranites, it is the Temple. For them, it is a divine decision, while for the Rabbis, it is in the hands of humans. The very different treatment of the two groups in depicting the procedures concerning the false prophet and the attitude toward him is actually a reflection of their perceptions of the possibility of having prophecy occur in their time. The Rabbis believed that prophecy already had ceased for many years, and thus their discussions concerning who is a true prophet and how to detect his counterpart, the false prophet who pretends to be God’s messenger, were solely theoretical.21 The Qumranites, on the other hand (though none of the scrolls claim to be a prophecy), were undoubtedly anticipating the resumption of prophecy in their present. The high expectations for the reappearance of prophecy were part of the messianic tension that the “Yahad” experienced, and it is expressed in the following famous quotation from The Rule of the Community 9:10–11: “[They] shall be ruled by the first directives which the men of the Community began to be taught until the prophet comes, and the Messiahs of Aaron and Israel.”22 HOW DO WE KNOW WHAT GOD WANTS?

At the outset of this chapter, I described the sectarian belief in revelation, explaining their Torah study as revealing of the hidden

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knowledge (nistarot) in the Torah. If that is the case, we might ask, if two or more of the members of the community have different explanations of a certain verse in the Torah, explanations that might bear different legal (halakhic) consequences, how do we know who is right and whose reading is false? How do we know what God really wants from us? The rabbinic movement developed a rather simple mechanism: decisions are to be made by vote and decided according to the majority. This is how a baraita from the Babylonian Talmud (Sanhedrin 88b)23 describes the process. It has been taught; R. Jose said; Originally there was no dispute (manloket)24 in Israel, but one bet din (court) of seventy-one members sat in the Hall of Hewn Stones, and two courts of twenty-three sat, one at the entrance of the Temple Mount and one at the door of the [Temple] Court, and other courts of twenty-three sat in all Jewish cities. If a matter of inquiry arose, the local bet din was consulted. If they had a tradition [thereon] they stated it; if not, they went to the nearest bet din. If they had a tradition thereon, they stated it, if not, they went to the bet din situated at the entrance to the Temple Mount; if they had a tradition, they stated it; if not, they went to the one situated at the entrance of the Court, and he [who differed from his colleagues] declared, “Thus have I expounded, and thus have my colleagues expounded; thus have I taught, and thus have they taught.” If they had a tradition thereon, they stated it, and if not, they all proceeded to the Hall of Hewn Stones, where they [i.e., the Great Sanhedrin] sat from the morning tamid until the evening tamid. . . . The question was then put before them: if they had a tradition thereon, they stated it; if not, they took a vote: if the majority voted “unclean” they declared it so; if “clean” they ruled even so. (For Hebrew, see Appendix, no. 6)

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To what degree Rabbi Jose’s tradition is reliable historically is an issue debated by scholars.25 For the present discussion, however, it doesn’t really matter. Even if this description of the Sanhedrin is merely a myth, the very fact that this is how the Rabbis portrayed the process is enough, because it reveals their own view concerning the ideal procedure for making decisions. It should be noticed, however, that while the baraita discusses voting and decision making according to the opinion of the majority, it still gives priority to the power of tradition: “if they had a tradition thereon, they stated it; if not, they took a vote.” This recalls Josephus’s description of the Pharisees as holding fast to their ancestors’ tradition, probably giving it priority over contemporary exegetical suggestions. The mechanism of reaching a decision by voting is unacceptable in a society that believes in an ongoing revelation. This is because the underlying assumption behind the voting system is that there is no definite truth and that the process doesn’t pretend to determine it.26 Voting is in general considered a procedure to arrive at an agreed norm, not as a way to reach the truth. For the same reason, from the revelationary standpoint, competing views can’t be decided by using logical means. If God has revealed to me the correct meaning of a certain verse, no linguistic arguments or literary analysis will convince me that I am wrong. This is why one of the basic characteristics of the later rabbinic house of study (bet midrash), the dialectical give and take between the participants in the discussion, couldn’t develop within the Qumran sectarian community. For them, there is only one truth—what has been spoken by God. A community that believes in ongoing revelation and grants access to it to anyone who studies the Torah, that is, that assumes that each one of its members may be potentially inspired with this divine revelation, is a sure recipe for chaos.

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Conversely, tension and anxiety can also accompany reaching halakhic decisions by the opinion of the majority, as we can learn from the following tradition from m. Yadayim. The Mishnah records a long and detailed debate between the Rabbis concerning the issue of the required tithe to be given by the Jews in Ammon and Moab (regions east of the Jordan) from the produce of the seventh year (the sabbatical year—shemita). Should it be the second tithe, as was the custom in Babylon, or the tithe for the poor, as was the tradition in Egypt? In this debate, which takes place on the day when Rabbi Elªazar ben Azaria was first nominated as a member of the Yeshiva, he is of the opinion that it should be the second tithe, while Rabbi Tarfon’s view is that they should give the tithe for the poor. After a long debate in which Rabbi Yishmael and Rabbi Joshua participate as well, they take a vote, and the decision is made according to Rabbi Tarfon’s view that the tithe to be given is the tithe for the poor. And when R. Jose the Damascene (Durmaskith) came to R. Eliezer in Lydda he said to him: What new thing had you in the house of study today? He said to him: the votes were counted and they decided that Ammon and Moab must give tithe for the poor in the seventh year. R. Eliezer wept and said: “The counsel of the Lord is with them that fear him and his covenant, to make them know it (Psalm 25:14).” Go and tell them: Do not have any apprehension on account of your voting. I received a tradition from R. Yohanan ben Zakkai who heard it from his teacher, and his teacher from his teacher, and so back to an halakhah given to Moses from Sinai, that Ammon and Moab must give tithe for the poor in the seventh year. (m. Yadayim 4:3; for Hebrew, see Appendix, no. 7)

This story of Rabbi Eliezer’s reaction to the decision made by his colleagues is illuminating from two aspects. The first is the

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kind of support he found for the veracity of the court decision: “I received a tradition.” The use of tradition as an authoritative argument places Rabbi Eliezer within the Pharisaic consensus giving tradition priority to override any other consideration in the decision-making procedure. This is not an insignificant piece of information, given the fact that Rabbi Eliezer was a disciple of the School of Shammai and held fast to some old traditions similar to those of the Qumran sectarians. And it is especially significant in light of another aspect of the reaction. Why did Rabbi Eliezer weep, and why did he say to Rabbi Jose the Damascene, “Go and tell them: Do not have any apprehension on account of your voting”? Nowhere had we found the Rabbis having any hesitations concerning their decision. It was, rather, Rabbi Eliezer’s own reservations (and maybe Rabbi Jose ben Durmaskith’s as well) in regard to this decision-making procedure that is reflected in the story, or so I would argue. The portrayal of Rabbi Eliezer in this mishnah is very much like that depicted in the episode of Akhnai’s oven mentioned above, and in its turn strengthens the reliability of its historical nucleus in representing accurately the opposing views of Rabbi Eliezer and the sages. Rabbi Eliezer refuses to accept the opinion of the majority in that episode because he believes he is in possession of the truth and even obtains divine support for his stand. In this respect, Rabbi Eliezer’s position resembles the sectarian ethos of the revelationary exegesis of the Torah, and it is this belief that prevents him from subordinating himself to the opinion of the majority. It is thus not surprising that in the current episode concerning the tithes of the sabbatical year, Rabbi Eliezer is relieved when he finds that the decision of the Rabbis has coincided with the tradition on this matter.

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There is however, something more than that in the story. Rabbi Eliezer’s first reaction is to quote the verse from Psalms (25:14), “the counsel of the Lord is with them that fear him and his covenant, to make them know it.” By using this verse, Rabbi Eliezer reveals to us the theological justification that enables him to accept the principle of making decisions according to the majority opinion. God, with his grace, grants the majority that their decision will be according to the truth. Or, in the opposite direction, the fact that a specific stance is accepted by the majority testifies to its veracity. It is important to stress that this is not the common understanding of “majority decision.”27 Many rabbinic sources express the view that it is a procedural process not meant to determine the truth, as has already explained above. One such source is the saying of Rabbi Jose partially discussed above: “Originally there was no manloket in Israel. . . . But when the disciples of Shammai and Hillel, who [namely, the disciples] had insufficiently attended upon [their Masters], increased [in number], manlokot multiplied in Israel, and the Torah became as two Toroth” (t. Hagiga 2:9). As pointed out by Shlomo Naeh, the correct translation for the word “manloket” in this case is “partition” or “parties,” and it is the Hebrew equivalent of the Greek sta s j i˜.28 Rabbi Jose didn’t argue that in the early days there were no disputes, only that they practiced an agreed-upon procedure (described thereafter) that enabled them to overcome their differences and create one, normative, binding custom. What bothered Rabbi Jose was the question of why the Schools of Hillel and Shammai couldn’t reach an agreement and why the system didn’t work for them. The answer that Rabbi Jose offered is that the disciples should be blamed for the unfortunate situation that occurred because they didn’t attend

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to the teachings of their “Masters” sufficiently. The system of “majority decision” requires a preliminary agreement on the validity of the process, and a consequence of the lack of this agreement is the creation of two parties, such that “the Torah became as two Toroth.” Of great importance for our current discussion is the fact that in spite of his disappointment over that unfortunate situation, Rabbi Jose nevertheless legitimizes the varied practices employed by the opposing groups. This clearly attests that they didn’t consider the majority decision as determining the truth, but rather saw it as an agreement upon one unified behavior. The same view emerges from the following baraita. t. yevamot 1:2 states: “The halakhah is indeed according to the opinion of the House of Hillel. Whoever wishes to take upon himself the strict norms of both the House of Shammai and the House of Hillel—to him Scripture refers by saying: ‘the fool is walking in the dark’ (Ecclesiastes 2:14). Whoever follows the leniency of both—he is wicked. Rather one should follow in full either the House of Shammai or the House of Hillel.” The contradiction between the opening statement that halakhah is according to the House of Hillel and the rest of the baraita that allows following the opinion of Shammai is discussed in both Talmuds and by commentators, traditional and modern alike.29 The most plausible solution is that the baraita consists of two historical layers. The last part of it belongs to the earlier stages of halakhic development. Only later, when the victory of the House of Hillel had been established, was the opening statement added, now decreeing that the halakhah is according to the opinion of the Hillelites. The baraita recognizes and legitimizes the possibility that two competing halakhic customs can coexist side by side, although this is not an ideal situation. This is

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a clear reflection of a theological stance that doesn’t view the decision made by majority vote as determining the truth. The ruling by the court in favor of one view or the other is merely a technical procedure enabling the establishment of a unified custom. We now turn back to Qumran. Some scholars have suggested that the Qumranites, too, reached juridical verdicts and communal decisions by vote and according to the majority opinion.30 Chaim Rabin argues that the system is evident from the following law in the penal code: “And whoever falls asleep up to three times at a session shall be punished (for) ten days, but if they should be standing (ve-ºim yizak fu) and he depart then he shall be punished (for) thirty days” (1QS 7, 11–12). Rabin suggests that the situation described in this decree is the moment of the communal voting: all who were in favor of the suggested resolution had to stand in order to be counted. To support his stance, Rabin points to the mishnaic term for voting— “ªomdim le-minyan,” literally translated as “stand up for counting” (m. Sanhedrin, 5:5). However, Rabin’s proof appears to be wrong. Instead of “ªomdim le-minyan,” the best manuscripts of Mishna Sanhedrin (mss. Koufmann and Parma) read here, “ªomdim ªal ha-minyan,” the straightforward meaning of which is: “they should look into the numbers” ( = counting).31 Consequently there is nothing in the Mishna that tells us that the actual voting was performed by standing up, and as a result, we may conclude that the abovequoted clause from the penal code, though not entirely clear, has most probably nothing to do with the procedure of voting. On the other hand, as I have suggested above, making decisions according to the opinion of the majority is unlikely to be practiced by a group that believes in an ongoing revelation. Surprisingly, The Rule of the Community is silent with regard

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to this issue. 1QS 6: 8–13 describes in detail the way in which the session of the Many should be conducted, but fails to report on the last phase of the discussion and says nothing about how decisions are to be made. More informative is the scroll’s reference to the procedure for accepting new members. After a new member has been examined by the overseer, the Many are asked to approve or reject him, and “as the lot comes out according to the counsel of the Many, he shall approach or withdraw” (6:16).32 A year later, the case of the new candidate is brought again before the Many and “if the lot should go out to him that he should approach the assembly of the Community according to the priests and the multitude of the men of their covenant, then. . . .” (6:19). Notice that in the first instance, only the Many are mentioned, while in the second, the body by which the decision is made includes the priests and the multitude of the men of their covenant. This difference brings us to a very important observation made by Albert Baumgarten in regard to the differences between 1QS and the Cave 4 fragments of the Rule of the Community.33 Whereas in the Cave 4 version the members of the community are instructed to act “according to the authority of the Many in every affair involving the law [property and judgment],”34 the Cave 1 version demands that they “acquiesce to the authority of the sons of Zadok, the priests who safeguard the covenant, and to the authority of the multitude of the men of the Community, those who persevere steadfastly in the covenant. By its authority, decision by lot shall be made in every affair involving the law, property and judgment” (1QS, 5:1–4). Baumgarten, using sociological comparative methods, theorizes that the Cave 4 version was composed in the early, formative stages of the sect. At that time, the community indeed practiced egalitarian norms. Thus, deci-

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sions were made by all members equally. The fact that the group was relatively small and intimate enabled its members to reach an agreed consensus. Over time (and perhaps with the appearance of the Teacher of Righteousness), this become impractical, and a hierarchical system developed giving the priests, the sons of Zadok, prime authority over halakhic decision making. There is no need to assume that in the new social structure of the community, revelation of God’s words was denied to the ordinary members, only that the Zadokite priests were considered the prime recipients of it and the validators of any new revelation.35 I would assume that in practice, the priests, using their authority, led the session of the Many in such a manner as to reach consensual agreement in line with their will. This sheds new light on another famous passage in the Rule of the Community. “Everything which has been concealed from Israel and is found by somebody who studies (ºish ha-doresh)—he shall not conceal it from these out of fear of a backsliding spirit” (1QS, 8:10). What seems to be a declaration of equality granting each of the members the possibility of being involved in the process of revealing the knowledge hidden in the Torah is actually a sophisticated means for inspection and control. The individual student (ºish ha-doresh) is encouraged to share his new findings with the community’s leaders and its members not so much for the benefit of the leaders’ knowledge, but rather to prevent the spread of any objectionable thoughts. The poor member was probably persuaded, gently or otherwise, that he was misled by his own imagination into thinking that he had been granted a true revelation. What we find here, as in many other cases, is a wide gap between the egalitarian rhetoric and language used in the scroll

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and actual, hierarchical, practical behavior within an authoritative social structure. Before closing this chapter and the discussion concerning the parting of ways of the Qumran sectarians and the Rabbis with regard to the origin of the law and the procedures of decision making, we should look again into the rabbinic literature. In the rabbinic tradition, the rule that the decision is to be made in accordance with the opinion of the majority refers not only to decisions between the different views of the judges in the courtroom or the sages attending the meeting in bet ha-midrash (study house), but also to the general diverse views of the sages. Thus we read in m. Eduyyot (1, 5): “And why do they record the opinion of a single person among the many, when the halakhah must be according to the opinion of the many? So that if a court prefers the opinion of the single person it may depend on him.”36 This mishnah does not deal with decisions made in court or in bet ha-midrash. Rather, it concerns the correct manner in which the competing opinions of the Rabbis should be recorded in the Mishnah, assuming that the halakhah has already been decided according to the majority. The picture becomes more complicated in light of the following passage from the Babylonian Talmud. The Talmud refers to two disputes recorded in the Mishnah concerning the obligation to cover the blood of a slaughtered animal and the prohibition on slaughtering an animal and its offspring on the same day in cases where, in any event, it is not permissible to consume the flesh of the animal.37 In the first mishnah, which deals with the prohibition on slaughtering an animal and its offspring at the same day, it is recorded that Rabbi Simeon is of the opinion the that the man who slaughters in this way is exempted from punishment, but the

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“Sages” (nakhmim) are of the opinion that he is liable. In the second mishnah, which deals with the obligation to cover the blood of the slaughtered animal, Rabbi Meir is of the opinion that this man is liable, but the “Sages” (nakhmim) exempt him from punishment.38 To this, the Talmud reports: “Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan: Rabbi [Judah the Prince] approved of Rabbi Meir’s view in connection with the law of ‘It and its young’ and stated it in the mishnah as the view of ‘the Sages’ and he approved of Rabbi Simeon’s view in connection with the law of covering up the blood and stated it in our mishnah as the view of ‘the Sages’” (b. Hullin 85a). Rabbi Yohanan knew that “the Sages” (nakhmim) in the first mishnah refers in fact to Rabbi Meir and that the sage who disputed Rabbi Meir in the second mishnah was actually Rabbi Simeon. It was Rabbi Judah the Prince (the editor of the Mishnah) who attributed the favored view to the “Sages” in order to present it as the opinion of the majority that the halakhah should be decided in accordance to them. What emerges from this surprising statement of Rabbi Yohanan is that within the rabbinic system, very much as in the sectarian system, there was a wide gap between the rhetoric and the reality. In fact it was Rabbi Judah the Prince who, by using his authority as the editor of the Mishnah, made the decision in favor of Rabbi Meir’s stance in the first case and in favor of Rabbi Simeon’s in the second. But the way he did it was by presenting the prevailing opinion as if it were the opinion of the majority of the Rabbis. The rhetoric is thus the rhetoric of a democratic procedure, but in practice, hierarchy, authority, and charismatic figures play an important role in determining the halakhah. Presenting the opinion of a single sage as if this is the opinion of the many in order to determine the halakhah in accordance

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with the editor’s own view is but one strategy used by the editors of rabbinic literature to favor one opinion over another. In spite of the mishnah’s declaration concerning the need to record the rejected minority opinion in case a future Bet-Din (court) will find it necessary to rely on this opinion,39 we find that this is not always the case. I here present just one example of this interesting phenomenon in rabbinic literature. Whereas the primary Tannaitic sources present only one view, as if this were the accepted opinion, a different voice can still be detected, though only in secondary, marginal sources. The death penalty for adulterers (a man who has intercourse with a married woman and the woman herself ) is mentioned twice in the Torah, once in Leviticus 20:10 and a second time in Deuteronomy 22:22. In both these instances, the punishment is described in general terms only: “The adulterer and the adulteress shall surely be put to death.” According to the accepted rule in rabbinic literature, every unspecified death penalty in the Torah is to be carried out by strangulation. Thus, the Mishnah in Sanhedrin (11:1) lists the adulterer among those who are liable to the death penalty by strangulation. This is also the only view expressed in the midrash on both biblical passages.40 Surprisingly, traces of a different view have been preserved in Mekhilta (the halakhic midrash on Exodus) in a passage that deals not with the law of the adulterer, but with that of the murderer. As phrased in the Torah, the murderer’s verdict uses the same general formula: “mot yumat” (he shall surely be put to death—the murderer). The midrash on this verse reads as follows: Shall Surely Be Put to Death.—By the sword. You say it means by the sword. Perhaps it is not so, but it means by strangulation? Behold, you must reason thus: Here the expression: “Shall surely

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be put to death” is used, and there (Lev. 20:10) in the case of the adulterer the expression: “Shall surely be put to death” is used. As there (in Leviticus) it means the death penalty by sword, so here too it refers to death by the sword. (Mekhilta, nezikin, 4 [according to ms. Oxford 151])41

Contrary to the seemingly unanimous stand that the adulterer and the adulteress are to be put to death by strangulation, this midrash clearly assumes that they should be executed by the sword. We should therefore not be surprised to find that later versions of this midrash were emended to make its contents coincide with the accepted norm.42 Nevertheless, the exceptional view is still alluded to in a relatively late midrash—the Tanhuma. In a homily that deals with the seven names of Mount Sinai, the name norev is explained by the phonetic similarity between this word and the word nereve—“sword.” “Mount Horeb” is , because the sword was unsheathed, as stated (in Leviticus. 20:10): The adulterer and the adulteress shall surely be put to death, (in Numbers. 35:16): The murderer shall surely be put to death” (Tanh.uma Bemidbar 1.7).43 The midrash points to two of the Ten Commandments: “You shall not commit adultery” and “You shall not murder,” both given on Mount Sinai. Obviously, according to this midrashic tradition, both crimes are to be punished by the sword, and this is what gave the mountain its name—Horeb. The question now arises whether the absence of this tradition in its primary contexts—that is, in the midrashic discussions of the laws of adultery and in mishnah Sanhedrin—is the result of a natural process whereby the old, rejected opinion descended into oblivion or whether we may suspect that these texts were censored somewhat to conceal it. The fact that traces of this opinion can still be detected in those marginal sources, which are not their

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natural context, supports the latter hypothesis. One senses that whoever was responsible for these emendations looked at the major sources only and neglected other, secondary sources, thus leaving detectable traces of his censorial activity. SUMMARY AND CONCLUSIONS

In this chapter, I have explored one of the fundamental theological differences between the Qumranites and the Rabbis: the origin of the law—divine revelation versus human exegesis. While the Qumran sectarians believed that their reading of the Torah was divinely inspired and that this was the source of its authority, the Rabbis believed that prophecy had ceased and the law and its development were solely dependent on human exegesis. The relationship between these two viewpoints is best explained, I argue, by the developmental model I described in the Introduction. This is evident from the fact that Rabbi Eliezer was still holding a stance similar to that of the scroll. As a result of the dispute concerning the origin and authority of the law, the two groups developed very different procedures for making decisions. But it appears that in reality, both systems failed to operate properly, and in fact, both communities at the end of the day were very much dependent on charismatic and authoritative figures, who by their personalities or positions had the power to determine the law. Thus, in practice, the gap between the two groups was much narrower than was formally declared. The dispute over the origin and authority of the law (divine inspiration versus human exegesis) had consequences not only with regard to the two groups’ varied literary genres, as I showed in the first chapter, or in their legal procedures, as has been dis-

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cussed in this chapter, but also with regard to the content of the law. One of the central characteristics of rabbinic halakhah is the creation of a set of categories that distinguish between different authoritative statuses of the law or between different rulings that apply in different circumstances. Such, for example, is the common differentiation between de-Orayta (laws from the Torah) and de-rabbanan (laws decreed by the Rabbis), or the differentiation between a priori legal demands (lekhatnila), as opposed to postfactum legal status (be-diªavad), or the halakhic requirements for acting under duress (sheªat ha-dnak). All these differential categories are totally missing from Qumranic halakhic terminology. There we find stated only what is required or prohibited.44 The absence of these distinctions from Qumranic halakhic language is not only due to the fact that it represents an early stage in the development of halakhah. Though it is true that legal systems tend to become more complex in the course of their development, these distinctions would not have developed in the religious environment of Qumran, even over a long period of time. Within the revelationary environment of the Yahad, there was no room for such distinctions, because in their own beliefs, everything that is decided, whether in Council of the Many or by the community leaders, is essentially a revelation of the hidden knowledge of the Torah. For this reason, there is a need for extra caution in using the opposition between “biblical law” and “sectarian law.” Although many of the rules found in the scrolls are unique to this group, intended to be followed by its members only, nevertheless, in their own eyes, they were all parts of the same Torah—if not of the revealed surface, then of parts of the hidden knowledge that had

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just now been revealed to them. The unity of the halakhah in sectarian thinking is of a dual aspect: all its details are of the same heavenly origin and have the same binding status. Using such terms as “de-Orayta” and “de-rabbanan” and the like in connection with sectarian law is thus an anachronistic projection of later rabbinic discourse onto the early literature of the scrolls.

three

Scripture versus Tradition

Our discussions in the previous chapters concentrated on the two available bodies of halakhic literature, the scrolls from Qumran and rabbinic literature. We examined the similarities and the differences between them, at the same time taking into consideration the fact that there is a gap of some two hundred years between them. We succeeded, I hope, in detecting and describing a few developmental processes in theological assumptions and literary structures that led through the generations from one body of literature to the other. This chapter is an attempt to delve into the Second Temple period itself. I wish to explore the disputes and mutual agreements between Pharisaic and Sadducee-priestly halakhic systems in order to enable a detailed description and analysis of the changes that took place from that time onward. This inquiry, as I explained in the introduction, is based on several methodological assumptions and involves some serious difficulties. These stem from the fact that we do not have any direct evidence for the 72

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Pharisees’ legal tradition. While the sectarians left us a relatively large textual inheritance of their literary creation, all our knowledge of the Pharisaic halakhah stems from indirect sources. These include the writings of Flavius Josephus and Philo of Alexandria, the references to the Pharisees and their halakhah in the New Testament, rabbinical traditions concerning their forefathers’ halakhah, and of course, what the scrolls themselves testify concerning the sectarians’ rivals. In Antiquities, book 13, Josephus describes one of the fundamental religious differences between the Pharisees and the Sadducees: “The Pharisees had passed on to the people certain regulations handed down by former generations and not recorded in the Laws of Moses, for which reason they are rejected by the Sadducean group, who hold that only those regulations should be considered valid which were written down (in Scripture), and that those which had been handed down by former generations need not be observed” (297). Careful reading of this passage (which has been the subject of much scholarly discussion) reveals that it was the Sadducean group that pushed for change by rejecting the normative halakhic customs and arguing that only the written Torah should be followed, not traditional, handed-down practices. This accords with the Qumranites’ self-perception as portrayed in the scrolls. A central theme in the sectarian writings is the desire to “return to the Torah of Moses” (CD 15:12; 16:1–2, 1QS 5:7; compare 1QS 5:20; 6:15). The claim for returning to the origins, as is very well known to sociologists, is a common strategy within reform movements; that is, they claim that their proposed changes are not changes at all, but rather a genuine attempt to restore the old, lost, true tradition.

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OLD DISPUTES AND SURPRISING AGREEMENTS

What may strengthen the conclusion that the Sadducees were the first to introduce changes in the legal tradition is the existence of some halakhic traditions shared by the two groups, traditions that do not correspond to the plain meaning of Scripture. Joseph Baumgarten has stressed the importance of the agreements between the scrolls and Tannaitic literature for accurate understanding of the history of halakhah.1 The prime example that he and others usually use to illustrate such agreement is the case of “tosefet Shabbat” (addition to the Sabbath).2 This term refers to the rabbinic halakhic tradition that enlarges the time frame of the biblical prohibition on performing any work on the Sabbath and that mandates that all work should cease even before sunset. A similar decree is to be found in the Damascus Document: “Concerning the Sabbath to guard it according to its precept: Let no man do work on the sixth day from the time when the sphere of the sun is distant from the gate by its fullness; for that is what he said: ‘Guard the Sabbath day to make it holy’” (CD 10:14–17). Though there is no doubt that the two corpora share the same tradition—that is, that the Sabbath starts before sunset—I tend not to agree with Joseph Baumgarten and Schiffman, who argue that the sect’s legislators utilized the concept of “tosefet Shabbat,” albeit without the explicit technical term found in rabbinic literature. The very use of the term “tosefet Shabbat” implies that the halakhic status of this prohibition differs from that of the Sabbath itself. This is the reason why some rabbinic authorities even consider it to be “de-rabbanan” (a rabbinic decree), as opposed to the law of the Sabbath itself, which is “de-Orayta” (a law that stems directly from the Torah).3 This is alien to the halakhic mind of

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the scrolls. One of the characteristics of the Qumran halakhah is that it doesn’t distinguish between various sources of the law. As explained in the previous chapter, the sect’s leaders did not consider themselves to be legislators, but rather interpreters only; their sole function was to deliver, via divine inspiration, the correct meaning of Scripture. Thus, they couldn’t make the distinction between “de-Orayta” and “de-rabbanan,” as the Rabbis later did, and it is very unlikely that they understood this law as extra legislation (human or divine), as implied by the rabbinic term “tosefet Shabbat.” It therefore seems more plausible that the law in the Damascus Document demanding that all work be finished before sunset stems from a straightforward reading of the verse quoted: “Keep (shamor) the Sabbath day holy” (Deuteronomy 5:12). The word “shamor,” usually translated as “guard” or “keep,” could also be understood as denoting “be aware lest,” demanding extra caution. Because the exact time at which the Sabbath begins was not clearly determined and difficult to detect, the Qumranites (or it might even be an earlier tradition) concluded that the Torah warns to stop all work before sunset. Later, in the rabbinic age, when normative definitions for day and night were developed, the old tradition of early cessation of work was reinterpreted as “tosefet Shabbat.” 4 In any case, this shared tradition, though not apparent in the Torah, doesn’t deviate from the plain meaning of Scripture and therefore may be a result of parallel developments within different Jewish groups at the time of the Temple and thereafter. More compelling for our current interest is the following example. In Leviticus 19:9–10, we find the obligation to leave some produce from the harvest for the poor:

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When you reap the harvest of your land, you shall not reap all the way to the edges of your field, or gather the gleanings of your harvest. You shall not pick your vineyard bare, or gather the fallen fruit of your vineyard; you shall leave them for the poor and the stranger: I the Lord am your God.

Each of these two verses contains two injunctions. The first verse relates to produce from the field, and the second to produce from the vineyard. As structured, the verses in Leviticus clearly show that “You shall not pick (lo teªolel) your vineyard bare” parallels “you shall not reap (lo tekhale) all the way to the edges of your field,” just as “[you shall not] gather (lo telaket) the fallen fruit of your vineyard” is the vineyard parallel to “[you shall not] gather the gleanings of your harvest in the field.” Interpreted thus, “lo teªolel” derives from the root “ªa.l.l” in the meaning, “to act strictly,” that is, to harvest the grapes completely. The same meaning emerges from the parallel injunction in Deuteronomy 24:21: “When you gather the grapes of your vineyard, do not pick (lo teªolel) it over again; that shall go to the stranger, the fatherless, and the widow.” The Torahs’ emphasis not to pick it “over again” points to a similar meaning, namely, do not pick the vineyard bare.5 The Rabbis, however, interpreted the use of the root “ªa.l.l” in this context differently, as meaning “small,” “nursling,” explicitly concluding on this basis that the Torah commands that any grape cluster that is not fully formed should not be picked, but be left to the needy: “What [produce is subject to the law of the] defective cluster? Any [cluster] which has neither a shoulder [a wide upper part] nor a pendant [a cone-shaped lower part]” (m. Peºah 7:4).6 Precisely because this is not the straightforward, plain reading

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of these verses, it is surprising to find that the scrolls share the same understanding, as well. 4Q270, fragment 3, opens as follows: “[Concerning gleanings (of grain) and the sing]le grapes of the vineyard, the single grapes may be up to ten berries” (for Hebrew, see Appendix, no. 5). Although the practical definition of “ªolelot” (the grapes to be left to the poor) differs in each case—in the mishnah, we find it as any cluster without a shoulder or a pendant, whereas at Qumran, the definition is up to ten berries— nevertheless, linguistically, they bear the same meaning. Both Tannaitic and Qumranic halakhah diverge from the plain meaning of the text and interpret “ªa.l.l” as “small.” While in the above example, the agreement between the two halakhic systems focuses on an explanation of a specific legal detail in the Torah, in the following one, it is an addition to the biblical injunction that the two share. In two places, the Torah forbids eating a dead animal. Exodus 22:30 states, “You shall be men consecrated to me; therefore you shall not eat any flesh of trefah in the field; you shall cast it to the dogs,” and Deuteronomy 14:21 says, “You shall not eat any nevela; you may give it to the alien who is within your towns, that he may eat it, or you may sell it to a foreigner; for you are people holy to the Lord your God.” While the first verse mentions trefah, the second speaks of nevela. What is the difference between these two terms? Most commentators agree that a nevela is an animal that died naturally, while trefah refers to an animal that has been torn by a beast. This understanding is reflected in the following comment of the midrash: Therefore any flesh of trefah in the field: I thus know only about the field. How about the house? Scripture says: “nevela and trefah (Leviticus 17:15),” thus declaring trefah to be like nevela. Just as in the case of nevela it makes no difference whether it

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dies in the house or in the field, so also in the case of trefah, there is no difference whether it is in the house or in the field. Why then it does say: “any flesh of trefah in the field?” Scripture simply speaks of the usual case. (Mekhilta, Kaspa 20 [Lautebach ed. 157]. For Hebrew, see Appendix, no. 1)

The midrash explains the Torah’s use of “in the field” for describing trefah because “Scripture simply speaks of the usual case” (literally: “Scripture relates to the present”). This explanation proves that the homilist understood trefah as an animal torn by a beast, an event likely to happen in the field where the animal is not guarded. Alongside this plain meaning of the word trefah, in the majority of the word’s occurrences in rabbinic literature it is used as a terminus technicus to denote an animal that is terminally ill or injured and not likely to live for long. According to halakhah, such an animal, although slaughtered according to the rules, is not to be eaten—it is a “trefah.” The mishnah tractate Hullin (3:1) lists eighteen different illnesses and defects an animal can suffer from that cause it to be forbidden to be consumed. The mishnah concludes: “This is the rule: If an animal with a similar defect could not continue to live, it is trefah.” The Rabbis were aware of the innovative nature of this meaning of trefah and of the fact that this is actually an expansion of biblical law. This gap between the plain meaning of Scripture and the practical tradition forms the background to the following sugia from the Babylonian Talmud (Hullin, 42a): R. Simeon b. Lakish said: Where do we find in the Torah an allusion to trefah? Where [you ask]? Is it not written: “Ye shall not eat flesh that is torn of beasts [trefah] in the field”? The question was: Where do we find in the Torah the view that a trefah is an animal that cannot continue to live? For from the

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last clause of the mishnah, “This is the rule: If an animal with a similar defect could not continue to live, it is trefah,” it follows that a trefah is an animal that cannot live. Where then do we find it in the Torah? It is written: “These are the living things which ye may eat” (Leviticus 11:2), that is, what can continue to live, you may eat, but what cannot continue to live, you may not eat; hence a trefah is an animal that cannot continue to live. (For Hebrew, see Appendix, no. 2)

The Talmud rightly explains that Resh Lakish is looking for the source of the same rabbinic rule that every animal not likely to live is trefah. The very fact that Resh Lakish asks for a remez (allusion) proves that he knows and recognizes that this is not implied by the plain meaning of Scripture. Scholars usually refer to the creation of legal terminology and general concepts as the classical aspect of the development of the halakhic system from its biblical casuistic origins.7 It is thus surprising to find that, with high probability, the scrolls share with the Rabbis this expansion of the biblical injunction. 4Q251 fragment 12:3–6 states: Let no man eat the meat of an animal vacat An an]imal that has died a natural death or a torn beast that did not live, for the meat ] to s[e]ll to a foreigner and the fat fo[r any use] and to [sl]augter it from it.[ 8 (For Hebrew, see Appendix, no.3)

As noted by the scroll’s editors, this passage is a rephrased combination of the two verses (Exodus 23:30 and Deuteronomy 14:21) quoted above: in line 2, both nevela and trefah are mentioned. One can’t ignore the linguistic similarity between the scroll’s clarification of trefah: “that did not live” (asher lo naya) and the mishnah’s definition of trefah: “[that] could not continue to live” (kol asher

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ein kamohah nayah).9 The editors were right, I would argue, in explaining the scroll’s intended meaning as follows: “An animal that was injured such that it would have died of natural causes had it not been slaughtered.”10 We may therefore conclude that it was an old tradition not mentioned explicitly in the Pentateuch to outlaw the consumption of an animal that had been terminally ill, even though it was slaughtered before it died. These and other surprising agreements between the scrolls and rabbinic literature in relation to exegetical traditions and practical norms attest, to my mind, to the priority of tradition in the early times, even within the priestly halakhic system. It was the Sadducees who made the first move toward preference of the plain meaning of Scripture over tradition, even to the extent of rejecting old norms and replacing them with new ones stemming from their reading of the Torah.11

THE DISPUTE OVER UNCLE-NIECE MARRIAGE: A TEST CASE

What were the halakhic consequences of the Sadducees’ claim to be returning to the written law, and how did the Pharisees meet the challenge put to them? To explore the dynamic of action and response between the two groups, I will focus here on the controversy over uncle-niece marriage as a test case. The sectarian prohibition against the marriage of an uncle with his niece has attracted intense scholarly attention over the years. The famous passage from the Damascus Document reads: “And they marry each one his brother’s daughter or sister’s daughter. But, Moses said: ‘To your mother’s sister you may not draw near. For she is your mother’s near relation.’ Now the precept of incest is written

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from the point of view of males, but the same (law) applies to women, so if a brother’s daughter uncovers the nakedness of a brother of her father, she is (forbidden) a close relationship” (CD 5, 7–11; for Hebrew, see Appendix, no. 4). This short passage attracts scholars for two main reasons. First, this is one of the rare cases where a sectarian author explicitly explains and rationalizes his legal ruling, and there is thus much to learn here about the early stages of the development of midrash halakhah (legal midrash).12 Second, the passage is polemical in nature. The author accuses his opponents—the Pharisees13 —of practicing this illicit union, which he considers to be zenut (fornication), and thus forbidden. We may thus conclude with certainty that the dispute over the legality of uncle-niece marriage took place as early as the first century b.c.e. Some scholars, among them Samuel Krauss and Louis Ginzberg, believed that the Damascus Document’s view represents the traditional norm practiced within Jewish society at this time and that it was the Pharisees who objected to it and introduced the more lenient approach.14 Both quote Solomon Schechter, who already had noted that the Samaritans and Karaites also forbade the marriage of an uncle with his niece and that this also is the law of the Falashas and the Arabs.15 Obviously, however, this proves nothing regarding the norm among Jews in the era of the Second Temple. Indeed, the Falashas’ and the Karaites’ traditions were most probably dependent on the Sadducees’ halakhah, but this is totally irrelevant to the issue at stake here: Who held the original stance and who made the change? The legal traditions of neighboring cultures are equally irrelevant, because sexual taboos and laws of incest are complicated by their very nature and vary in their details from one society to another.

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Ginzberg further argued that some rabbinic sources reveal an inner opposition to uncle-niece marriage, which he takes as an attestation for the antiquity of the prohibition. The following example will clarify his argument. There is a story recorded in both the Jerusalem Talmud (Yevamot 13c) and the Abot de’Rabbi Natan (version A, ch. 16 [Schechter edition, 63]) regarding the mother of Rabbi Eliezer, who urged him to marry his niece, but he refused. Rabbi Eliezer refused, Ginzberg argued, because he held to the old halakhic tradition, the Sadducees’ view that forbade such a marriage. Though it is true that in many cases Rabbi Eliezer holds the halakhic views of the old traditions, regarding this case, Ginzberg was wrong. First, the story goes on and tells us that the young girl begged Eliezer until he softened and agreed to marry her. It is hard to believe that Rabbi Eliezer changed his halakhic view and permitted himself to do what he considered earlier to be against an explicit biblical prohibition only to please his niece (or his mother). Second, and more compelling, Rabbi Eliezer himself explains his resistance by pointing out that she was very young, and he was old.16 Therefore he suggests that she marry someone her age. Only when he realizes she is quite set on the match does he accede to her request and marry her (though, so the Talmud tells us, he didn’t sleep with her until she grew up). Moreover, the very fact that Rabbi Eliezer’s mother begged him to marry the young girl proves that this was the accepted norm she wished her son to follow. A similar picture emerges from another two passages in the Mishnah. The first (Nedarim, 8:7) deals with a man who was pressured to marry his niece, but responded with a vow that she would never derive benefit from him, and by so vowing he made

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any future marriage with her impossible. The other passage states, “And it happened that a man took a vow not to derive benefit from his sister’s daughter, and they brought her to the house of Rabbi Yishmael, and made her beautiful. Rabbi Yishmael said to him: My son! Regarding this one did you take a vow? He said, No! And Rabbi Yishmael released him (permitted him to marry her)” (m. Nedarim, 9:10). These two stories do not testify to a popular hesitation about uncle-niece marriage, as some scholars have suggested. On the contrary; there is no doubt that the sociological background for these stories is a common tendency in favor of this kind of marriage. This is why the families urge the men to marry their nieces. At least in the second story, we are explicitly told that he didn’t want her because she was ugly. Thus, the only way left for them to avoid marrying their nieces is to make these vows. Indeed, we know of not a few individuals from the Second Temple period, some of them from Herod’s family, who married their nieces.17 It is thus more likely, as some other scholars hold, that the Sadducees made the change and declared the hitherto permitted union to be forbidden.18 In the following, I wish establish this view, though I’ll approach the question from a different angle than those that have been articulated before now. The scroll’s reason, “the precept of incest is written from the point of view of males, but the same (law) applies to women,” is not an ad hoc explanation for this specific rule alone, but a general claim concerning the literal nature of Scripture, and thus a prime hermeneutic tool. I have found at least one further example of its use in sectarian halakhic literature. The final verses in the retelling of the biblical episode of Judah and his daughter-in-law Tamar in Jubilees reads:

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Anyone who acts in this way—anyone who lies with his motherin-law—is to be burned in fire so that he burns in it because impurity and contamination have come on them. They are to be burned. Now you order the Israelites that there is to be no impurity among them, for anyone who lies with his daughterin-law or with his mother-in-law has done something that is impure. They are to burn the man who lay with her and the woman. Then he make anger and punishment desist from Israel. (Jubilees, 41:25–26)19

Though the context for this law is the case of Judah and Tamar, which is a case of one who lies with his daughter-in-law, Jubilees juxtaposes this case with the case of one who lies with his mother-in-law and prescribes the penalty of death by burning for both transgressors. Why did the author of Jubilees find it necessary to mention the case of one who lies with his mother-inlaw, as well? The answer is that the latter case is the source for the death penalty by burning for the first case, and this explains Judah’s initial decree to burn Tamar for her alleged fornication. Indeed, while burning is the punishment explicitly decreed by Scripture to one who lies with his mother-in-law (“And if a man take a wife and her mother, it is wickedness: they shall be burnt with fire, both he and they” [Leviticus 20:14]), the punishment for lying with one’s daughter-in-law is not specified. Leviticus 20:12 just says: “they surely shall die the two of them.”20 Apparently, Jubilees used here the same hermeneutical principle mentioned in the Damascus Document: “the precept of incest is written from the point of view of males, but the same (law) applies to women.” Reading the biblical prohibition against taking the mother-inlaw as directed to females means that a woman is not to take (have sex with) her father-in-law, or in other words, it is a prohibi-

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tion against the marriage of a man with his daughter-in-law. Thus, as the first case is punished by burning, so, too, is the second one.21 It is now clear that the principle of “the precept of incest” is not the innovation of the Damascus Document, but an integral component of its hermeneutical tradition, and it already had been used by the author of the legal parts of Jubilees. In light of the above, a new question arises. Why does the Damascus Document attack the Pharisees only on the issue of uncleniece marriages? Assuming that it is consistent in its halakhic principles, at least two additional prohibited marriages should emerge from the application of this same hermeneutical principle to the Levitical list of illicit unions.22 Leviticus 18:10 decrees, “You shall not uncover the nakedness of your son’s daughter, or of your daughter’s daughter, for their nakedness is your own nakedness.” A reading of this verse as addressing women would prohibit a woman from marrying her grandson, the son of either her son or daughter. Or again in other words: A man shouldn’t marry his paternal or maternal grandmother. Leviticus 18:17 reads, “You shall not uncover the nakedness of a woman and her daughter, and you shall not take her son’s daughter or her daughter’s daughter to uncover her nakedness, they are your near kinswomen, it is wickedness.” Once again, reading this verse as directed toward women would forbid the union of a woman and her husband’s grandson; that is, a man shouldn’t marry the wife of his grandfather (either his father’s father or his mother’s father). The most plausible explanation for the Damascus Document’s silence concerning these prohibitions is, so I suggest, that there was indeed no dispute about them. That is to say that all parties of the Jewish society agreed that these relations are forbidden, though not listed in the Bible. This is evident from rabbinic tradition, as well.

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m. Yevamot 2:3–4 distinguishes between two degrees of incest: those that are forbidden by Scripture and those that are “of second degree—the words of the scribes.” These second-degree forms of incest are listed in t. Yevamot. 3, 1: His mother’s mother and his father’s mother, The wife of his father’s father and the wife of his mother’s father, The wife of his mother’s paternal brother and the wife of his father’s maternal brother. And the wife of his grandson (his son’s son or his daughter’s son).

Note that the first case we mentioned above, that is, that a woman shouldn’t marry her grandson, is identical to the first clause in the “second-degree” list—that is, a man shouldn’t marry his grandmother, either from his father’s side or from his mother’s side. Similarly, the second implicit sectarian prohibition, that a woman shouldn’t marry her husband’s grandson, is in fact the same as the second clause in the rabbinic “second-degree” list—a man shouldn’t marry his grandfather’s wife—only it is phrased from a feminine perspective. It is worthwhile mentioning in this context that the last clause in the rabbinic list may also be understood as the result of a feminine reading of yet another biblical prohibition. Scripture forbids intercourse with a woman and her daughter (Leviticus 20:17) or a woman and her mother (Leviticus 20:14). Regarding the first case, the Torah explicitly includes the second generation, as well: not only is the wife’s daughter forbidden, but her granddaughter as well. The Mishnah (Sanhedrin 1:9) concludes that the same applies to the second case, namely, that the wife’s grandmother is forbidden as well. The result of a feminine reading of this last prohibi-

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tion is that a woman shouldn’t marry the grandfather of her husband. That is, a man shouldn’t marry his grandson’s wife, which is exactly the last case on the “second-degree” list. This analysis suggests that we haven’t yet asked the right question. We shouldn’t ask why the Damascus Document attacks the Pharisees concerning uncle-niece marriage and not concerning grandson-grandmother or grandson and step-grandmother unions, simply because there was no dispute over these issues: the Pharisees agreed these cases should be regarded as incest. Rather, we should indeed question the Pharisees’ reluctance to forbid uncle-niece relations, as the Sadducees rightly ordered. To answer this question, we ought to touch upon one fundamental issue concerning the early development of Jewish law: the relationship between tradition and creative exegetical activities. The Tosefta I quoted above attributes the prohibition of “seconddegree incest” to the scribes. This shouldn’t mislead us into believing that the Rabbis had an actual historical tradition of a specific assembling of the scribes, in the course of which a decision was made that resulted in these decrees. When rabbinic sources attribute any halakhic innovation to an earlier generation’s individuals or institutions, it only means that they didn’t know its exact origin. Attributing a law to the scribes, as in this case, or to Joshua ben Nun, or to the prophets or to the elders (zekenim), as in many other cases, serves the Rabbis as a way to determine that it is an old tradition and to confirm its binding authority. At the same time, it also distinguishes such a law from other laws that are from the Torah itself. “The words of the scribes” (divre sofrim) are thus not a historical label, but an authoritative status. My hypothesis for the historical scenario of the dynamic process that took place between the two groups concerning this issue

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is as follows. It was a customary norm within Jewish society of the late Second Temple period to avoid some kinds of marriages of relatives, even though they were not banned by the Torah. Marriages with one’s grandmother or step-grandmother were considered to be incest and were illicit. People didn’t ask themselves why and who said so, they just knew that this was their tradition. Uncle-niece marriages weren’t part of this tradition, I would argue. On the contrary, as the historical precedents mentioned above suggest, this was a rather common practice. The first move toward halakhic change was made by the Sadducees, who, in accordance with their general tendency to reject any regulation that was not written down, as portrayed by Josephus, had to justify these extrabiblical norms by linking them to Scripture. The need to ask for the biblical origin of every common practice was an unavoidable consequence that followed from their new theological claim. This urgency is the background for the creation of the hermeneutical principle, “the precept of incest is written from the point of view of males, but the same (law) applies to women.” It was first used to explain the customary norm of avoiding marriage with one’s grandmother or stepgrandmother. The explanation was that these unions are actually explicitly prohibited by the Torah, because they are the result of the feminine reading of the prohibitions on taking one’s granddaughter or the granddaughter of one’s wife. The second stage in the development of the process was that the exegetical principle turned into a tool for the creation of new laws. The Sadducees’ rationale for introducing the new prohibition against uncle-niece marriage was very simple: if the ban on marrying the grandmother is part of the prohibition against marrying the granddaughter, and if the ban on marrying the wife

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of the grandfather is identical to the biblical prohibition against marrying the grandson’s wife, then the biblical prohibition against marrying one’s aunt should include a ban on marrying one’s niece, as well. The strategy that the Sadducees used to authorize the new exegetical outcome was to integrate it into the biblical text. Thus, we find that the Temple Scroll (66:16–17), while rewriting the Levitical list of incestuous unions, includes the following clause: “A man is not to take his brother’s daughter or his sister’s daughter because it is an abomination.” In 4Q251 (4QHalakha A), the prohibition is mentioned twice: first as directed to the man: “[A man may not marry] the daughter of his brother or the daughter of his s[ister],” and a second time as directed to the woman: “And a woman may not marry [literally, “shall not be”] to the brother of her father or the brother of her mother.”23 Note that by rephrasing the law twice, from masculine and then from feminine perspective, the scroll’s author brings to its completion the process that started with a hermeneutical maneuver. It is not only that the law written from the male point of view should be read as directed to women as well. It is now actually written down in this way. It was exactly this move that the Pharisees opposed. According to Josephus’s report quoted above, the Pharisees, contrary to their rivals, the Sadducees, adhered to their ancestors’ tradition. In accord with their general tendency toward leniency, the Pharisees tried to stay away from adding unnecessary extra prohibitions.24 Therefore, they preferred to explain the extra illicit unions that were commonly avoided in their time as a nonbiblical prohibition, which they attributed to the scribes. By rejecting the Sadducees’ attempt to reconcile the tradition with Scripture they also rejected

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its inescapable consequence—the new prohibition against uncleniece marriage. No wonder the Sadducees called the Pharisees “dorshe nalakot” (looking for smooth things/easy interpretations). I fully agree with Jacob Sussman’s assessment that the stringency of the Sadducees’ halakhah, as opposed to the relatively lenient legal system of the Pharisees, is not merely statistical, but a reflection of a fundamental difference between the two groups’ religious approaches.25 This tendency of the Pharisees to avoid adding unnecessary extra prohibitions can still be detected in rabbinic literature. The following passage from the Tannaitic midrash to Leviticus—Sifra— refers to the opening verse of the incest laws in Leviticus 18:6: “None of you shall come near anyone of his own flesh to uncover nakedness”—this is a general rule (covering all nakedness). “Your father’s nakedness and your mother nakedness you shall not uncover”—This is a particular specification of the matter. When you have a general rule followed by particular specification of the matter, the upshot is this: Covered in the general rule are only the matters made explicit in the particular specification thereof. [This is to reject the following possible halakhic derivation]: Since one is permitted to marry the daughter of the brother of one’s father, and the brother of one’s father is permitted to marry one’s daughter, then I may derive (with the same logical equation) that since one is forbidden to marry the wife of his father’s brother, so, too, it should be forbidden for his father’s brother to marry one’s own wife. And (another example): Since one is permitted to marry the wife of his stepson and his stepson is permitted to marry his wife, then I may derive that since it is forbidden to marry one’s stepson’s daughter, so, too, it should be forbidden for his stepson to marry one’s daughter.

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If then you maintain that view, you have produced rules governing incestuous relations only on the basis of logical comparison and contrast. On that account, Scripture says: “None of you shall come near anyone of his own flesh to uncover nakedness”—this is a general rule (covering all nakedness). “Your father’s nakedness and (that is) your mother nakedness you shall not uncover”— this is a particular specification of the matter. When you have a general rule followed by particular specification of the matter, the upshot is this: Covered in the general rule are only the matters made explicit in the particular specification thereof. (Sifra, Achare Mot, pereq 13; for Hebrew, see Appendix, no. 5)26

The logic of the suggested rejected derivations in this midrash is a subject deserving a separate discussion. The importance of the midrash in the current context is the principle laid down at its end: the Torah prohibits producing new arayot—forbidden sexual unions—based on logic or exegesis. Indeed, the echo of the old dispute can still be heard even in relatively late rabbinic sources. There are some rabbinic sources that especially recommend and praise marrying one’s niece. Saul Lieberman and others propose that the Rabbis’ recommendation of uncle-niece marriage was actually a reaction to the Sadducees’ ban on it.27 The polemical nature of this rabbinic recommendation will emerge clearly when we compare the following baraita with two passages from Damascus Document. “Our Rabbis taught: . . . Concerning him who loves his neighbors, who befriends his relatives, marries his sister’s daughter, and lends a sela to a poor man in the hour of need, Scripture says, Then shalt thou call, and the Lord will answer; then shalt thou cry and He will say, ‘Here I am’” (b. Yevamot 62b). The charity acts listed on this baraita are actually a midrash on

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Isaiah 58:7, which is the verse that comes before the one quoted in the baraita. The verse reads, “It is to share your bread with the hungry, and to take the wretched poor into your home; when you see the naked, to clothe him, and not to ignore your own kin.” To befriend one’s relatives and to marry one’s sister’s daughter are the homilists’ suggestions for the implementation of the prophet’s demand, “Do not ignore your own kin,” just as lending a sela to the poor is his practical translation of the words of the prophet, “share your bread with the hungry, and take the wretched poor into your home.” Whoever fulfills these demands is promised that God will listen to his prayers. What caused the homilist to include the specific instruction to marry the niece in his list? The answer will be revealed by comparing these two passages from the Damascus Document. Damascus Document 6:21–7:1 to love each man his brother as himself, to support the poor, destitute, and proselyte, and to seek each man the peace of his brother, and let no man trespass with regard to his near kin. Stay away from unchastity in accordance with the precept; let each man rebuke his brother in accordance with the ordinance and not keep a grudge from one day to the next.

Damascus Document 8:4–8 because they did not depart from the way of traitors, but rather wallowed in the ways of prostitutes and wicked wealth avenging and bearing grudges each man against his brother, and each hating his brother; and each ignored his near kin. And they drew near for incest and they strove mightily for wealth and profit and each man did what was right in his own eyes.

These two passages are clearly seen to be antithetical. According to the first passage, the things that a person joining the com-

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munity undertakes to do and not to do are precisely the opposite of the sins of the wicked as recounted in the second passage. The initiate undertakes to love his brother as himself, while the wicked hate their brothers; the former undertakes to support the poor, the destitute, and the proselyte, while the traitor wallows in ill-gained wealth and strives for riches, doing what is right in his or her own eyes. The same applies to the duty to rebuke one’s fellow and to refrain from revenge, in the first passage, while the wicked seek revenge and bear grudges. It was Louis Ginzberg who first suggested that the expression “each ignored (va-yitªalmu) the relation of his flesh (besaro)” might be associated with the biblical verse, Isaiah 58:7: “It is to share your bread with the hungry, and to take the wretched poor into your home; when you see the naked, to clothe him, and not to ignore your own kin” (u-mibsarkha lo titªalem). 28 But in fact, there is much more. Just like the rabbinic baraita quoted above, the entire text from the Damascus Document (6:21–7:1), too, is an exposition of the verse in the book of Isaiah. The directive “to love each man his brother as himself, to support the poor, destitute, and proselyte” is presumably an implication of the first part of the verse, “to share your bread with the hungry and to take the wretched poor into your home.” The obligation to reprove transgressors as cited in our text is also associated with the same verse, being another expression of the injunction not to ignore one’s own kin—now in the sense not of ignoring one’s kin’s deeds, but of reproving him or her as required. Moreover, if one examines the whole of the relevant prophecy of Isaiah, the association of the laudable actions in the verse with the teachings of the sect and the deplorable ones with the rebels who “did not depart from the way of traitors” (CD 8:4–8) becomes quite plausible. The prophet first describes the misdeeds of the people of

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Israel who, while observing the ritual of the fast, do not at the same time perform the appropriate deeds of charity and justice: “Is such the fast I desire, a day for men to starve their bodies? Is it bowing the head like a bulrush and lying in sackcloth and ashes? Do you call that a fast, a day when the Lord is favorable?” (v. 5). In the subsequent verses, the prophet goes on to outline the proper path to be taken. Thus, the members of the sect are fulfilling the prophet’s demands, while their opponents persist in their evil ways. Among the duties the novice takes upon himself, the Damascus Document mentions “to seek each man the peace of his brother, (so that) no man trespass with regard to his near kin. Stay away from unchastity in accordance with the precept.” This instruction stands in opposition to the behavior of the traitors, who “each ignored his near kin, and they drew near for incest.” The structure of the list suggests that the instruction that “no man trespass with regard to his near kin” should be understood as the implication of the preceding verse, “to seek each man the peace of his brother,” and that in practical terms, this injunction is meant to encourage marriage with one’s own kin. This is evident from the following restriction, “stay away from unchastity in accordance with the precept.” That is to say, endogamous marriages are praiseworthy as long as they are not incest—“unchastity.”29 A comparison of this passage with the baraita quoted above shows that they are almost identical, except that while the Damascus Document talks generally of “near kin,” the baraita has a very specific recommendation: “(one) who marries the daughter of his sister.” This brings me to the conclusion that although this baraita is relatively late (it appears only in the Babylonian Talmud), it is basically a response to the Damascus Document’s midrash. The

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Rabbis were familiar with the Sadducees’ tradition, used its basic structure, but provocatively planted in it their own opposing view by replacing “near kin” with “your sister’s daughter.” THE CREATION OF MIDRASH AND ITS CONSEQUENCES

My conclusions above are in accordance with the argument that Ephraim E. Urbach made in the 1950s that the midrash as a source for the halakhah originated within priestly Sadducee circles.30 My innovative addition is that it all started with the need to reconcile the tradition with Scripture and that what had begun as a hermeneutical technique turned into a creative tool. More recently, Adiel Schremer has taken this notion one step further. In a 2001 article, he suggested that it was this tendency of the Sadducees to appeal to Scripture for practical religious instructions that challenged the Pharisees’ adherence to tradition and fostered the creation of Tannaitic midrash and the heightened emphasis on Torah study among the sages.31 The Pharisees and their heirs, the Rabbis, had to develop their own hermeneutical techniques in order to anchor their traditions in the text via homiletical treatment. Surprisingly enough (or maybe not so surprisingly), exactly the same development that occurred to the Sadducees took place, only much later, within rabbinic circles as well. Midrash, which initially was meant to play only an exegetical role, to defend the tradition and to link it to Scripture, quickly become a creative tool that resulted in new regulations now ascribed to Scripture. In his above-mentioned article, Schremer uses current sociological terminology to describe the religiosity of the Sadducees and the Pharisees. Following Hayim Soloveitchik’s portrayal of

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today’s ultraorthodox society,32 Schremer depicts the Sadducees as having text-based religiosity, while that of the Pharisees is based on tradition. This, I would agree, is a truthful account for the time of the Temple. If, however, the dynamic that I sketched above is historically accurate, then both the sages’ conceptual thinking and the practical details of their halakhah were substantially influenced by the Sadducee-sectarians. The sages’ efforts to make the biblical text coincide with their halakhic traditions forced them to develop highly innovative exegetical techniques, which in turn influenced and changed halakhah. Yitzhak Gilath has drawn attention to some of these changes. I mention but one here. The biblical injunction that prohibits working on the Sabbath is phrased in general terms only, such as: “you shall not do any manner of work (melakhah)” (Exodus 20:9; 31:14–15; Leviticus 23:3; Deuteronomy 5:13). But what is actually included in this injunction, and what is the definition of “melakhah”—“work”? In a tradition-based community, this is an unnecessary question for a simple reason. Abstention from working on the Sabbath is not Scripture-based, but tradition-based. Thus, “work” includes exactly those activities that are customarily avoided on the Sabbath. It is only the tendency to appeal to the written law that necessitates the creation of an exact definition for “work.” And the Rabbis indeed created such a definition. Mishnah Shabbat lists thirtynine main categories of work (avot melakhot) based on the three major spheres of human activity: food preparation, clothing manufacture, and writing. All other activities are judged to be permitted or prohibited on the Sabbath depending on their similarity or dissimilarity to one of these thirty-nine archetypical creative actions (avot melakhot). Unfortunately, some activities traditionally

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deemed prohibited on the Sabbath do not fall under the rubric of any of the thirty-nine principal categories. One such example is riding a horse. Jubilees 50:12 specifically includes it in its list of prohibited actions on the Sabbath that are punishable by the death penalty. Some other early sources (both rabbinic and nonrabbinic) attest that riding a horse is considered a serious violation of the Sabbath law.33 Nevertheless, riding a horse does not correspond to any of the thirty-nine categories of “work.” The rabbinic solution was to create two distinct categories of commandments: de-Orayta (laws from the Torah) and de-rabbnan (laws decreed by the Rabbis) and to redefine these prohibitions (riding a horse and the like) as de-rabbnan—rabbinic prohibitions.34 The ultimate effect of this development was that the creation of different categories of commandment was not restricted to the exegetical or the theoretical spheres. At the end of the day, it reshaped practices, as well: the status and binding force of a rabbinic decree is not— according to rabbinic tradition itself—the same as one from the Torah. Another interesting development, which I also attribute to the shift from tradition-based to text-based halakhah, concerns the definition of the commonly used pair of terms: “positive commandments” (ªase) and “negative commandments” (lo tªase). The accepted definition of these terms in rabbinic literature ostensibly depends on how they are worded in the Torah: commandments phrased using positive linguistic formulas are considered “positive,” while those phrased negatively are “negative” commandments.35 This clearly text-related definition creates the strange situation in which a commandment negative by definition might require a positive action and vice versa: commandments that are positive according to their halakhic-linguistic definition might

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require abstention from a specific action. Thus, for example, the Pentateuchal commandment not to ignore the lost property of a friend (Deuteronomy 22:3), is a negative commandment, whereas, in practice, it requires the return of the lost object to its owner. Similarly, the biblical commandment to consume the meat of the sacrifices within the limits of a given time (one night, a night and the following day, or in some cases, until the morning of the second day), is phrased in the Torah negatively: “you shall not leave anything of it until the morning” (Exodus 12:10; Leviticus 22:30) and is thus considered as negative commandment, though practically, it demands the active eating of all the meat of the sacrifice before the that time. In spite of the above, careful investigation of the subject reveals that this seemingly accepted definition is relatively new, and developed within the circles of the school of Rabbi Akiva. The school of Rabbi Yishmael, on the other hand, still holds what I consider to be the older view, namely, that positive or negative commandments are defined according to their practical demands.36 Thus, the opening mishnah of tractate Keritot includes the obligation to fast on the Day of Atonement as one of the thirty-six negative commandments that require a sin offering in case of their unintentional transgression. This is because, in practical terms, fasting requires abstention from eating and drinking, in spite of the fact that the commandment is phrased positively in the Torah: “You are to afflict yourselves” (Leviticus 23:32). I find it difficult to offer any other explanation for this shift—from relatively simple, “practical” definitions to more problematic, formal-linguistic definitions—except as part of a growing tendency within rabbinic circles toward text-based halakhah.

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THE CREATION OF MEASUREMENTS: BETWEEN QUMRAN AND THE MISHNAH

Recognizing the different sensibilities with which the two groups approached religion, the text-based Sadducee-priestly approach and the tradition-based Pharisee-rabbinic approach, may serve to solve the following enigma. Qumranic halakhah is very often and correctly portrayed as less developed and less detailed than the established rabbinic system. Thus, for example, Qumran halakhah contains no discussion of issues such as “How much food that had not been tithed . . . does one eat so as to be liable?” (m. Makkot. 3:2) or of the minimum size for a garment to be classified as liable to impurity. It is therefore surprising to find that, in one aspect of religious law, sectarian halakhah preceded rabbinic halakhah in developing binding measurements. Mishnah Peºah opens with the following statement: “These are things that have no [specified] measure, peºah (a small portion of the crop to be left for the poor at the edge of the field at the time of harvesting), first fruits (to be given to the priest), reºayon (the pilgrimage sacrifice brought to the temple), charity (righteous deeds), and study of Torah” [m. Peºah 1:1]). Whereas the mishnah is of the opinion that these biblical obligations have no binding minimal requirement, Qumran halakhah specifies exact quantities for each of the items listed above except for reºayon, which makes no appearance in halakhic literature at Qumran. This overlooking of an explicit Pentateuchal commandment is most probably due to the sectarians’ view of the Temple as currently impure, which prevented them from fulfilling this commandment.37 As for the other four items listed in the mishnah, Peºah, which is one of the gifts that the Torah commands (Leviticus 19:9–10;

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Deuteronomy 24:19–22) to be given to the poor from the field’s produce, is being referred to in the following passage from the Cave 4 fragments of the Damascus Document. [Concerning gleanings (of grain) and the sing]le grapes of the vineyard (ªolelot): the single grapes may be up to ten berries, and all the gleanings (leket) up to a seºah per bet seºah; (however), a (field) which does not yield its seed is not subject to terumah and fallen berries, nor its single grapes up to ten b[erries.] As to the remnants of the olive harvest and the fruit of its produce, if it (the harvest) is intact, its noqef is one out of thirty [and it is subject to tithes]. (4Q270 frg. 3ii; for Hebrew, see Appendix, no. 6)38

Although its details are not entirely clear, the subject of the passage is definitely gifts granted to the poor from harvest produce. The passage mentions three gifts and their measures: “the single grapes may be up to ten berries”; “and all the gleanings up to a seºah per bet seºah”; and “the remnants of the olive harvest . . . one out of thirty.” These three gifts represent the three main Pentateuchal crop types. The present from the vineyard takes the form of “ªolelot”; from the olive produce, one-thirtieth should be left for the poor. As for the present from the field, the passage states, “and all the gleanings (leket) up to a seºah per bet seºah.” This is, in my opinion, the halakhic implementation of the scriptural commandment, “you shall not reap all the way to the edges of your field, or gather the gleanings of your harvest” (Leviticus 19:9), translated by Qumranic halakhah as the obligation to leave the poor one seºah of produce per bet seºah. Interpreted thus, leqet here resembles peºah in rabbinic Halakhah and had a fixed measure.39

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First fruits (bikkurim) also have fixed measure in Qumran halakhah. This is the subject of yet another Damascus Document passage found in the Cave 4 fragments: From the threshing floor he shall measure an ªisaron, from the wi[nepress a hin, one-sixth of an ºe]phah [which is equal a bat a]s [God established], the ºephah and the bat shall both be of one measure: [and he shall offer from it one-] third [of a hin for wine and half a hin for oil and for the fr]uit of the tree. Let no man deviate by offering from the lambs [on]e out of a hundred.40 Let[ no ] man eat [from the fie]ld and from [the vineyard and] from the garden before [the prie]sts stretch forth their hand [to ble]ss first. (4Q271, frg. 2; for Hebrew, see Appendix, no. 7] 41

According to my reading and reconstruction of this passage, the quantity required to be offered by the individual as first fruits is modeled upon the public offering of first fruits. The gift from the threshing floor (that is, from the grain) is modeled upon the omer offering of which Scripture states, “When you enter the land . . . and you reap its harvest, you shall bring the first sheaf (ªomer) of your harvest to the priest” (Leviticus 23:10). As defined in Exodus 16:36, the ªomer is equivalent to an ªisaron: “The ªomer is a tenth of an ºephah.” At Qumran, the measure for private offerings of first fruits then equals that of the public offering. It is well known that three first-fruit festivals were celebrated in the Qumran calendar: for grain, for wine, and for oil. The Temple Scroll mandates that on the Festival of the First Fruits of Wine, four hins shall be brought from all the tribes of Israel, a third of a hin from each tribe (19:14–15), and that on the Festival of the First Fruits of Oil, each

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tribe shall bring half a hin of oil (21:15–16). Because the private offering is equivalent to the public one, the Damascus Document requires this procedure to be followed: for the first fruits of oil and wine, one must measure a hin (one-sixth of an ºephah) from the press,42 then offer, as bikkurim (first fruits), a third of a hin of wine and half of a hin of oil (or other fruit juices) from the initial hin. Thus, as opposed to m. Peºah’s statement that bikkurim “have no [specified] measure,” Qumran halakhah sets an exact measure for this offering. The same picture emerges regarding the last two items in the list: charity and the study of Torah. The Damascus Document (14:12–13) requires each member of the community to donate “a wage of two days every month at least” for charity needs. “From it they shall give for their wounded, and from it they shall support the poor and the destitute, the old man who [bowe]d down, the man who is affli[ct]ed, the one captured by a foreign people, the virgin who has no redeemer, the boy who has no one to look after him, and all the work of the communal body” (ibid). As for the study of Torah, the Rule of the Community requires that “the general membership . . . be diligent together for the third of every night of the year, reading aloud from the Book, interpreting Scripture, and praying together” (1QS 6:7–8). What, then, fostered the early development of exact measurements for the obligations in question? I suggest that the same sectarian religious environment portrayed by Schremer as text-based constitutes the background for this phenomenon. Schremer noted the process of ever-growing halakhic stringency among the Qumran sectarians, which is characteristic of communities whose religiosity is based on texts. The desire “to return to the Law of Moses [according to all he commanded] with all his heart and with

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all his mind” (1QS 5:8–9) necessarily leads to enhanced halakhic stringency, because in every case where there is a seeming gap between the demands of the text and actual practice, the text triumphs and overtakes accepted convention. Moreover, wherever the text is open to various explanations, the most exacting interpretation prevails.43 This explains the picture that emerges from various Qumran texts of members and candidates assailed by constant anxiety scrupulously to fulfill their religious obligations and to avoid forbidden acts. Thus, for example, we find the author of the Thanksgiving Psalms (Hodayot) prays: “I will find the proper reply, prostrating myself and . . . for my rebellion, seeking a spirit of . . . encouraging myself by [Your] h[oly] spirit, clinging to the truth of Your covenant, [serv]ing You in truth and a perfect heart and loving [Your holy name]” (1QHa, 8:14–15). Fear of transgression stimulates the creation of strict norms to the extent of avoiding acts permissible in and of themselves for fear that they will lead to sin. On the other hand, in the case of positive commandments, this tactic is ineffectual. The devout believer experiences difficulty determining whether he or she has fulfilled the generally worded scriptural commandment properly. Against this religious sensibility, we find the Pharisaic type, based, as Josephus testifies, on ancestral tradition. In that context, observance of the commandments flows more naturally, because the members of the society feel relatively greater confidence in their actions, which they perform in the accustomed manner. A member of the Pharisaic community did not ask himself if the commandment he fulfilled met the requirements of written scriptural injunction; his confidence in the correct performance was grounded in the time-honored convention enacted by his parents and teachers and by previous generations.

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The fixing of defined minimum measures for a specific obligation was, then, an action necessary in order to free the sectarian member from that constant worry. By setting aside the correct amount of peºah and first fruits or by donating the equivalent of two days’ monthly wages, he has fulfilled the obligation. To me, it seems most plausible that the mishnah’s statement that these things have no binding measures reflects Pharisaicrabbinic opposition to the Sadducean-sectarian religiosity. As opposed to the text-based religiosity of the Sadducees, the mishnah represents the Pharisaic tradition of religious practice grounded in ancestral tradition, which, as noted, does not require binding normative determinations, but educates the public to fulfill its obligations naturally, by following the example of previous generations. Moreover, by establishing that these things have no specified measure, the mishnah expresses its opposition to the over-legalization of sectarian halakhah. Not much time passed, however, before the rabbinic system also developed obligatory measurements for these items. The very same mishnah, Peºah, has in the preceding paragraph, which I consider to be a later insertion, the following statement: “One should designate as peºah no less than one-sixtieth [of a field’s produce].” One-sixtieth is also the required quantity for first fruits according to a tradition attributed by the Talmud to Rabbi Yishmael.44 Similarly, the Jerusalem Talmud reports as a binding norm for charity a minimum of one one-hundredth, according to one tradition, or one-tenth, according to another.45 Even with regard to the obligation to study the Torah, rabbinic tradition has developed a minimum portion that has to be recited in order to fulfill the mitzva: “Rabbi Ammi said: From the words of Rabbi Jose we learn that even though a man learns but one chapter in

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the morning and one chapter in the evening he has thereby fulfilled the precept of ‘This book of the law shall not depart out of thy mouth’ [Joshua 1:8]. Rabbi Yohanan said in the name of Rabbi Simeon bar Yohai: Even though a man but reads the Shema morning and evening he has thereby fulfilled the precept of ‘[This book of the law] shall not depart’” (b. Menanot 99b). SUMMARY AND CONCLUSIONS

The new tendency of the Sadducees to appeal to Scripture for practical guidance caused a cultural and religious chain reaction. At first, old traditions were explained in accordance with their biblical origins. In the second stage, the exegetical techniques used in these explanations turned into creative tools, and new norms that resulted from the reading of Scripture were introduced, authorized by rewriting the Pentateuch in accordance with them. At least at first, the Pharisees resisted this tendency and stuck to the old traditions. The challenges put to them by the Sadducees forced them to develop a highly innovative midrashic system in order to defend their traditional regulations and to make them coincide with Scripture.46 At this point, what had happened to the Sadducees in the past happened to the Rabbis as well, and midrash gradually became more and more creative, thus in turn influencing halakhah greatly. We may conclude that in this respect, the Sadducean approach eventually won out over Pharisaic tradition.47 A similar development took place with regard to the creation of binding amounts for the fulfillment of various biblical commandments. The necessity for such clear norms is a typical product of the text-based type of religiosity and was first developed within the priestly Qumran community. While in the early stages of the

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development of the Mishnah the Rabbis still resisted this excessive legality and declared that “these things don’t have fixed measurements,” in the course of time and with the ever-growing tendency of the rabbinic movement itself toward text-based religious practices, rabbinic halakhah, too, developed a whole set of binding measurements for the fulfillment of these commandments.

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“The Foundation of the Creation” and the “Laws Written on the Heavenly Tablets”

In his frequently quoted and much-debated article, “Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law,” Daniel R. Schwartz raises an interesting and important question. Schwartz challenges the common use of the term “priestly halakhah” to portray the non-Pharisaic legal system exhibited by the Dead Sea Scrolls and by the Sadducean halakhah mentioned in rabbinic literature. He rightly asks: “What do we mean by this term and what makes this halakhah priestly?”1 Schwartz’s explanation is actually the most developed attempt to date to characterize sectarian halakhah. He portrays priestly halakhah as realistic, as opposed to Pharisaic halakhah, which is nominalistic. As defined by Yochanan Silman (upon whom Schwartz based his argument) a realistic conception of halakhah views the commandments as “guidelines, based in independently existing situations, which man, due to the grace of the wisdomgiving God, may introduce among his considerations by accepting the yoke of the commandments.” Put simply, the halakhah 107

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form a legal system that is bound to nature and reality. A nominalistic approach, on the other hand, views the commandments as “orders resultant from the will of the commanding God.”2 According to this worldview, it is the Torah that creates the legal status of objects and activities. Halakah itself decides what is permitted and what is prohibited, what is pure and what causes impurity. Schwartz was criticized, partly justifiably, by others.3 Two main arguments have been raised against his explanation. The first is that within rabbinic literature itself, there are not a few statements grounded in the classic realistic view, and the second is that defining any stance as realistic or nominalistic is by and large subjective. Corpse impurity, for example, may be seen as a natural result of death, and thus a reflection of reality for some people. It can also be seen, in accord with the nominalistic view, as representing God’s arbitrary decree and as not bound to any realistic circumstances. It may well be that some of the halakhic examples Schwartz cites in demonstration of the rabbinic nominalistic view were in the Rabbis’ own eyes a simple result of reality.4 Nevertheless, as far as Qumranic halakhah is concerned, there is no doubt in my mind that Schwartz is correct. This is because its realistic worldview finds overt statement in the scrolls and is not simply deduced from its rulings. Two explicit comments appear in the Damascus Document regarding Creation as the basis for the law. The author of the Damascus Document justifies his objection to polygamy as practiced by the Pharisees because “the foundation of the Creation is ‘male and female he created them’ (Genesis 1:27)” (CD 4:18–19), and he rules that “all species of locusts [should not be eaten unless] put into fire or water while alive, for this is the precept of their creation” (CD 12:14–15). Moreover, as

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will be demonstrated below, I find the realistic approach most useful in that it clarifies and explains not a few halakhic issues in the scrolls. These explanations in their turn reestablish and strengthen the theory as a whole. However, whereas Schwartz characterized “realism” simply as a legal system based on nature or reality, I suggest that the sect’s own understanding of the law was somewhat more complicated. It is not just that the law supposedly is based on reality and nature, but rather, that reality is supposed to reflect the law because God, by his will, created the world according to the law. Seen thus, it quickly becomes apparent that the Damascus Document’s principle of the “foundation of the Creation” is very similar to or even identical with the book of Jubilee’s idea of “laws written on the heavenly tablets.” In no less than nineteen instances, Jubilees notes that various laws implemented in the patriarchal period were written on the heavenly tablets. Two formulas appear in Jubilees. Sometimes we find after the description of an act, “for so it is written on the heavenly tablets.” On other occasions, the concluding comment of the passage is, “it was therefore (ªal ken) written on the heavenly tablets.” As Cana Werman notes, all the events or actions described by the latter phrase are not random human decisions, but rather an outcome of divine intervention in the world, implying that God administers his world in a just and proper manner, a manner that was engraved on the heavenly tablets.5 That is to say, in both cases, the laws written on the heavenly tablets preceded Creation, or, in other words, the laws are the foundations of Creation. Recently, Menachem Kister clarified this concept’s literary background.6 Genesis 32 relates that just before Jacob crossed the river Jabok, he struggled with an angel and was injured in his hip

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joint. The biblical redactor then added a comment, which opens with the same words—ªal ken, “therefore”—as the phrase in Jubilees, “Therefore it was written on the heavenly tablets”: “Therefore the children of Israel to this day do not eat the thigh muscle that is on the socket of the hip” (Genesis 32:33). Though in its narrative context this is just a remark on the present custom of the children of Israel, as part of the Torah, the verse invites the reader to read it as teaching halakhah. Indeed, some ancient commentators (such as the Septuagint, on the one hand, and some of the Rabbis, on the other) 7 understood it as an actual commandment to the sons of Israel.8 4Q158 even rewrites the verse as a commandment directed to Jacob himself: “And he said to him: You shall not e[at . . . ] above the two joints of the thigh until the [present day].”9 According to this reading, the biblical phrase “ªal ken” (“therefore”) doesn’t mean that the law was created as a result of the event, in order to commemorate it, but that the event took place in accord with the already existing law in order to serve as the right opportunity for its manifestation.10 In other words, following their wrestling incident, the angel commanded Jacob to do what had already been written on the heavenly tablets since before the Creation. And according to my understanding, we should add that this is because it is inscribed in the foundation of the Creation that the thigh muscle ( gid ha-nashe) is uneatable for humans.

MARRIAGE LAWS AND THEIR FOUNDATION IN THE CREATION

Genesis 2:24 is yet another verse phrased in the same manner: “Therefore (ªal ken) a man leaves his father and his mother and

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clings to his wife, and they become one flesh.” In light of the above discussion, we may now translate this verse in a Jubileeslike manner as: “For so it is written on the heavenly tablets, that a man leaves his father and his mother and clings to his wife, and they become one flesh.” Read in this fashion, the verse bears a meaning very similar to the above-cited statement from the Damascus Document: “the foundation of the Creation is ‘male and female he created them’” (Gen. 1:27). Indeed, Genesis 2:24 plays a significant role in the sectarian understanding of the institution of marriage. In a wisdom composition from Qumran (4Q416 [instructionb]),11 we find the following advice: “If you take a wife in your poverty, take molade-ha (her horoscope) [ . . . ] from the mystery of what is to come.12 When you join together with the helper of your flesh (wife) [as it is said ‘Therefore a man leaves] his father [and] his mother and clin[gs to his wife, and they become one flesh.’]” The prospective groom is advised to look at his potential bride’s horoscope before marrying her to make sure she fits him. Similar advice is given in a passage from Damascus Document (4Q271, 3) to the bride’s father: “Moreover, he should not give her to one who is not destined for her, for that is (a violation of the prohibition of ) kilºayim [like] an ox and a donkey together.” What we have here is a clear reference to the sect’s belief in predestination, which includes also the selection of the appropriate spouse.13 The importance of the couple’s compatibility is stressed in 4Q416 by quoting Genesis 2:24. The function of the verse here should be understood in light of its biblical context. This is the concluding remark to the version of the creation of Adam and Eve in chapter 2. According to it, Eve was created from Adam’s rib in order to save him from his loneliness. Our

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verse is presented as a conclusion that stems from Adam’s statement when Eve was first brought to him: “This at last is bone of my bones and flesh of my flesh; she will called Woman because she was taken out of Man” (Genesis 2:23). The author of this sapiental work believed that each and every man and woman was created according to this Genesis paradigm. Every marriage in fact rejoins the parts of an original union. Thus, there is only one match that fits, and any other is like “kilºayim.” This “realistic” reading of the two verses (Genesis 1:27 and 2:24) gives rise to what I consider to be a fundamental principle of Qumranic matrimonial law. The basic concept is that marriage is constituted not by a contract or any other legal agreement, but by the physical union between a man and a woman, as the verse says: “Therefore a man leaves his father and his mother and clings to his wife, and they become one flesh.”14 Such understanding of marriage bears several halakhic consequences. First, marriage does not require the couple’s intent. The marital bond between them is created regardless of whether or not this was their intention. Second, as a result of the physical aspect of the union between the man and his wife, the marital tie is unbreakable and can’t be untied as long as both are alive. This second point is exactly what the Damascus Document’s author argues against his opponents in one of its best-known passages. “(They) are caught by two (snares). By unchastity, (namely,) taking two wives in their lives, while the foundation of the creation is ‘male and female he created them’” (CD 4:20). Most scholars agree that the accusation “taking two wives in their lives” includes not only a rejection of polygamy, but also of remarriage after divorce (that is, “in their lives”).15 This raises a problem. The claim that “the foundation of the

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Creation is ‘male and female he created them’” explains the prohibition against bigamy, but from what source do we know of the prohibition against remarriage? The answer, I would suggest, is that the foundation of the Creation also is that “a man (should) leave his father and his mother and clings to his wife,” and therefore, this union can’t be untied as long as the two are alive. The same law later appears in the New Testament in the name of Jesus: “But from the beginning of Creation, ‘God made them male and female.’ ‘For this reason a man shall leave his father and mother and be joined to his wife and the two shall become one flesh.’ So they are no longer two, but one flesh. What therefore God has joined together, let no man put asunder” (Mark 10:6– 9).16 Note that here, too, the verse quoted as the origin of the law is Genesis 2:24, and it is introduced with an expression very similar to what is used in the Damascus Document: “from the beginning of Creation.” With this comprehension at our disposal, not a few halakhic details in the Dead Sea Scrolls can be better understood. One, for example, is the Temple Scroll’s handling of the law concerning the seduction or rape of an unbetrothed girl, regarding whom the Torah mandates in Exodus 22 and Deuteronomy 22, respectively, that the man who seduces or rapes her should compensate her father monetarily and “He is not allowed to send her away, all his days” (Deuteronomy 22:29). The Temple Scroll typically combines the two biblical passages into one textual unit, but ignores the biblical decree that the father may refuse to give her to the seducer as a wife (Exodus 22:16). The explanation is that according to sectarian law, as I argue above, by his cohabiting with the girl, she has already become the seducer’s wife, and this union cannot be dissolved.

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Above all, this halakhic principle regarding the physical basis of marriage enables the sectarians to provide an explanation for a well-known problematic law in the Torah: the death penalty for the accused bride in case her husband’s accusation that she was not a virgin is verified, discussed in Deuteronomy 22:13–20. The biblical passage states: If a man marries a woman and cohabits with her, and then he takes an aversion to her and makes up charges against her and defames her, saying, “I married this woman, but when I approached her, I found that she was not a virgin.” In such a case, the girl’s father and mother shall produce the evidence of the girl’s virginity before the elders of the town at the gate. And the girl’s father shall say to the elders, “I gave this man my daughter to wife, but he has taken an aversion to her; so he has made up charges saying ‘I did not find your daughter a virgin.’ But here is the evidence of my daughter’s virginity!” And they shall spread out the cloth before the elders of the town. The elders of that town shall then take the man and flog him, and they shall fine him a hundred [shekels of] silver and give it to the girl’s father; for the man has defamed a virgin in Israel. Moreover, she shall remain his wife; he shall never have the right to divorce her. But if the charge proves true, the girl was found not to have been a virgin, then the girl shall be brought out to the entrance of her father’s house, and the men of her town shall stone her to death; for she did a shameful thing in Israel, committing fornication while under her father’s authority. Thus you will sweep away evil from your midst.

Classical and modern commentators alike find this biblical pericope difficult for two reasons. The first is the nature of the proof brought against the girl. According to the text’s plain meaning, the parental response to the husband’s claim, “I did not find

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your daughter a virgin” (v.14), is to display the sheet from the wedding night: “And they shall spread out the cloth before the elders of the town,” thereby proving that this was their daughter’s initial sexual encounter. Accordingly, if this evidence is not produced, the charge is then considered valid. This conclusion, it should be admitted, is very disturbing. While the stained garment could be used as evidence that this was the girl’s first intercourse, on the other hand, the absence of such stains would not necessarily mean that she had previously engaged in sexual relations; bleeding does not always occur upon first intercourse. More problematic is the punishment of death by stoning for a girl who loses her virginity in her parental home, because this doesn’t correspond to the general tone of the Torah. Nowhere else in the Pentateuch is this considered to be a crime punishable by death.17 4Q159 suggests that the sect had developed an interesting way to resolve the case. Fragments 2 through 4 state:18 If a man defames an Israelite virgin, if he speaks out on [the day]19 he marries her, trustworthy [women] 20 shall examine her/ it, and if he has not lied about her, she shall be executed. But if he testified against her false[ly], he shall be fined two minas [ . . . ] and he may [not] divorce (her) for his entire life.” (For Hebrew, see Appendix, no. 1)

The passage refers to a physical examination of the accused young woman by trustworthy women. Evidently, this physical examination would enable these women to determine (or they were believed to be able to determine) the truth or falsity of the husband’s accusation.21 This was undoubtedly a more trustworthy method than examination of a bloodstained garment. While the bloodstains

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on the garment could only back the young woman’s counterclaim that she was deflowered during this initial intercourse with her husband, the absence of such stains by no means would constitute proof of prior sexual relations on her part. On the other hand, these women’s expertise actually was supposed to enable them to determine whether the present sexual act was truly the girl’s first or whether she had previously had intercourse.22 But this does not solve the second difficulty. The above-cited fragment explicitly states: “And if he has not lied about her, she shall be executed.” Does the loss of virginity warrant execution? In line with my proposed understanding of sectarian marital law, the reason for this punishment is now clear: the young woman is stoned not in consequence of the initial sexual contact during which she lost her virginity, but as a result of the present intercourse with her husband. In the eyes of sectarian halakhah, this girl is already married to the first man with whom she had sexual relations. She is therefore now treated as an adulteress. Her husband, if his accusation of premarital unchastity is shown to have been justified, has inadvertently had adulterous relations with a married woman. Although the unintentional nature of his offence exempts him from punishment, his wife is liable to stoning, as is every betrothed woman who has adulterous sexual intercourse. To sum up my argument to this point, I would say that the laws of marriage are a classic example of the Qumranic conception of “laws written on the heavenly tablets” that are reflected in nature and reality. It was written on the heavenly tablets that “a man leaves his father and his mother and clings to his wife, and they become one flesh.” Therefore, their physical union creates the unbreakable marital bond between them.

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DIVORCE AND REMARRIAGE AFTER A SPOUSE’S DEATH

In light of the above, we would expect Qumranic halakhah to produce a total ban on divorce (as seems to be the case in the above quoted verse from the New Testament: “what God has joined together, let no man put asunder”)23 and also to ban remarriage even after the former spouse’s death. After all, if marriage is based on the foundation of the Creation, and man and woman are considered one flesh, it seems that marriage is a once-in-a-lifetime event. Some scholars indeed are of the opinion that Qumranic law prohibited second marriages of all kinds, based on the word “benayehem”—“in their lifetimes,” used by the Damascus Document.24 But this is not the case, as is evident from several sources. Though not a single law concerning the procedure of divorce has been found in the scrolls, the institution of divorce is nevertheless mentioned a few times in this literature. Thus, the Temple Scroll 54:4, while rewriting the Pentateuchal law of women’s vows, states: “And every vow of a widow or divorcee, everything which she binds herself formally will stand upon her, as everything which issues from her mouth.” More compelling is the following practical order of Damascus Document 13:15–17: “Let no man do anything involving buying and selling without informing the Examiner in the camp. He shall do (it) [ . . . ] and so for one divorcing.” Though the exact meaning of this decree is not clear due to the fragmentary condition of the text, it is most plausible that divorces did take place in the community and like many other activities were monitored by the Examiner. The conclusion is, thus, that the Qumranites did allow divorce, which in its practical meaning was more like

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official separation, but didn’t permit remarrying as long as the former spouse was still alive. That remarriage after death was permitted is evident from various places in the scrolls. The Temple Scroll 57:18–19 explicitly permits the king to remarry when his first wife dies, and 4Q271,3 (one of the Cave 4 fragments of the Damascus Document) states that a man should not take a widow “who has intercourse after she was widowed.” This means that widowhood per se is not an obstacle to marriage. How then, does the permission for remarriage after death fit into the overall concept of marriage in the scrolls as portrayed above? In the following, I hope to meet this challenge and to offer an answer to this seeming contradiction. The short biblical episode of Reuben’s sin with Bilhah is the subject of a long, detailed recasting in Jubilees 33. In verse 10, the author quotes the decree written on the heavenly tablets: “That a man is not to lie with his father’s wife, and that he is not to uncover his father’s robe because it is impure. They are certainly to die together—the man who lies with his father’s wife and the woman, too, because they have done something impure on the Earth.” This decree is based on two Pentateuchal verses: Leviticus 18:8 and Leviticus 20:11. Later, Jubilees rephrases Deuteronomy 27:20, changing the ratification of the prohibition against relations with one’s father’s wife by the people to ratification by “all of the Lord’s holy ones.” As Menachem Kister notes, this change is one of the strategies Jubilee’s author uses to antedate the law to the Creation, because it was already written on the heavenly tablets.25 Our main interest however, lies in Jubilee’s description of Reuben’s sin: “And let them not say, ‘Reuben was allowed to live and (have) forgiveness after he had lain with his father’s concubine

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and while her husband, his father Jacob, was alive. For the ordinance, the judgment, and the law had not been revealed till then.” Reuben was guilty because he lay with his father’s concubine while her husband, Jacob, Reuben’s father, was still alive. The unavoidable conclusion is that according to Jubilees’ understanding, the prohibition against lying with one’s father’s wife was restricted to the father’s lifetime, but after his death, the prohibition (or at least the death penalty) did not apply.26 This is not the opinion of the Rabbis. The Mishnah (Sanhedrin 7:4) explicitly states: “One who has intercourse with his father’s wife is liable (because she is his father’s wife and because she is a married woman), whether this is in his father’s lifetime, or after his death, whether she is only betrothed or already married [to the father].”27 Admittedly, Scripture itself is ambiguous on this matter. Commentators, traditional and modern alike, disagree as to whether the list of illicit sexual practices in Leviticus 18 and 20 prohibits marriage or merely prohibits having sexual relations with these women. On the one hand, the frequent use of the term “to uncover nakedness” points to sexual intercourse. If this is the case, we may conclude (with Jubilees) that in those cases where women are prohibited because they are married to one’s relative, the prohibition is valid only during these marriages but ceased to exist after the husbands’ deaths. On the other hand, if marriage is the subject here, than we may conclude (with the Mishnah) that the prohibition against marrying one’s relative’s wife is valid even after his death, otherwise what is the point of the prohibition, given the fact that they are anyway forbidden because they are married women?28 In at least one case, the Rabbis themselves disputed the issue. Leviticus 20:14 states: “And if a man takes a wife and her mother,

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it is wickedness; both he and they shall be put to the fire, that there be no wickedness among you.” That the punishment is to be meted out to both the woman and her mother troubled the Rabbis. After all, the first woman married her husband lawfully. This is the background for the following dispute between Rabbi Akiva and Rabbi Yishmael in the Sifra: “Both he and they shall be put to the fire.” He and one of them, these are the words of Rabbi Akiva. Rabbi Yishmael says: As long as they are two. That is to say, if he was married to a woman and had sexual relations with her daughter he is liable, and if he was married to the daughter and had sexual relations with her mother, he is liable. (Sifra Kedoshim pereq 10, according to ms. Vatican 66,29ed. Nuesner, 147; for Hebrew, see Appendix, no. 2)

The plain meaning of Rabbi Yishmael’s explanatory statement, “As long as they are two,” is that the death penalty applies only in a case where both women are alive. But if the first woman died, and the husband then married her mother or daughter, even if it is not permitted, it is at least not a capital crime. Going back to Jubilees, the idea that the prohibition against having sexual relations with the wife of a relative applies only when her husband is alive, but not after his death, is actually the obverse of the sectarian understanding of marriage as explained above. If what creates a marriage is the physical union between the couple, which connection cannot be dissolved as long as both are alive, the opposite is also true, namely, that when one of them dies, all ties are severed, and no connection remains. According to the Qumranic conception of marriage, after her husband’s death, Bilhah is not “the late Jacob’s wife,” but an ordinary single woman, free to remarry. If Jacob had not been alive when Reuben sinned with Bil-

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hah, Reuben would not have been liable to the death penalty, because Bilhah would not have been considered Jacob’s wife and therefore Reuben’s father’s wife. The restriction of the ban on marrying the wife of a relative to his lifetime has exegetical advantages, as well. Leviticus 18:16 rules: “Do not uncover the nakedness of your brother’s wife: it is the nakedness of your brother.” The punishment for transgressing this prohibition is specified in Leviticus 20:21: “And if a man takes the wife of his brother, it is indecency. It is the nakedness of his brother that he has uncovered; they shall remain childless.” As is well known, this law apparently contradicts the law of the levirate marriage (Deuteronomy 25:5–9). The rabbinic solution to the problem is to treat the two laws as a rule and its exception. The Levitical law prohibiting marriage between a man and his sister-in-law is the rule, to which there is one exception: in a case in which a paternal brother dies childless. In that case, one of the remaining brothers should marry the widow, so that “the first son that she bears shall be accounted to the dead brother that his name may not be blotted out in Israel” (v. 6). The sense of contradiction is reflected in a passage from the Mekhilta of Rabbi Yishmael. The midrash lists a series of seemingly contradictory pairs of verses in the Torah. The first pair is “zakhor ve-shamor” (“remember and keep,”) the opening words of the fifth commandment concerning the Sabbath in Exodus and Deuteronomy, respectively. These pairs of verses were all, according to the Midrash, spoken together in one utterance. The Midrash lists our two verses, as well: “‘Do not uncover the nakedness of your brother’s wife’ and ‘her husband’s brother shall go unto her’ were both spoken in one utterance” (Mekhilta DeRabbi Ishmael, bachodesh, 7, ed. Lauterbach, vol 2: 252).30

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If, as I just suggested, the Qumranic view is that all the prohibitions concerning the wives of a relative are restricted to the relative’s lifetime, then the entire problem disappears. A man may take his late brother’s widow to be his wife. What the Deuteronomic passage on levirate marriage adds is that in a case in which the dead brother did not have children, he is obligated to do so. Careful comparison between another passage in the Sifra and a law in the Temple Scroll supports my argument. The homily concerns the verse in Leviticus 20:21: “And if a man takes the wife of his brother, it is like a menstruating woman (nidah): It is the nakedness of his brother that he has uncovered; they shall remain childless.” The midrash first identifies the brother in question—“And if a man takes his brother’s wife”—as his paternal brother. It then asks, “Perhaps Scripture speaks of the wife of his brother even on his mother’s side?” going on to compare the case to that of a menstruating woman. Scripture says: “It is nidah” (a menstruating woman): to teach that it refers to a sister-in-law who is like a “nidah” (menstruating woman). As a “nidah” is sometimes prohibited and sometimes permitted, so, too, is the sister-in-law. And who is the sister-in-law who is prohibited and permitted? It is the wife of his brother from his father’s side; when he had children with her she is prohibited; but if he died childless, she is permitted. (Sifra, Kedoshim, perek 12, ed. Neusner, 156; for Hebrew, see Appendix, 1 no. 2)

Surprisingly, the outcome of this homily is that the punishment “they remain childless” is limited to the case in which a man took the wife of his paternal, but not of his maternal brother (though it should be stressed that the prohibition itself applies in both cases, as is evident from the previous passage in the mi-

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drash). Clearly, what forces this conclusion is the assumption that this law and the law of levirate marriage in Deuteronomy 25 are actually one law. Because the obligation to marry his brother’s widow in a case in which they had no children is limited to his half-brother on his father’s side, so, too, the punishment is restricted in a case in which the brother had children. The punishment applies only if he took the wife of his brother on his father’s side, but not to his brother’s wife on his mother’s side. This contrasts sharply with what we find in the Temple Scroll. The list of the forbidden unions in column 66 states: “A man is not to take his brother’s wife or uncover the member of his brother, of his father’s or mother’s son, because it is wanton (nidah).” That this law is a rephrasing of our verse is evident from the use of “nidah”; the author also makes it clear that the law applies equally to brothers from the paternal and maternal sides. The author of the Temple Scroll compares the prohibition against taking one’s sister-inlaw to the prohibition against taking one’s sister. In the latter case, it is explicitly written in the Torah that sisters from both the paternal and the maternal sides are forbidden: “And if a man takes his sister, the daughter of either his father or his mother, so that he sees her nakedness, and she sees his nakedness; it is a disgrace; and they shall be excommunicated in the sight of their kinsfolk; he has uncovered his sister’s nakedness; he shall bear his guilt” (Leviticus 20:17). As explained above, what allows this comparison is the sectarian halakhah’s stance that there is no direct link between the prohibition against taking one’s sister-in-law and levirate marriage. The first applies only in the brother’s lifetime, though equally to his father’s son or his mother’s son. Levirate marriage, on the other hand, is a positive commandment to marry one’s paternal brother’s widow if he died childless.

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What emerges from the above discussion is that the Qumranic conception of marriage constituted by the physical union between man and woman has twofold legal consequences. On the one hand, this tie cannot be dissolved in the partners’ lifetimes. On the other hand, with the death of one of them, all former ties between them are dissolved. Therefore the widow or widower is permitted to remarry, even one of his or her late spouse’s relatives. MARRIAGE LAW AND THE RESURRECTION

Legal matters are often closely linked to theological beliefs. One well-attested theological dispute between the Sadducees and the Pharisees concerns the belief in the bodily resurrection of the dead at the End of Days. Thus, the Mishnah rules, “One who says: ‘Resurrection of the dead is not from the Torah,’ and ‘the Torah is not from Heaven,’ does not have a portion in the world to come” (m. Sanhedrin 10:1). In all probability, this refers to the Sadducees, who rejected both doctrines: the Oral Torah (that is, the authoritative status of tradition as explained in the previous chapter) and the resurrection of the dead. The following episode regarding a Sadducee query to Jesus is recorded similarly in Matthew (22), Mark (12), and Luke (20). “The same day some Sadducees, who maintain that there is no resurrection, came to him and asked: Teacher, Moses said, that if a man dies childless, his brother shall marry the widow and raise up children for his brother.” They go on to cite a case involving seven brothers. Each one having died childless, each married the first one’s wife in turn. Finally, the woman died, as well. Their question to Jesus is “whose wife will she be in the resurrection, since they all had married her?”

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A full discussion of Jesus’ answer is beyond our current interest. Rather, I would like to focus on the Sadducees’ question. Why did the Sadducees choose this seemingly ridiculous case to pose to Jesus? Obviously, the issue of resurrection is a serious one, but did the Sadducees actually expect Jesus to answer them, or was their only intention to tease him? The latter is the opinion of most interpreters. William Davis and Dale Allison, for example, describe the Sadducees’ question as insincere and malicious.31 But is it possible that they were serious? To decide this, we must inquire why the Sadducees used the issue of levirate marriage. In essence, the question, “Whose wife shall she be in the resurrection?” is equally disturbing in any case of second marriage by a widow. In light of our previous discussion, the seriousness of the Sadducees’ question becomes clear. Levirate marriage is a case of second marriage mandated by the Torah—not only permitted, but obligatory. Now, because marriage law in Sadducean halakhah is conceptually based on the physical union between a man and a woman, and therefore the only justification for permitting remarriage after one of them dies is that death is final and irreversible, then acceptance of the doctrine of resurrection forms a concrete threat to the system as a whole: if death is not final, how, then, can we explain the law of levirate marriage? It is as if the Torah condemns the levirate couple to a life of sinful adultery. In his account of the three Jewish philosophies of his time, the Pharisees, the Sadducees, and the Essenes, Josephus relates other issues, as well, to the groups’ opposing beliefs with regard to the afterlife and the resurrection at the eschatological End of Days. In Antiquities of the Jews 18:11–22, Josephus writes that the Pharisees believe that “the souls have immortal rigor in them, and that under the earth there will be rewards or punishments, according as

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they have lived virtuously or viciously in this life and the latter are to be detained in an everlasting prison, but that the former shall have power to revive and live again.” The Sadducees, on the other hand, he says, believe that “the soul dies with the body.” As for the Essenes, Josephus continues, they “declare that souls are immortal” (as the Pharisees believe), but say nothing about their stand with regard to resurrection. Similarly, in The Jewish War 2:154, he writes that “it is a firm belief among them [the Essenes] that although bodies are corruptible, and their matter unstable, souls are immortal and endure forever.” It appears, then, that the Essenes agreed with the Pharisees that souls are immortal, but disagreed with them with regard to the resurrection, a matter on which they embraced the Sadducees’ view denying it. However, according to Hippolytus, whose account of the Esssenes is very similar to that of Josephus, their beliefs did include belief in resurrection, the Last Judgment, and the final conflagration of the universe.32 Scholars dispute over the credibility to assign to one of these accounts.33 In the center of the debate are the findings from the scrolls and their evaluation. Few passages in the scrolls may be understood as an expression of the belief in the resurrection. Scholars who consider these scrolls as sectarian, on the one hand, and hold the “Essenes hypothesis,” which identifies the scrolls’ group with the Essenes, on the other, tend to accept Hippolytus’s account and claim, accordingly, that the Essenes believed in resurrection as reflected in these references in the scrolls. Most scholars, however, prefer Josephus’s account. They note that the scrolls that include expression of belief in resurrection lack any sectarian terminology or any expressions of the sectarian worldview. Accordingly, they

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conclude that these scrolls are nonsectarian scrolls that originated outside the Qumran community. My conclusion above, which establishes a linkage between matrimonial sectarian law and the Sadducees’ denial of the theological concept of resurrection, has consequences for this debate. The apparent interrelation between the two supports the majority scholarly view that the Qumran Essenes shared with the Sadducees an objection to the Pharisaic belief in bodily resurrection. SUMMARY AND CONCLUSIONS

“Realism” is no doubt a dominant characteristic of priestly halakhah. As has been shown in this chapter, assuming realistic perception at the background of the halakhah at Qumran is a highly productive postulation. Not a few halakhic rulings in the Qumran legal system are better explained in light of it. Moreover, in some instances, the Qumranic authors declared it explicitly by using the term “the foundation of the Creation” and the like. Admittedly, the realistic approach to halakhah is not restricted to priestly tradition. As argued by Jeffrey Rubenstein in his debate with Daniel Schwartz, many rabbinic halakhot exhibit similar realistic perceptions.34 Nevertheless, we find that over the course of time, rabbinic literature developed a growing tendency toward a nominalistic perception of the law. Thus, instead of presenting “realism” versus “nominalism” as the core of the dispute between the priestly halakhah and that of the Pharisees and their heirs, the Rabbis, I would argue (similarly to Rubenstein’s conclusions in his above-mentioned article)35 that this issue, like many others discussed in previous chapters, was the subject of a long develop-

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mental process. Evolution from a realistic view of the law toward a nominalistic approach is a normal and predictable development in any legal system, from its relatively early, primitive stages, which depict the law as a reflection of reality, to an approach that dissociates the law from nature and assigns it an independent existence.

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Halakhah from Qumran to the Mishnah Concluding Remarks

In his article mentioned at the outset of this book, “The History of Halakhah and the Dead Sea Scrolls,” Jacob Sussman portrayed the Sadducee halakhah as stringent, as opposed to the Pharisaic halakhah, which he saw as tending to be more lenient. Sussman was following in the footsteps of Abraham Geiger, who similarly described the “old” halakhah as severe and inflexible, as opposed to the “new” rabbinic halakhah, which he, too, saw as more flexible and tending toward leniency. The only difference between the two is that in light of the findings of the scrolls and especially the halakhic content of Miqsat Ma’ase Ha-Torah, Sussman applied these characteristics not only to the post-70 Rabbis, but also to the pre-70 Pharisees.1 Yaªakov Elman challenged Sussman’s assertion.2 He first cites at least one case in which the Temple Scroll has a more lenient stance than that of the Rabbis. While according to rabbinic halakhah, Numbers 19:18 is interpreted to include human bones from a live person as impure and defiling objects, the Temple 129

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Scroll 50:5 limits impure bones to dead persons.3 More important is Elman’s general claim that it is exactly this assumption concerning the stringency of the Sadducees’ halakhah that led scholars to interpret many halakhic passages from the scrolls in accordance with it while they actually may easily be understood differently. Though Elman’s arguments are at times truly challenging and should warn us of superficial interpretations of Qumran legal rulings based solely on the assumption that they opposed rabbinic halakhah and should exhibit a stricter stance, in principle, Sussman is no doubt right. This is because the stringency of priestly halakhah is not merely a matter of statistics, but a state of mind. This is evident, as already noticed by Sussman himself (and mentioned above in chapter 3) from the sectarians’ explicit accusation of the Pharisees of choosing the easy way: “Its [interpretations] concern the Man of Lies who misdirected many with deceptive words, for they have chosen easy things (banaru bakalot) and did not listen to the Interpreter of Knowledge” (4QpPsa 1–2, 1:18–19 [4Q171]). Furthermore, it is for this very reason that they called the Pharisees “dorshe ha-nalkot.” As I noted above, this nickname is literally translated as “seekers of smooth things,” but the expression means, “those looking for easy interpretations.” It has been rightly suggested that this denomination is a word play on the Hebrew “dorshe halakhot” (exegetes of halakhah), which is how the Pharisees thought of themselves.4 Priestly halakhah’s tendency toward stringency is better understood in light of Sadducean religiosity as portrayed in the previous chapters, that is, as rooted in both their belief about the halakhah’s divine source and their absolute commitment to the written Torah. Lacking the confidence that the Pharisees enjoyed

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as a result of their adherence to their ancestors’ traditions, the sectarians lived in constant anxiety about whether they were fulfilling their religious commitments properly, which resulted in an ever-growing tendency toward strict halakhic norms. The sectarian rhetoric against the Pharisees is an expression of their psychological and theological frustration in the face of their rivals’ religious behavior. While they were investing so much energy in living an ascetic lifestyle in order to fulfill the commandments of the Torah properly, the Pharisees were conducting relatively easy and comfortable lives and still considered themselves to be righteous. Ridiculing an opponent using contemptuous language is the weapon of the weak. It is useful only for internal purposes, to strengthen the community’s members, but it is inefficient for winning a real battle. In practice, this tendency toward stringency influenced halakhah on two levels. Not only does priestly halakhah choose the extreme option for any given halakhic detail, but it also adds extra prohibitions and other legal details not mentioned in the Torah. One example of this kind, which has been discussed intensively in chapter 3 above, is the sectarian prohibition on uncle-niece marriage. Here is one more example, which will also serve to illuminate some other aspects of the halakhah of the Sadducees. The halakhah in the scrolls prescribes the death penalty for quite a few sinners, even though it is not mandated by the Torah. The most famous one is the Temple Scroll’s (64:7–13) verdict of death by hanging to traitors.5 Similarly the Temple Scroll (51:11– 18) sentences to death a judge who has been bribed. Some other death penalties are mentioned in the Damascus Document, as well. At 4Q266, 6ii 9–10 women are warned not to enter the Temple while impure after childbirth, because “this is a matter of

Halakhah from Qumran to the Mishnah / 132

capital punishment,” and with high probability there is at least one extra case of the death penalty in this composition.6 Against this tendency of the scrolls to add extra death penalties to those specified in Scripture, the Mishnah stands in sharp contrast. The second half of tractate Sanhedrin consists of four lists of sins punishable by death, arranged according to the various modes of execution: stoning, burning, decapitation, and strangulation. Examination of the lists reveals that without exception, all of the sins it lists are specifically punished by the death penalty in the Torah, and the Rabbis didn’t add a single one to it. It might very well be that this strict adherence to the Torah is one of the reasons for the creation of the lists, as if to say: “These and only these sinners who have been condemned to death by Scripture are to be executed by the court, and not any one else.” The dispute over the scope of the implementation of the death penalty constitutes, in my opinion, the background for the following tradition recorded in the scholion to Megilat Ta’anit, the Fast Scroll: The Sadducees had a book of decrees and it was written in it: “Those who are burned, those who are killed, those who are strangled.” And whoever asks them: Where from do you know that this one is liable to stoning and this one is liable to burning? They didn’t know to bring a proof from the Torah, but that this is what is written and set down (katuv umunan) in the book of decrees.7 (For Hebrew, see Appendix, no. 1)

The explanation of this passage troubled commentators and scholars greatly. It is usually understood as concerned with the classification of the various sinners according to the different modes of execution, but it is not at all clear why the Pharisees thought their stand to be better grounded in Scripture than that of the Sadducees, especially when taking into consideration the fact that

Halakhah from Qumran to the Mishnah / 133

strangulation is a rabbinic innovation not mentioned in the Torah. The passage’s content becomes clear when we realize that the Pharisees’ argument against the Sadducees was about the inclusion of certain specific sinners in the lists of those who are to be put to death. As explained above, the Sadducees added quite a few items to the list of people deserving the death penalty. Looking into the lists in the Sadducees’ book of decrees, the Pharisees questioned the scriptural sources for these additions and celebrated the Sadducees’ failure to produce any authority for them. How, indeed, did the Sadducees justify the additional death penalties not prescribed by Scripture? The answer is that this was exactly the role of the Book of Decrees, and it functioned just like the Temple Scroll and other rewritten Bible compositions in Qumran: The very writing of the extrabiblical tradition in the book authorized them.8 The categories of stringency versus leniency differentiate between two groups within the Pharisaic-Rabbinic movement itself: the School of Hillel and the School of Shammai. The Shammaites usually hold a stricter view than that of the Hillelites. As with the Pharisees-Sadducees dispute, here too, it seems that the tendency toward stringency of the School of Shammai and toward leniency of the School of Hillel are immanent to their halakhic conceptions, and not merely statistical facts. This is true at least from the point of view of some of the later Tannaim and the editor of the Mishnah, who all made lists of the exceptional cases in which the School of Hillel takes the stricter stance, while the School of Shammai holds the more lenient position.9 The creation of these lists by itself testifies that in the eyes of its authors, stringency and leniency were real characteristics of the two schools’ halakhic traditions.

Halakhah from Qumran to the Mishnah / 134

The fact that the School of Shammai’s attitude resembles that of the priestly halakhah should not surprise us. In not a few cases, the halakhic stance of the School of Shammai is much closer to the sectarian halakhah than that of the School of Hillel. Recently, Vered Noªam has discussed a few such examples.10 Nevertheless, there is a substantial difference between the two phenomena. The similarity between the sectarian law and the viewpoint of the School of Shammai with regard to some details of halakhah follows from the developmental model that I presented in the Introduction. Accordingly, we may assume that the halakhic positions that the School of Shammai shares with the sectarians were the norms accepted by all parties (including the Pharisees) at the time of the Temple, and that the view of the School of Hillel represents a new, innovative development within Pharisaic-Rabbinic thinking. On the other hand, the common tendency toward stringency shared by the Sadducees and the School of Shammai doesn’t point to any “genetic” connection between them. Like the School of Hillel, the School of Shammai originated within the Pharisees and wasn’t the heir of the Sadducees. The schism between the two schools regarding their tendencies toward stringency or leniency is a common division between two rival groups and is likely to have developed independently in different circumstances in history. I similarly emphasized in chapter 2 that the fact that Rabbi Eliezer (who was himself from the School of Shammai) holds some halakhic views identical to those found in the scrolls doesn’t make him sectarian or a Sadducee. There is no doubt that Rabbi Eliezer was part of the rabbinic movement, and in matters that we know were disputed between the Pharisees and Sadducees, he clearly held traditional Pharisaic positions. Such, for example, is the pri-

Halakhah from Qumran to the Mishnah / 135

ority that Rabbi Eliezer granted to the tradition over any exegetical innovation, which is a fundamental principle in Pharisaic doctrine, as Josephus reports. One should therefore be careful when speaking of finding traces of sectarian halakhah in rabbinic literature. It only means that the “old” halakhah represented in the scrolls can still be detected in the sayings of some of the Rabbis. It doesn’t mean, however, that some of Rabbis adopted a sectarian halakhic stance such as was disputed between the Sadducees and the Pharisees. There is no shred of evidence for such a case.11 While stringency and leniency characterize the difference between the Sadducees and the Pharisees at the time of the Temple, we don’t have any clear knowledge concerning the Pharisees’ stance in connection with yet another characteristic of the priestly halakhah, and that is its theological assumption regarding the law as the foundation of the Creation. It’s highly probable that they weren’t too bothered by this issue, because in any case, the prime binding factor in their religion was the norms handed down by tradition. Nevertheless, the later rabbinic literature certainly developed an ever-growing tendency toward a nominalistic perception of the law and dissociated itself from the old, realistic approach. The differences between the Sadducees and the Rabbis regarding these two aspects of halakhah and many others discussed in the course of this book lend themselves easily to the two theoretical models for the relationship between these two legal corpora that I laid down in the Introduction. One, which I termed “reflective,” concerns those aspects and details of halakhah that were already debated by the two groups at the time of the Temple, though sometimes our knowledge of the Pharisaic stance is actu-

Halakhah from Qumran to the Mishnah / 136

ally a projection of the rabbinic view back into the past, assuming that the Rabbis’ standpoint accurately reflects that of their ancestors. The other model—the developmental model—describes the relationship between the halakhah in scrolls and that in rabbinic literature as representing the “old” halakhah and the “new” halakhah, respectively. This model supposes changes to have taken place in a single direction from the pre-70 “old” legal tradition to the new, innovative, post-70 rabbinic halakhah. The surprising outcome of the various discussions conducted in this book is that there was also an underground stream that flowed in the opposite direction. Some characteristics of halakhah originally associated with the priestly legal tradition were later adopted by the Rabbis. A few such features have been dealt with in the previous chapters, all of them basically connected to the gradual shift of the Pharisees and the Rabbis from a religious sensibility based on tradition to a text-based approach that had previously characterized the Sadducees and the Qumran sectarians. The Sadducees were the first to associate traditional religious norms with Scripture. The need for this activity was the result of their belief that only the written law has binding authority, not the oral tradition. This, I suggested in chapter 3, was the catalyst for the creation of the hermeneutic principle that the law of incest is written from the point of view of the male, but should be read as directed at women as well. The original motivation for its creation was to defend the illegitimacy of some marriages that traditionally were prohibited, though not specified in Scripture. The Pharisees, who, as Josephus tells us, held fast to the traditions handed down by their ancestors, considered these prohibitions to be “second-degree incest” as decreed by the scribes. One such prohibited union

Halakhah from Qumran to the Mishnah / 137

(though, as will be explained below, it is not listed as seconddegree incest) is marrying one’s maternal brother’s widow. This prohibition is in fact not outlawed by the Torah, as is evident by comparing the biblical phraseology of the prohibition on intercourse with the sister in-law with the prohibition on intercourse with one’s own sister. While in relation to the latter case it is specifically stressed in the verse that “the nakedness of your sister, the daughter of your father or the daughter of you mother— whether of the household clan or of an outside clan—do not uncover her nakedness” (Leviticus. 18:9), in the case of one’s sister in-law it just says, “The nakedness of your brother’s wife you shall not uncover—she is your brother’s nakedness” (Leviticus 18:16).12 Looking into the different strategies used by the scrolls on the one hand and the Rabbis on the other to solve the contradiction between the tradition and the Bible is illuminating. The Temple Scroll simply rewrites the Bible to include the extra prohibition. Thus, in the list of incest prohibitions at the end of the scroll (TS 66:12) we read: “A man shall not take the wife of his brother and shall not lift the skirt of his brother, the son of his father or the son of his mother, for this is unclean.” Rabbi Yishmael in his midrash on Leviticus 18–20 (Mekhilta DeªArayot)13 explicitly admits that according to the plain meaning of the verse, the maternal brother’s wife is not prohibited.14 Most probably, in accordance with the traditional Pharisaic tradition, he considers the prohibition on taking the wife of a half-brother descended from the mother to be a nonbiblical prohibition—“the words of the scribes.” Rabbi Akiva, on the other hand, uses his innovative hermeneutical skills to include the wife of a half-brother descended from the mother in the biblical prohibition. A midrash quoted in the Talmud reads as follows:

Halakhah from Qumran to the Mishnah / 138 “The nakedness of your brother’s wife you shall not uncover”— [a brother] either from his father or from his mother. You say from his father or from his mother, or maybe (Scripture refers to) only from his father and not from his mother? . . . Scripture says: “She is the nakedness of your brother” to teach (that the law refers to both) either from the father or from the mother.” (b. Yevamot. 55a; for Hebrew, see Appendix, no. 2)

As some scholars have already noted, this is not an exceptional midrash for Rabbi Akiva. Very often, his homilies are intended to ground nonbiblical halakhic details in Scripture.15 What I would like to stress here is that, in fact, Rabbi Akiva’s homilies function exactly the same way as the rewriting of the bible by the Temple Scroll. This marks the victory of the Sadducees’ text-based approach over the original Pharisaic tradition-based stance still being held by Rabbi Ishamel. It is worth noting in this connection that in chapter 3 I explored another aspect of Rabbi Akiva’s tendency toward linking the halakhic traditions to Scripture. It was argued that the terms “mitsvot ªase” and “mitsvot lo taªase” (positive commandments and negative commandments) were redefined by the School of Rabbi Akiva. Instead of the old functional definitions, according to which a commandment to perform an act is “positive” and a warning against wrongdoing that demands abstention is “negative,” Rabbi Akiva introduced new linguistic definitions according to which a “positive” commandment is a commandment phrased in Scripture positively and those phrased using negative components are “negative” commandments. The inclination to link and back up the halakhic traditions with the words of the Torah, which gradually replaced the original Pharisaic position that granted full authority to ancestral religious norms, is but one aspect of halakhah in which the Rabbis actually

Halakhah from Qumran to the Mishnah / 139

adopted the Sadducees’ viewpoint. In chapter 3, I also argued that the hermeneutical techniques first developed within Sadducee circles in order to defend the tradition and to link it to the biblical text quickly turned into creative tools that resulted in new halakhic requirements not known before. Rabbinic halakhah went through the same development. While in the early times, the Pharisees resisted any new additions to the already existing halakhah, in the later Tannaitic midrash we find many new halakhic details emerging out of the Rabbis’ innovative reading of the Torah. Very much connected to those phenomena is the development of obligatory quantities and measurements for the fulfillment of a series of Pentateuchal commandments. Mishnah Peºah still reflects some resistance against the establishment of obligatory measurements already practiced by the Qumranites. Nevertheless, the later rabbinic literature does contain such measurements. Of a different nature, but still relevant to the current discussion, is the de facto similarity between the Qumranic and the rabbinic systems of decision making. In spite of the fundamental differences between the two groups’ rhetoric, in practice, the final outcome was heavily dependent on the stands taken by charismatic, authoritative leaders of the two groups. To all of the above, one should also add the Qumran system of fixed daily prayers, which preceded the development of the same religious phenomenon in the rabbinic movement by at least a century.

. . . History books tell us that with the destruction of the Temple in 70 c.e., the Sadducees, the Qumran sectarians, and other Jewish groups disappeared and that only the Pharisees’ tradition survived within the rabbinic movement.16 The traditional explanation for

Halakhah from Qumran to the Mishnah / 140

this phenomenon in scholarly writings is that the Sadducees, as a Temple-based group, lost their power and influence with the destruction of the Temple and that the Essenes physically perished in the great war against the sons of darkness.17 This enabled the Pharisees who gathered in Yavneh to establish the rabbinic movement and to eject all those who were not members of their own party. In his 1984 article, “The Significance of Yavneh: Pharisees, Rabbis and the End of Jewish Sectarianism,”18 Shaye Cohen suggested a revolutionary, reverse explanation. It was not that the Rabbis took advantage of the historical circumstances to gain power, to define orthodoxy, and to expel heretics. Rather, they created a religious atmosphere that made sectarianism anachronistic. In Cohen’s own words, “The major goal of the Yavneh rabbis seems to have been the creation of a society which tolerated even encouraged vigorous debate among members of the fold. The Mishnah is the first work of Jewish antiquity which ascribes conflicting legal opinions to named individuals who, in spite of their disagreements, belong to the same fraternity.”19 The conclusions that emerge from the above presentation, I would suggest, point to a more complicated picture. We should consider the possibility that it was not as a result only of the Rabbis’ pluralistic approach that the various groups disappeared, creating one rabbinic movement. Rather, the phenomenon had much to do with the fact that the Pharisees and their heirs the Rabbis actually adopted some basic concepts of the Sadducees’ legal system.

‫‪APPENDIX OF HEBREW TEXTS‬‬

‫‪INTRODUCTION‬‬

‫)‪1. Sifre Numbers 6 (Horovitz edition, 9‬‬ ‫ואיש את קדשיו לו יהיו‪ ,‬למה נאמר לפי שהוא אומר ובשנה הרביעית‬ ‫יהיה כל פריו קדש הלולים לה‘ )ויקרא יט כד( קודש לבעלים או קודש‬ ‫לכהנים ת“ל ואיש את קדשיו לו יהיו בנטע רבעי הכתוב מדבר שיהא‬ ‫לבעלים דברי ר‘ מאיר ר‘ ישמעאל אומר קודש לבעלים אתה אומר קודש‬ ‫לבעלים או קודש לכהנים הרי אתה דן מעשר שני קרוי קודש ונטע רבעי‬ ‫קרוי קודש אם למדתי למעשר שני שאינו אלא של בעלים אף נטע רבעי‬ ‫לא יהא אלא של בעלים‪.‬‬ ‫)‪1a. Sifre Numbers 6 (ms. Vatican 66‬‬ ‫”ואיש את קדש‘ לו יהיו“ למה נא‘? לפי שנ‘ ”ובשנה הרביעית יהיה כל פריו‬ ‫קדש הלולים“ ‪ -‬קדש לבעלים או קדש לכהנים? ת‘ל ”ואיש את קדשיו לו‬ ‫יה‘“‪ :‬בנטע רבעי הכת‘ מדבר שיהו לבעלין‪ .‬דברי ר‘ מאיר‪ .‬ר‘ ישמעל או‘‪:‬‬ ‫קדש לכהנים‪ .‬אתה או‘ קודש לכהנים או קדש לבעלים? הרי אתה דן‪ :‬מעשר‬ ‫שיני קרוי קדש ונטע רבעי קרוי קדש‪ .‬אם למדתי למעשר שיני שאינו אל‘‬ ‫לבעלים אף נטע רבעי לא יהא אל‘ לבעלין‪.‬‬ ‫‪141‬‬

‫‪142‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬ ‫‪CHAPTER 1‬‬

‫‪1. Temple Scroll 53: 4–8‬‬ ‫‪4‬‬

‫ואכלתה בשעריכה וה̇טהור והטמא בכה יחדיו כצבי‬

‫‪ 5‬וכאיל רק חזק̇ לבלתי אכול הדם על הארץ תשופכנו כמים וכסיתו‬ ‫‪ 6‬בעפר כי הדם הוא הנפש ולוא̇ תואכל את הנפש עם הבשר למען‬ ‫‪ 7‬יוטב לכה ולבניכה אחריכה עד עולם ועשיתה הישר והטוב‬ ‫‪ 8‬לפני אני יהוה אלוהיכה‬ ‫‪2. CD XVI:6–9‬‬ ‫ואשר אמר מוצא שפתיך תשמור להקים ‪ vacat‬כל שבועת אסר אשר יקום‬ ‫>יקים< איש על נפשו לע̇ש̇ות דבר מן התורה עד מחיר מות אל יפדהו‬ ‫‪ vacat‬כל אשר ]יק[י֯ם̇ א̇י̇ש על נפשו לס̇ור מ̇]ן התו[רה ע̇ד מחיר מות אל‬ ‫יקימהו‬ ‫‪3. The Rule of the Community (1QS) VII:12–14‬‬ ‫ואשר יהלכ לפני רעהו ערום ולוא היה אנוש ונענש ששה חודשים‬ ‫ואיש אשר ירוק אל תוכ מושב הרבים ונענש שלושים יום‬ ‫ואשר יוציא ידו מתוחת בגדו והואה פוח ונראתה ערותו ונענש שלושים יום‬ ‫)‪4. m. Eduyot 1:5–6 (according to ms. Kaufmman‬‬ ‫ולמה מזכירין את דברי יחיד ב]י[ן המרובין הואיל ואין הלכה אלא כדברי‬ ‫המרובין‪ .‬שאם יראה בית דין את דברי היחיד ויסמוך עליו‪ .‬שאין בית דין‬ ‫יכול לבטל את דברי בית דין חבירו עד שיהא גדול ממנו בחכמה ובמיניין‪.‬‬ ‫היה גדול ממנו בחכמה ]אבל[ לא במיניין‪ ,‬במינין אבל לא בחכמה‪ ,‬אינו‬ ‫יכול לבטל את דברו עד שיהא גדול ממנו בחכמה ובמיניין‬ ‫אמ‘ ר‘ יהודה‪ :‬אם כן למה מזכירין את דברי היחיד בין המרובין לבטלן‪.‬‬ ‫שאם יאמר אדם‪ ,‬כך אני מקובל ואמרו לו‪ ,‬מדברי איש פל‘ שמעתה‪.‬‬

‫‪143‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬ ‫‪CHAPTER 2‬‬

‫‪1. CD III:12–17‬‬ ‫ובמחזיקים במצות אל אשר נותרו מהם הקים אל את בריתו לישראל עד‬ ‫עולם לגלות להם נסתרות אשר תעו בם כל ישראל ‪ vacat‬שבתות קדשו‬ ‫ומועדי כבודו עידות צדקו ודרכי אמתו וחפצי רצונו אשר יעשה האדם וחיה‬ ‫בהם ‪ vacat‬פתח לפניהם ויחפרו באר למים רבים ומואסיהם לא יחיה‪.‬‬ ‫‪2. CD VI: 2–11‬‬ ‫ויזכר אל ברית ראשנים ‪ vacat‬ויקם מאהרן נבונים ומישראל חכמים‬ ‫וישמיעם ויחפורו את הבאר‪” .‬באר חפרוה שרים כרוה נדיבי העם במחוקק“‪:‬‬ ‫’הבאר‘ היא התורה ו‘חופריה‘ הם שבי ישראל היוצאים מארץ יהודה ויגורו‬ ‫בארץ דמשק‪ ,‬אשר קרא אל את כולם שרים כי דרשוהו ולא הושבה פארתם‬ ‫בפי אחד ‪ vacat‬ו‘המחוקק‘ הוא דורש התורה אשר אמר ישעיה מוציא כלי‬ ‫למעשיהו ‪ vacat‬ו‘נדיבי העם‘ הם הבאים לכרות את הבאר במחוקקות‬ ‫אשר חקק המחוקק להתהלך במה בכל קץ הרשיע‪ ,‬וזולתם לא ישיגו עד‬ ‫עמד יורה הצדק באחרית הימים‪.‬‬ ‫‪3. 1QS VIII:11–16‬‬ ‫וכול דבר הנסתר מישראל ונמצאו לאיש הדורש אל יסתרהו מאלה מיראת‬ ‫רוח נסוגה ובהיות אלה ליחד בישראל בתכונים האלה יבדלו מתוך מושב‬ ‫הנשי העול ללכת למדבר לפנות שם את דרכ הואהא כאשר כתוב במדבר פנו‬ ‫דרך **** ישרו בערבה מסלה לאלוהינו היאה מדרש התורה א̇]ש[ר֯ צוה ביד‬ ‫מושה לעשות ככול הנגלה עת בעת וכאשר גלו הנביאים ברוח קודשו‪.‬‬ ‫‪4. Temple Scroll, LVI:1–11‬‬ ‫ו̇ד̇רשו ]את[ הדבר אשר עלית]ה לדרוש והגי[דו לכה את המשפט ועשיתה‬ ‫על פי התורה אשר יגידו לכה ועל פי הדבר אשר יואמרו לכה ‪ vac‬מספר‬ ‫התורה ויגידו לכה באמת מן המקום אשר אבחר לשכין שמי עליו‬ ‫ושמרתה לעשות ככול אשר יורוכה ועל פי המשפט אשר יואמרו לכה תעשה‬ ‫לוא תסור מן התורה אשר יגידו לכה ימין ושמאול והאיש אשר לוא ישמע‬

‫‪144‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬

‫ויעש בזדון לבלתי שמוע אל הכוהן העומד שמה לשרת לפני או אל השופט‬ ‫וימת האיש ההוא ובערתה הרע מישראל וכול העם ישמעו ויראו ולוא יזידו‬ ‫עוד בישראל ‪vacat‬‬ ‫‪5. 4Q375 (4QapocrMoses-a) 1i–1ii:9‬‬ ‫‪top margin‬‬

‫‪] 1‬את כול אשר [י̇צוה אלוהיכה אליכה מפי הנביא ושמר֯תה‬ ‫‪] 2‬את כול החו[ק̇ים האלה ושבתה עד יהוה אלוהיכה בכול‬ ‫‪] 3‬לבכה ובכו[ל̇ נפשכה ושב א̇לוהיכה מחרון אפו הגדול‬ ‫‪] 4‬להושיעכ[ה֯ ממצוקותיכה והנביא אשר יקום ודבר בכה‬ ‫‪] 5‬סרה להש[י֯בכה מאחרי אלוהיכה יומת̇ ‪ vacat‬וכיא יקום השבט‬ ‫‪] 6‬אשר[ הואה ממנו ואמר̇ לוא יומת כיא צ̇ד̇יק הואה נביא‬ ‫‪] 7‬נ[א֯מן הואה ובאת̇ה̇ עם השבט ההואה וזקניכה ושופטיכה‬ ‫‪] 8‬א[ל̇ המקום אשר יבחר אלו̇היכה באחד שבטיכה ‪ vacat‬לפני‬ ‫‪] 9‬ה[כ֯ו֯הן המ̇שיח אשר יוצק̇ ע֯ל ר̇]ו[אשו שמן המשיחה‬

‫‪bottom margin‬‬

‫‪] 1‬‬

‫[‬

‫‪] 2‬‬

‫[‬

‫‪ 3‬ולקח ]פר בן בקר ואיל אחד‬ ‫‪ 4‬באצב֯]עו על פני הכפורת‬ ‫‪ 5‬בשר האי֯]ל‬

‫והזה[‬ ‫[‪]ºº‬‬

‫[‬

‫[ו֯שעיר עז֯]ים אחד אשר[‬

‫‪ 6‬לחטאת יק֯]ח ושחט אותו וכ[פ֯ר̇ ב̇ע̇ד̇ כול העדה ואה̇]רון יזה מן הדם[‬ ‫‪ 7‬לפני פרוכת ]הקודש ונגש ע[ד֯ לארון העדות ודרש את֯] כול מצוות[‬

‫‪145‬‬

‫‪ 8‬יהוה לכול ]‬ ‫‪ 9‬העדה וזה ]‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬

‫הנסת[ר֯ות ממכה ו]י[צא לפני כ̇]ול ראשי אבות[‬ ‫[ ל̇]‬ ‫‪bottom margin‬‬

‫)‪6. B. Sanhedrin 88b (according to ms. Munich 95‬‬ ‫תניא‪ ,‬אמר רבי יוסי‪ :‬כתחילה לא היה חלוקת בישראל‪ ,‬אלא בית דין של‬ ‫שבעים ואחד יושבין בלשכת הגזית‪ ,‬ושני בתי דינין של עשרים ושלשה‪ ,‬אחד‬ ‫יושב על פתח הר הבית ואחד יושב על פתח העזרה‪ ,‬ושאר בתי דינין של‬ ‫עשרים ושלשה יושבין בכל עיירות ישראל‪ .‬הוצרך הדבר לשאול ‪ -‬שואלין‬ ‫מבית דין שבעירן‪ ,‬אם שמעו ‪ -‬אמרו להן‪ ,‬ואם לאו ‪ -‬באין לזה שסמוך‬ ‫לעירן‪ .‬אם שמעו ‪ -‬אמרו להם‪ ,‬ואם לאו ‪ -‬באין לזה שעל פתח הר הבית‪.‬‬ ‫אם שמעו ‪ -‬אמרו להם‪ ,‬ואם לאו ‪ -‬באין לזה שעל פתח העזרה‪ .‬ואומר‪ :‬כך‬ ‫דרשתי וכך דרשו חבירי‪ ,‬כך למדתי וכך למדו חבירי‪ .‬אם שמעו ‪ -‬אמרו‬ ‫להם‪ ,‬ואם לאו ‪ -‬אלו ואלו באין ללשכת הגזית‪ ,‬ששם יושבין מתמיד של‬ ‫שחר עד תמיד של בין הערבים‪ .‬ובשבתות ובימים טובים יושבין בחיל‪.‬‬ ‫נשאלה שאלה בפניהם‪ ,‬אם שמעו ‪ -‬אמרו להם‪ ,‬ואם לאו ‪ -‬עומדין למנין‪.‬‬ ‫רבו המטמאים ‪ -‬טמאו‪ ,‬רבו המטהרין ‪ -‬טהרו‪.‬‬ ‫‪7. m. Yadayim 4:3‬‬ ‫וכשבא ר‘ יוסי בן דורמסקית אצל רבי אליעזר בלוד אמר לו מה חדוש היה‬ ‫לכם בבית המדרש היום אמר לו נמנו וגמרו עמון ומואב מעשרים מעשר‬ ‫עני בשביעית בכה רבי אליעזר ואמר )תהלים כה( סוד ה‘ ליראיו ובריתו‬ ‫להודיעם צא ואמור להם אל תחושו למנינכם מקובל אני מרבן יוחנן בן‬ ‫זכאי ששמע מרבו ורבו מרבו עד הלכה למשה מסיני שעמון ומואב מעשרין‬ ‫מעשר עני בשביעית‪.‬‬ ‫‪8a. 1Qs VI:13–20‬‬ ‫וכולה מת֯נדב מישראל להוסיפ על עצת היחד ידורשהו האיש הפקוד‬ ‫ברואש הרבים לשכלו ולמעשיו ואם ישיג מוסר יביאהו בברית לשוב לאמת‬ ‫ולסור מכול עול וה}ל{בינהו בכול משפטי היחד ואחר בבואו לעמוד לפני‬

‫‪146‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬

‫הרבים ונשאלו הכול על דבריו וכאשר יצא הגורל על עצת הרבים יקרב‬ ‫או ירחק ובקורבו לעצת היחד לוא יגע בטהרת הרבים עד אשר ידרושהו‬ ‫לרוחו ומעשו עד מולאת לו שנה תמימה וגם הואה אל יתערב בהון הרבים‪.‬‬ ‫ובמולאת לו שנה בתוכ היחד ישאלו הרבים על דבריו לפי שכלו ומעשיו‬ ‫בתורה ואם יצא לו הגורל לקרוב לסוד היחד על פי הכוהנים ורוב אנשי‬ ‫בריתם יקריבו גמ את הונו ואת מלאכתו אל יד האיש המבקר על מלאכת‬ ‫הרבים וכתבו בחשבון בידו‪.‬‬ ‫‪8b. 4QSb 4:1–3‬‬ ‫‪ 1‬מדרש למשכיל ע̇ל֯] אנשי התורה המתנדבים להשיב מכול רע ולהחזיק‬ ‫בכול[‬ ‫‪ 2‬אשר צוה ולהבד ̇ל מעדת א֯]נשי העול ולהיות יחד בתורה ובהון‬ ‫ומשיבים[‬ ‫‪ 3‬על פי הרבים לכול דבר לתורה֯] ולהון[‬ ‫‪8c. 1QS 5:1–3‬‬ ‫וזה הסרכ לאנשי היחד המתנדבים לשוב מכול רע ולהחזיק בכול אשר‬ ‫צוה לרצונו להבדל מעדת אנשי העול להיות ליחד בתורה ובהון ומשובים‬ ‫על פי בני צדוק הכוהנים שומרי הברית ועל פי רוב אנשי היחד המחזקים‬ ‫בברית‬

‫‪CHAPTER 3‬‬

‫)‪1. Mekhilta, Kaspa 20 (Horovitz edition, 320‬‬ ‫ובשר בשדה טרפה‪ .‬אין לי אלא בשדה‪ ,‬בבית מנין? תלמוד לומר ”נבלה‬ ‫וטרפה“‪ ,‬הקיש טרפה לנבלה‪ ,‬מה נבלה לא חלק בה‪ ,‬בין בבית בין בשדה‪,‬‬ ‫אף טרפה לא נחלוק בה בין בבית בין בשדה‪ .‬הא מה תלמוד לומר ”ובשר‬ ‫בשדה טרפה“? דבר הכתוב בהווה‪.‬‬

‫‪147‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬

‫‪2. b. Hullin 42a‬‬ ‫א“ר שמעון בן לקיש‪ :‬רמז לטרפה מן התורה מנין? מנין? ”ובשר בשדה‬ ‫טרפה לא תאכלו“! אלא רמז לטרפה שאינה חיה מן התורה מנין? דקתני‬ ‫סיפא‪” ,‬זה הכלל‪ :‬כל שאין כמוה חיה – טרפה“‪ ,‬מכלל דטרפה אינה חיה‪,‬‬ ‫מנא לן? דכתיב‪” :‬וזאת החיה אשר תאכלו“‪ ,‬חיה אכול‪ ,‬שאינה חיה לא‬ ‫תיכול‪ ,‬מכלל דטרפה לא חיה‪.‬‬ ‫‪3. 4Q251, 12:3–6‬‬ ‫‪3‬‬ ‫‪4‬‬ ‫‪5‬‬ ‫‪6‬‬

‫ה[י̇א̇ א֯ל̇ יאכל איש בשר בהמה‬

‫‪vacat‬‬

‫נב[ל֯ו֯ת֯ וטרפ֯ה אשר לא חיה כי̇]‬ ‫בשרה [ל̇]מכ[ור לנכר̇י] [וחלבה לעש֯]ות בו כל מלאכה‬ ‫[ו֯ל̇]ז[ב̇חה ממנו הכ֯]‬ ‫‪4. CD 5: 7–11‬‬

‫ולוקחים איש את בת אחיהו ואת בת אחותו ‪ vacat‬ומשה אמר אל אחות‬ ‫אמך לא תקרב שאר אמך היא ומשפט העריות לזכרים הוא כתוב וכהם‬ ‫הנשים ואם תגלה בת האח את ערות אחי אביה והיא שאר ‪.‬‬ ‫)‪5. Sifra Achare Mot perek 13 (Weiss edition 86b‬‬ ‫”איש איש אל כל שאר בשרו לא תקרבו לגלות ערוה“ ‪ -‬כלל‪” ,‬ערות אביך‬ ‫וערות אמך לא תגלה“ – פרט‪ :‬כלל ופרט ואין בכלל אלא מה שבפרט‪ .‬הואיל‬ ‫ומותר בבת אחי אביו ואחי אביו מותר בבתו‪ ,‬אם למדתי שהוא אסור‬ ‫באשת אחי אביו אף אחי אביו יהא אסור באשתו; הואיל ומותר באשת‬ ‫חורגו‪ ,‬וחורגו מותר באשתו אם למדתי שהוא אסור בבת חורגו אף חורגו‬ ‫יהא אסור בבתו‪ .‬אם אמרת כן הבאת עריות מן הדין לכך נאמר ”איש איש‬ ‫אל כל שאר בשרו לא תקרבו לגלות ערוה“ – כלל‪” ,‬ערות אביך וערות אמך‬ ‫לא תגלה“ – פרט‪ :‬כלל ופרט ואין בכלל אלא מה שבפרט‪.‬‬

‫‪148‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬

‫‪6. 4Q270 frg. 3ii: 12–16‬‬ ‫‪] 12‬‬

‫על הלקט ועול[לות הכר֯ם ]ע[ד֯ ע֯ש֯]רה גרגרים[‬

‫‪] 13‬הע[ו֯ל̇ל̇ת̇ ]וכל הלקט[ עד סאה לבית הסאה והיא אשר ז֯]רעה[‬ ‫‪ 14‬א֯י֯ן̇ בה תרו̇]מה ופרט אין בה[ ו̇בעוללה עד עשרה ג̇]רגרים[‬ ‫‪] 15‬וב[נ֯קוף הז̇ ̇ית̇ ]ופרי תבואתו אם[ שלמה ה֯י֯א̇ נקפה] אחד[‬ ‫‪] 16‬משלו[ש֯י֯ם֯ ]וכול מעשר[ בו‬ ‫‪7. 4Q271, frg. 2: 1–5‬‬ ‫‪] 1‬‬ ‫הא[י֯פ̇ה‬

‫[ מגורן ימו֯̇ד את העשרון מן הג֯]ת את ההין ששית‬

‫‪] 2‬והיא הבת כאשר הקים אל [ה̇איפה והב̇ת}ב̇{ תכון אחד שניהן֯ ו֯]הרים‬ ‫ממנו שלי[ש̇י̇ת‬ ‫‪] 3‬ההין ליין ומחצית לשמן ולפרי [ה֯]ע[ץ̇‪ .‬אל יבדל איש להרים לשה֯ ]אח[‬ ‫ד̇ מן̇ ה֯מ֯א̇ה‬ ‫‪] 4‬אל [יאכל איש֯] מן השדה ומן הכרם[ ומן הגנה טרם ישלחו ]הכוה[‬ ‫נ֯ים את ידם‬ ‫‪] 5‬לבר[ך̇ לריאשונה֯‪.‬‬

‫‪CHAPTER 4‬‬

‫‪1. 4Q159 (4QOrdin-a) 2–4+8:8–10‬‬ ‫‪ 8‬כי יוצי איש שם רע על בתולת ישר]א[ל אם ב]יום[ קחתו אותה יואמר‬ ‫ובקרוה] נשים[‬ ‫‪ 9‬נאמנות ואם לוא כחש עליה והומתה ואם בש]קר[ ענה בה ונענש שני‬ ‫מנים] ואת אשתו לוא[‬ ‫‪ 10‬ישלח כול ימיו‬

‫‪149‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬

‫‪2. Sifra Kedoshim pereq 10, according to ms. Vatican‬‬ ‫)‪66 (ed. Weiss 92c‬‬ ‫”באש ישרפו אתו ואתהן“ ‪] -‬אותו ו[את אחת מהן‪ ,‬דברי ר‘ עקיבה‪ .‬ר‘‬ ‫ישמעאל או‘‪” :‬אתהן“ ‪ -‬עד שיהוא שתיהן‪ .‬שאם היה נסויי אשה ובא על‬ ‫ביתה ‪ -‬חייב‪ .‬ביתה ובא על אימה ‪ -‬חייב‪.‬‬ ‫)‪3. Sifra Kedoshim pereq11 (ed. Weiss 93c‬‬ ‫”]איש[ אשר יקח את אשת אחיו“ – באשת אחיו מאביו הכתוב מדבר‪ .‬או‬ ‫אינו אלא באשת אחיו אפילו מאמו ]‪, [...‬תלמוד לומר‪” :‬נדה היא“ ‪ -‬לא‬ ‫אמרתי אלא באשת אח שהיא כנדה‪ .‬מה נדה יש לה איסור ויש לה התר‬ ‫אף אשת אח יש לה אסור ויש לה התר‪ .‬ואיזו היא אשת אח שיש לה אסור‬ ‫ויש לה התר‪ ,‬זו אשת אחיו מאביו‪ .‬אם יש לו בנים אסור אם אין לו בנים‬ ‫מותרת‪.‬‬

‫‪CHAPTER 5‬‬

‫)‪1. Megilat Ta’anit (ed. Noam 77–78‬‬ ‫בארבעה בתמוז עדא ספר גזרתא‬ ‫מפני שכך כתוב ומונח להם לצדוקים ספר גזירות‪ :‬אלו שהן נשרפין‪ ,‬אלו‬ ‫שהן נהרגין‪ ,‬אלו שהן נחנקין‪ .‬ומי שהוא אומר להם מנין שזה חייב סקילה‬ ‫וזה חייב שריפה‪ ,‬אין יודעין להביא ראיה מן התורה‪ ,‬אלא שכתוב ומונח‬ ‫להם ספר גזירות‪.‬‬ ‫‪2. b. Yevamot 55a‬‬ ‫דתניא‪” :‬ערות אשת אחיך לא תגלה“ ‪ -‬בין מן האב בין מן האם‪ .‬אתה‬ ‫אומר‪ :‬בין מן האב בין מן האם‪ ,‬או אינו אלא מן האב ולא מן האם? ודין‬ ‫הוא‪ :‬חייב כאן וחייב באחותו‪ ,‬מה אחותו בין מן האב בין מן האם‪ ,‬אף‬ ‫כאן בין מן האב בין מן האם; או כלך לדרך זו‪ :‬חייב כאן וחייב בדודתו‪,‬‬

‫‪150‬‬

‫‪/‬‬

‫‪Appendix of Hebrew Texts‬‬

‫מה דודתו מן האב ולא מן האם‪ ,‬אף כאן מן האב ולא מן האם‪ .‬נראה למי‬ ‫דומה? דנין קרובי עצמו מקרובי עצמו‪ ,‬ואל תוכיח דודתו שקרובי האב;‬ ‫או כלך לדרך זו‪ :‬דנין דבר שעל ידי קדושין מדבר שעל ידי קדושין‪ ,‬ואל‬ ‫תוכיח אחותו שאיסור הבא מאליו‪ .‬ת“ל‪” :‬ערות אחיך היא“ ‪ -‬בין מן האב‬ ‫בין מן האם‪.‬‬

NOTES

INTRODUCTION

1. Jacob Sussman, “The History of Halakhah and the Dead Sea Scrolls—Preliminary Observation on Miqsat Ma’ase Ha-Torah (4QMMT)” [in Hebrew], Tarbiz 59 (1990): 11–76. A shorter version of this monumental article was republished as an appendix in Elisha Qimron and John Strugnell, Qumran Cave 4.V: Miqsat Ma’ase ha-Torah, Discoveries in the Judaean Desert 10 Oxford: Clarendon Press, 1994): 179–200. 2. Abraham Geiger, Urschrift und Übersetzungen der Bibel in ihrer Abhängigkeit von der innern Entwicklong des Judentums (Frankfurt am Main: Verlag Madda, 1928); Zacharias Frankel, Darkhe ha-Mishnah: Im darkhe ha-Tosefta, Mekhilta, Safra Ve-Sifri (Leipzig: H. Hunger, 1859). See also Sussman, “The History of Halakhah and the Dead Sea Scrolls,” n. 6. 3. As leading scholars of this generation, two should be mentioned: Yaakov Nahum Epstein and Chanoch Albeck. Also very influential are the works of Saul Lieberman. 4. A good survey of the history of the finding of the scrolls and their publication can be found in James C. VanderKam, The Dead Sea Scrolls Today (Grand Rapids, MI: W. B. Eerdmans, 1994). 151

Notes to Pages 4–6

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5. See his monograph, R.Eliezer ben Hyrcanus: A Scholar Outcast (Ramat-Gan: Bar-Ilan Univeristy Press, 1984), and the collection of his articles, Studies in the Development of the Halakhah [in Hebrew] (RamatGan: Bar-Ilan Univeristy Press, 1992). 6. Vered Noam, “Divorce in Qumran in Light of Early Halakhah,” Journal of Jewish Studies 56 (2005): 206–23, and “Traces of Sectarian Halakhah in the Rabbinic World,” in Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls. Proceedings of the Eighth International Symposium of the Orion Center . . . January, 2003, ed. Steven D. Fraade, Aharon Shemesh, and Ruth A. Clements, 67–85 (Leiden: Brill, 2006). 7. Yadin’s position is attested implicitly throughout his commentary on the Temple Scrolls. It is explicitly presented in his introduction to The Temple Scroll: English and Hebrew, 3 vols. in 4 (Jerusalem: Israel Exploration Society, Institute of Archaeology of the Hebrew University of Jerusalem, Shrine of the Book, 1983), 1:400–401. Schiffman’s tendency to view rabbinic sources as representing their forefathers, the Pharisees, is attested in many of his publications. See, for example, his account, “The Dead Sea Scrolls and Rabbinic Judaism: Perspectives and Desiderata,” Henoch 27 (2005): 27–33, esp. 30–31. Basically, Sussman is also of this view. See “The History of Halakhah and the Dead Sea Scrolls,” 65 and n. 208. 8. See Israel Knohl, “Post-biblical Sectarianism and the Priestly Schools of the Pentateuch: The Issue of Popular Participation in the Temple Cult on Festivals,” in The Madrid Qumran Congress: Proceedings of the International Congress on the Dead Sea Scrolls, March 1991, 2 vols., ed. Julio Trebolle Barrera and Luis Vegas Montaner, 601–9 (Leiden: Brill, 1992), and “Between Voice and Silence: The Relationship between Prayer and Temple Cult,” Journal of Biblical Literature 115 (1996): 17–30. 9. See Elisha Qimron and John Strugnell, Qumran Cave 4.V: Miqsat Ma’ase ha-Torah, Discoveries in the Judaean Desert 10 Oxford: Clarendon Press, 1994). For the possible historical background for this composition, See Lawrence H. Schiffman, “The New Halakhic Letter (4QMMT) and the Origins of the Dead Sea Sect,” Biblical Archaeologist

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53, no. 2 (1990): 64–73, and Hanan Eshel, “4QMMT and the History of the Hasmonean Period,” in Reading 4QMMT: New Perspectives on Qumran Law and History, ed. Moshe J. Bernstein and John Kampen, 53–65 (Atlanta, GA: Scholars Press, 1996). Steven Fraade, in “To Whom It May Concern: 4QMMT and Its Addressee(s),” Revue de Qumran 19 (2000): 507–26, argues for the possibility that MMT was not a real letter. 10. Here and throughout, translations of biblical passages are based on the Jewish Publication Tanakh edition, adjusted when needed. 11. See Menahem Kister, “Some Aspects of Qumranic Halakhah,” in The Madrid Qumran Congress, 1:578 n. 28; Itamar Kislev, “The Struggle over the Character of the Israelite Cult: The Case of the Law of O’rla and the Fourth-Year Produce (Leviticus 19:23–25)” [in Hebrew], Shenaton Le-Heker Ha-Mikra Ve-Hamizrach Ha-kadum 14 (2004): 29. For an extensive survey of the various readings of the law, see Jacob Milgrom, Leviticus 17–22 (New York: Anchor Bible, 2000), 1680–81. 12. M. Ma’aser Sheni 4:3–5, cf. y. Pe’a 7:2 (20b-c). 13. Geiger, Urschrift und Übersetzungen der Bibel, 181–84. 14. See Kister, “Some Aspects of Qumranic Halakhah,” 578–80. 15. Thus we read in y. Pe’a 7:6 (20b): “The sages did not refrain from interchanging ‘h’ and ‘ n’ in exegesis”—that is to say that despite the reading hilulim, the Rabbis interpret it as “redeemable,” as if it was written nilulim. So also the Bavli statement, “Whatever requires song requires desanctification” (Berakhot. 35a), rests on the same double reading of the verse. 16. Kister, “Some Aspects of Qumranic Halakhah,” and Kislev, “The Struggle over the Character of the Israelite Cult.” 17. It appears once in what seems to be a list of transgressors who are not to be admitted into the community. It is written: “[and one who didn’t ad]equately set aside [all the gifts that God gave] to the sons of Aaron the planting [in the fourth year of all trees with edible fruits].” (4Q270, 2, ii [DJD 18. 144]). It appears the second time in the following: “[All the holy offerings from] plantings of the vineyar[d and] all trees with edible fruit shall belong to th]em.” (4Q266, 6, iv [DJD 18. 59]. Qimron is of the

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opinion that this fragment doesn’t belong to the Damascus Document, but to another composition. 18. “[A]nd the produce of every edible tree; the fig the pomegranate and the olive in the fourth year” (DJD 35. 37). 19. “And concerning (the fruits of ) the trees for food planted in the land of Israel: they are to be dealt with like first fruits belonging to the priests” (DJD 10. 55). 20. Translations of quotations from Jubilees are from James H. Charlesworth, ed., The Old Testament Pseudepigrapha (London: Darton, Longman & Todd, 1983–1985). 21. See Chanoch Albeck, Das Buch der Jubiläen und die Halacha (Berlin: Siegfried Scholem, 1930), 31; Joseph M. Baumgarten, “The Laws of ‘Orlah’ and First Fruits in the Light of Jubilees, the Qumran Writings, and Targum Ps Jonathan,” Journal for Jewish Sudies 38 (1987): 198 n. 10. 22. Michael Segal, The Book of Jubilees: Rewritten Bible, Redaction, Ideology and Theology (Leiden: Brill, 2007). 23. Kister, “Some Aspects of Qumranic Halakhah,” 585. 24. Baumgarten, “The Laws of ‘Orlah,’” 196. 25. See Appendix, no. 1a. 26. Menahem Kahana, “Prolegomena to a New edition of the Sifre on Numbers,” PhD diss., Hebrew University, Jerusalem, 1982, 205. Consequently, we should assume (with Kahana, 206) that the “derasha” adjacent to Rabbi Yishmael’s view is not his, but was emended to fit the standard Rabbinic stand. 27. Actually, both opinions also are recorded, though implicitly, in Talmudic literature. The Talmud (b. Berakhot, 35a; y. Maºaser Sheni 5:5 [55d]) knows of a dispute between the Tannaim concerning the scope of the law of the fourth-year fruits. According to one view, it applies to every edible tree, but others hold that it is restricted to the vine only. See Yaakov Nahum Epstein, Introduction to the Mishnaic Text [in Hebrew] (Jerusalem: Magnes, 2000), 14–16, and Chanoch Albeck, Commentary to the Mishnah [in Hebrew] (Jerusalem: Bialik Institute and Dvir, 1958), vol. 1, Zeraªim, 404. Clearly, the first view is based on the passage from

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Leviticus, the other on the Deuteronomic verse. It is not far-fetched to assume that the first opinion will assign the fruits to the priests, while according to the second opinion, the owners are entitled to enjoy it. 28. Though most scholars are of the opinion that Jubilees is a preQumranic composition (see note 38 below), its legal tradition is similar to that of the Dead Sea Scrolls and both should be considered as part of the Priestly-Sudducean halakhic tradition. See also the discussion below, p. 19. 29. All the relevant quotations from these three authors can be find in Geza Vermes and Martin D. Goodman, The Essenes according to the Classical Sources (Sheffield: JSOT Press, 1998). 30. For a comprehensive account of the history of the “Essenes hypothesis” and an analysis of its methodological and philosophical difficulties, see Edna Ullman-Margalit, Out of the Cave: A Philosophical Inquiry into the Dead Sea Scrolls Research (Cambridge, MA: Harvard University Press, 2006). For the last outburst of the debate, see Albert I. Baumgarten, “Who Cares and Why Does It Matter? Qumran and the Essenes, Once Again,” Dead Sea Discoveries 11 (2004): 174–90, and the reply by Magen Broshi, “Essenes and Qumran? A Rejoinder to Albert Baumgarten,” Dead Sea Discoveries 14 (2007): 25–33. 31. Josephus, The Jewish War 2:119–20 and Antiquities of the Jews 18:16–19. 32. Qimron and Strugnell, Qumran Cave 4.V: Miqsat Ma’ase ha-Torah (DJD X). 33. Actually the similarities between the halakhic views attributed to the Sadducces in rabbinic literature and that of the scrolls had already been noted by Joseph Baumgarten ten years earlier. Using Temple Scroll and a quotation made by Milik from the yet-unpublished MMT he reached the conclusion that the Sons of Zadok (bne tsadok) of the Qumran scrolls should be identified with the Sadducees (tsadokim) of the rabbinic literature. See Joseph M. Baumgarten, “The Pharisaic-Sadducean Controversies about Purity and the Qumran Texts,” Journal of Jewish Studies 31 (1980): 157–70. 34. Sussman, “The History of Halakhah and the Dead Sea Scrolls.”

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35. See Menachem Kister, “Studies in 4Q Miqsat Ma’ase HaTorah and Related Texts: Law, Theology, Language and Calendar,” Tarbiz 68 (1999): 317–71. 36. Jonathan Ben-Dov, “Calendar,” Dictionary to Ancient Judaism, ed. John Collins and Dan Harlow (forthcoming). 37. See Joseph M. Baumgarten, “Halakhic Polemics in New Fragments from Qumran Cave 4,” in Biblical Archaeology Today, ed. Janet Amitai, 390–99 (Jerusalem: Israel Exploration Society, 1985). 38. For a survey of the different suggestions for the provenance and date of Jubilees, see James C. VanderKam, “The Origins and Purposes of the Book of Jubilees,” in Studies in the Book of Jubilees, ed. Matthias Albani, Jorg Frey, and Armin Lange, 3–24 (Tübingen: Mohr Siebeck, 1997); Segal, The Book of Jubilees, 32–38. Cana Werman, in “The Attitude Towards Gentiles in the Book of Jubilees and Qumran Literature Compared with Early Tannaitic Halakha and Contemporary Pseudepigrapha” [in Hebrew], PhD diss., Hebrew University, Jerusalem, 1995, 30–35, is of the opinion that Jubilees was composed within the Qumran community. Compare Menahem Kister, “The History of the Essenes: A Study of the ‘Animals Vision,’ Jubilees and Damascus Document” [in Hebrew], Tarbiz 56 (1987): 8–18. 39. This is the view of Lawrence Schiffman. See his Reclaiming the Dead Sea Scrolls (Philadelphia and Jerusalem: Jewish Publication Society, 1994), 258 and 271. 40. Recently, Marthah Himmelfarb, in A Kingdom of Priests: Ancestry and Merit in Ancient Judaism (Philadelphia: University of Pennsylvania Press, 2006), 112–13, also expressed her opinion against the theory concerning “priestly halakhah” shared by all non-Pharisaic compositions. To strengthen her position, she presents the reader with an example of what she claims to be a clear contradiction between the law in 4QD and the Temple Scroll. (Though she writes, “Let me offer a single example,” I suspect it to be her only example.) Himmelfarb claims there is a dispute between the two regarding the length of impurity imposed on whoever had a seminal emission or had sexual relations with a woman. In contrast to Leviticus 15:16–17, which decrees only one day’s impurity to

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these people, the Temple Scroll 45:7–12 seemingly extends the impurity period to three days, because it prohibits these men from entering the Temple city for three days. 4QD, on the other hand, Himmelfarb argues, is even stricter than the Temple Scroll and imposes on those who had a seminal emission or had sexual relations a seven-day impurity period. This she concludes from a very fragmentary passage in 4QD (4Q266 6i 14–16; 4Q272 1ii 3–7 [DJD 18. 53; 190]) that combines under a shared heading (“Concerning one who has discharge [ha-zav et zovo]”) one who had an abnormal discharge, a man who had a seminal emission, and probably also someone who had sexual relations, and that applies to all three the same laws. Himmelfarb assumes the rules have to do with the purification procedures for these people, thus concluding that according to 4QD, one who had a seminal emission or sexual relations with his wife becomes impure for seven days, the same as one who has had an abnormal discharge. The text, however, is so poorly preserved that it is impossible to determine with any certainty what its subject is. With most probability it does not deal with the purity procedures of the impure people themselves, but contains instructions concerning whoever has had contact with them. This is how Elisha Qimron (in his forthcoming edition of the Damscus Document) suggests reconstructing these lines: “[and who touches him will be impure until the evening an]d touching him is like touching the [zav] he shall launder his clo[th]es and [bathe in water and shall be impure until the evening. And as long as he is impure] who touches him shall ba[the and shall be impure until the evening].” According to this reading, not only does 4QD not disagree with the Temple Scroll, but they both agree on a common halakhic innovation: According to “priestly halakhah,” not only the sperm itself defiles (as is explicit in the Torah), but also contact with the man who had a seminal emission, as is the case with the zab (who had an abnormal genital discharge). Similarly, David Henshke has argued for the existence of a few cases of halakhic disputes within the Qumran corpus with which I don’t agree. One such case concerns the law of tithes. While the Temple Scroll assigned it to the Levites, as commended in Numbers 18:21–32, the

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Book of Jubilees assigns it to the priests (Jubilees 13:25–27 and 32:2–9). David Henshke, “The Laws of the Tithes: Between Temple Scroll and the Rabbis” [in Hebrew], Tarbiz 72 (2000): 85–111. I think the seeming contradiction is the result of the different literary settings of the two. The Temple Scroll presents the law in ideal circumstances, therefore it assigns the second tithe to the Levites as in Numbers 18, while the Book of Jubilees relates to the custom practiced in Second Temple period of giving tithes to the priests. See Aaron Oppenheimer, The Am Ha-Aretz (Leiden: Brill, 1977), 38–42.

CHAPTER 1. WRITING HALAKHAH IN QUMRAN

1. For the term “rewritten Bible” see note 10 below. 2. Aharon Shemesh and Cana Werman, “Halakhah at Qumran: Genre and Authority,” Dead Sea Discoveries 10 (2003): 110–11; Jacob Milgrom, “The Qumran Cult: Its Exegetical Principles,” in Temple Scroll Studies, ed. George Brook, 165–80 (Sheffield: JSOT 1989). 3. See The Temple Scroll: English and Hebrew, 3 vols. in 4, ed. Yigael Yadin, 1:73–77 (Jerusalem: Israel Exploration Society, Institute of Archaeology of the Hebrew University of Jerusalem, Shrine of the Book, 1983); Abraham Goldberg, “The Early and Late Midrash” [in Hebrew], Tarbiz 50 (1980–81): 96–97. Preservation of biblical language is also characteristic of parts of the scroll that are innovations by its author. Thus, for example, we find the biblical injunction regarding the king, “he shall not have many wives” (Deuteronomy 17:17) explained as follows: “And he shall not take a wife from all the daughters of the nations, but from his father’s house he shall take unto himself a wife, from the family of his father. And he shall not take upon her another wife, for she alone shall be with him all the days of her life. But should she die, he may take unto himself another (wife) from the house of his father, from his family” (Temple Scroll 57:15–19). Here we find the general biblical injunction interpreted particularistically as prohibiting a king from marrying more than one wife and enjoining that she be from his family. This halakhic

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innovation is worded in biblical language not easily distinguished from the biblical text itself (as in the use of the negative form “lo,” instead of “al,” commonly used in Qumran and rabbinic language). 4. “Pesher is a form of biblical interpretation peculiar to Qumran, in which biblical poetic or prophetic texts are applied to postbiblical historical/eschatological settings through various literary techniques in order to substantiate a theological convention pertaining to divine reward and punishment.” I borrow this fine definition from Shani Berrin, “Qumran Pesharim,” in Biblical Interpretation at Qumran, ed. Matthias Henze, 110 (Grand Rapids, MI: W. B. Eerdmans, 2005). See also idem, s.v. “Pesherim,” Encyclopedia of the Dead Sea Scrolls, ed. Lawrence H. Schiffman and James C. VanderKam, 2:644–46 (New York: Oxford University Press, 2000). 5. Yadin, The Temple Scroll, 1:71–73. 6. A similar reading of the biblical verse Deuteronomy 23:24 as related to keeping the Pentateuchal commandments has been preserved in Targum Ps. Jonathan: “A commandment which is appropriate to perform you should perform, and that which is not forbidden you should not perform.” For a possible explanation of the mention of the death penalty in this law, see Moshe Benovitz, Kol Nidre: Studies in the Development of Rabbinic Votive Institutions (Atlanta, GA: Scholars Press 1998), 24 n. 35. 7. Erik Larson, Manfred R. Lehmann, and Lawrence Schiffman, eds. “4QHalakha A,” in Qumran Cave 4.XXV, ed. Joseph M. Baumgarten et al., Discoveries in the Judaean Desert 35, 25–51 (Oxford: Clarendon Press, 1999). 8. For example, frags. 1–2, 9, 10, 12, 17. 9. For example, frags. 4–7, 8, 16. 10. Emanuel Tov and Sidny White, eds., “Reworked Pentateuch,” in Qumran Cave 4.VII: Parabiblical Texts, Part 1, ed. Harold Attridge et al., Discoveries in the Judaean Desert 13, 187–351 (Oxford: Clarendon Press, 1994). By using the term “rewitten Bible,” first introduced by Geza Vermes (see Scripture and Tradition in Judaism, 2nd ed. [Lieden: Brill, 1973], 95), I refer to those compositions that use the biblical language

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and introduce to it new material in order to solve exegetical problems and to harmonize the different biblical sources. For a full description see Shemesh and Werman, “Halakhah at Qumran,” 110–12. For the usefulness of the term, see Moshe Bernstein, “The Contribution of the Qumran Discoveries to the History of Early Biblical Interpretation,” in The Idea of Biblical Interpretation: Essays in Honor of James L. Kugel, ed. Hindy Najman and Judith H. Newman, 219 n. 10 (Leiden: Brill, 2004). 11. Fragment 9 relates: “[No one is to consume grain, wi]ne or oil unless [the priest has been given] their first fruits. And no one is to be late with the must, for [wine and oil] are the first of the must (mele’ah), and the grain is the demaªa.” Note that the scroll explicitly quotes verse 28 and comments on it. For the reading and reconstruction of this fragement, see Elisha Qimron, “Biblical Philology and the Dead Sea Scrolls” [in Hebrew], Tarbiz 58 (1988–89): 304–7. 12. Traces of a similar phenomenon are still visiable in the Mishnah as well. Though usually topically arranged, in some places the textual arrangement of the Mishanah depends on the context of the biblical passage. For a list of such examples, see H. L. Strack and Gunter Stemberger, Introduction to the Talmud and Midrash, trans. Markus Bockmuel (Minneapolis: Fortress Press, 1992), 138. 13. Aharon Shemesh, “4Q251: Midrash Mishpatim,” Dead Sea Discoveries 12 (2005): 280–302. 14. Such is the case with “4Q252 (Commentary on Genesis A),” ed. George Brooke, in Qumran Cave 4.XVII, Parabiblical Texts, Part 3, Discoveries in the Judaean Desert 22 (Oxford: Clarendon Press, 1996), 185–202, and Tov and White, eds., “Reworked Pentateuch. 15. Aharon Shemesh, “Scriptural Interpretations in the Damascus Document and Their Parallels in Rabbinic Midrash,” in The Damascus Document: A Centennial of Discovery, Proceedings of the Third International Symposium of the Orion Center for the Study of the Dead Sea Scrolls and Associated Literature, 4–8 February, 1998, ed. Joseph M. Baumgarten, Esther G. Chazon, and Avital Pinnick, 161–75 (Leiden: Brill, 2000). 16. Exclusion itself includes two elements: the offender is barred both from “the purity” (Tohara), that is, from contact with the food or liquid

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of “the Many,” and from the “Council” (ªetsah), that is, from participating in assemblies of “the Many.” In the Cave 4 penal code, a period of “punishment” is added to each “exclusion,” probably amounting to a reduction in the offender’s food ration. Joseph M. Baumgarten, “The Cave 4 Versions of the Qumran Penal Code,” Journal of Jewish Studies 43 (1992): 272–73. Only in three cases does a “punishment” appear on its own. It is plausible, as suggested by Jacob Licht, that in these cases, too, the offender was “excluded,” as well as having his food ration reduced, and that the two penalties were in force simultaneously. See Jacob Licht, The Rule Scroll: A Scroll from the Wilderness of Judaea, 1QS, 1QSa, 1QSb: Text, Introduction and Commentary [in Hebrew] (Jerusalem: Mossad Bialik, 1965), 154. For a different view, see Baumgarten, “The Cave 4 Versions of the Qumran Penal Code.” 17. Lawrence. H. Schiffman, Sectarian Law in the Dead Sea Scrolls: Courts, Testimony and the Penal Code (Chico, CA: Scholars Press, 1983), 155–90; Charlotte Hempel, The Laws of the Damascus Document: Sources, Tradition, and Redaction (Leiden: Brill, 1998), 141–48. 18. Although it is possible that the wording of the some of the provisions is unrelated to these verses, still, their assembly and ordering in a single list is indicative of a close bond with the pericopes in Leviticus, Numbers, and Deuteronomy. 19. Baruch J. Schwartz, The Holiness Legislation: Studies in the Priestly Code (Jerusalem: Magnes, 1999), 305. 20. See Rule of the Community 5:21, 8:5, 17, 20, 21, and 9:6. 21. Josephus, The Jewish War 2.8.9 (2.148–49). 22. For the rationale of including the injunction against spitting together with exposing ones nakedness, see Aharon Shemesh, “The Scriptural Background of the Penal Code in The Rule of the Community and Damascus Document,” Dead Sea Discoveries 15 (2008): 191–224. 23. See Jacob Milgrom’s comments in The JPS Torah Commentary: Numbers (Philadelphia: Jewish Publication Society, 1990), 342–43. 24. This is the underlying rationale in Moshe Weinfeld’s monograph Organizational Patterns and the Penal Code of the Qumran Sect: A Comparison with Guilds and Religious Associations of the Hellenistic-Roman

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Period (Fribourg, Switzerland: Editions Universitaires; Göttingen: Vandenhoeck and Ruprecht, 1986) and in Charlotte Hempel’s division of the laws in Qumran literature into two main categories: halakhah and communal organization, in The Laws of the Damascus Document: Sources, Tradition, and Redaction (Leiden: Brill, 1998). See also Schiffman, Sectarian Law in the Dead Sea Scrolls, 157. 25. See, for example: Lawrence H. Schiffman, “The Dead Sea Scrolls and Rabbinic Halakhah,” in The Dead Sea Scrolls as Background to Postbiblical Judaism and Early Christianity, ed. James Davila, 3–24 (Leiden: Brill, 2003). 26. This is not to say that the Mishnah never quotes Scripture. Verses from the Torah appear in the Mishnah quite frequently. But in most of these cases the Mishnah actually quotes a midrash. Most notable are the midrashic passages embedded in the Mishnah, like the 8th chapter of m. Sotah, m. Ma’aser Sheni 5:10–13 and m. Yabamot 12:6. (See Chanoch Albeck, Introduction to the Mishnah [in Hebrew], [Jerusalem and TelAviv: Bialik Institute and Dvir, 1979], 89–90. Cf. Abraham Goldberg, “The early and late Midrash,” Tarbiz 50 [1980–81]: 94–106). What I’m arguing is that the Mishnah as a genre doesn’t base itself on Scripture and its self-presentation is as the authoritative text. 27. To what extent this phenomenon of “manloket” reflects rabbinic polysemy and pluralism is an issue much discussed among scholars. See Daniel Boyarin, Border Lines: The Partition of Judaeo-Christianity (Philadelphia: University of Pennsylvania Press, 2004), 151–201; and Steven D. Fraade’s recent response, “Rabbinic Polysemy and Pluralism Revisited: Between Praxis and Thematization,” AJS Review 31 (2007): 1–40. For earlier discussions of the topic see the bibliography listed by Fraade (ibid.) in nn. 2 and 4. 28. All translations of the Mishnah are based on Herbert Danby, The Mishnah translated from the Hebrew with introduction and brief explanatory notes (Oxford: Clarendon Press, 1933). Slightly adjusted when needed. 29. Moshe Halbertal, People of the Book: Canon, Meaning, and Authority (Cambridge, MA: Harvard University Press, 1997), 50–54. Cf.

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Steven D. Fraade, “Rabbinic Polysemy and Pluralism Revisited: Between Praxis and Thematization,” 20, n. 61. 30. For an up-to-date summary and survey of the research, see Moshe J. Bernstein and Shlomo A. Koyfman, “The Interpretation of Biblical Law in the Dead Sea Scrolls: Forms and Methods,” in Biblical Interpretation at Qumran, ed. Matthias Henze, Studies in the Dead Sea Scrolls and Related Literature, 61–87 (Grand Rapids, MI: W. B. Eerdmans, 2005). 31. There are only a few exceptions to this rule. One such case is the Damascus Document’s accusation of his opponents—the “builders of the barrier”—for practicing polygamy and for permitting an uncle to marry his niece, both of which he considers prohibited (CD, 4:20–5:11). To establish his opposition to polygamy the author produces three biblical citations (Gen. 1:27; Gen. 7:9; and Deut. 17:17) which he believes prove his sectarian halakhic stance. As for the prohibition to marry one’s niece, the author claims, using a unique exegetical principle, that this prohibition is included in the biblical injunction in Leviticus 18.3 which explicitly forbids marrying an aunt (see our detailed discussions of this matter below, pp. 80–95). The other two instances where a Qumranic author openly explicates his exegetical considerations may be found in MMT. In the first case (B: 27–33) the author of MMT interprets Leviticus 17:3 in order to establish his opinion that no slaughtering for secular consumption is permitted within the boundaries of Jerusalem, and in the second case (B: 75–82) he is using a kind of a fortiori argument (though not using any specific term for it) to fortify his position against a type of intermarriage practiced by the priests. What these passages from MMT and the Damascus Document share is their polemical nature, and this is the reason for their authors’ need to reveal their exegetical considerations. In contesting the opinions of their opponents, the Qumran authors conduct the debate in line with their opponents’ rules. These rules require the writer to convince his readers that his exegesis is preferable to others without employing the argument that his exegesis is the correct one because it is based on divine revelation (as he indeed believed—see the discussion in chapter 2 below), an argument that holds no water for his opponents, who deny this claim. For a detailed discussion, see

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Aharon Shemesh and Cana Werman, “Halakhah at Qumran: Genre and Authority,” 119–23. 32. For the reconstruction of the law, see Elisha Qimron, “Biblical Philology and the Dead Sea Scrolls,” 304–7. For the other occurrences of this formula in 4Q251, see the appendix to my article “4Q251: Midrash Mishpatim”; for Fragment 13, see 296; for Fragments 1–2, see 298. 33. Note that the interpreted text is the “halakhah,” not the biblical verse: it does not state that meleºa (mentioned in the verse) is wine and oil and that demaªa (also found in the verse) is grain—just the opposite. 34. Saul Lieberman, Hellenism in Jewish Palestine: Studies in the Literary Transmission, Beliefs, and Manners of Palestine in the First Century b.c.e.– Fourth Century c.e. Texts and Studies of the Jewish Theological Seminary of America 18 (New York: Jewish Theological Seminary of America, 1950), 48. 35. See Aharon Shemesh, Punishments and Sins: From Scripture to the Rabbis [in Hebrew] (Jerusalem: Magnes, 2003), 11–20, and the bibliography listed on p. 12 n. 6. 36. See Aharon Shemesh, Punishments and Sins: from Scripture to the Rabbis, 107–13.

CHAPTER 2. DIVINE REVELATION AND HUMAN EXEGESIS

1. See Naphtali Wieder, The Judean Scrolls and Karaism (London: East and West Library, 1962), 53–57, and Lawrence. H. Schiffman, The Halakhah at Qumran, Studies in Judaism in Late Antiquity 16 (Leiden: Brill, 1975), 22–32. 2. CD 3: 10–16. See the disscusion below. 3. For a detailed discussion of the concepts niglot and nistarot (revealed and hidden) in the Dead Sea Scrolls and rabbinic literature, see Aharon Shemesh and Cana Werman, “Hidden Things and Their Revelation,” Revue de Qumran 18 (1998): 409–27. 4. Damascus Document 4:2 and 6:4 (quoted below).

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5. ‘Pesher’ is a type of literature unique to the Dead See Scrolls. Pesharim are well-organized interpretations of defined biblical text units. Each passage of these pesharim begins by quoting a biblical verse (lema) and then follows with its explication, signaled by the phrase “its pesher ( = interpretation) concerns” or “the pesher of the matter is.” All pesharim treat prophetic biblical texts and they interpret them as referring to their authors’ own time or to the eschaton. Cf. Shani Berrin, “Qumran Pesharim,” in Biblical Interpretation at Qumran, ed. Matthias Henze, 110–33 (Grand Rapids, MI: W. B. Eerdmans, 2005). 6. Jacob Licht, The Rule Scroll: A Scroll from the Wilderness of Judaea, 1QS, 1QSa, 1QSb: Text, Introduction and Commentary [in Hebrew] (Jerusalem: Mossad Bialik, 1965), 177. 7. I understand the phrase “and by what the prophets have revealed by his Holy Spirit” to mean that the words of the prophets are included in the corpus to be studied. Indeed, I find that for the sect prophetic statements constituted an authoritative source for the derivation of laws. For example, the Damascus Document 10:19: “He shall not talk about the work and the task to be done the next morning,” whose phraseology is derived from Isaiah 58:13. See Schiffman, The Halakhah at Qumran, 96 and n. 53. The verse from Isaiah was also used by the Rabbis to derive laws relating to the Sabbath. See b. Shabbat. 113a. For a general treatment of the use of prophetic material for the derivation of halakhah by the Rabbis, see Ephraim E. Urbach, “Halakhah and Prophecy” [in Hebrew], Tarbiz 18 (1947): 1–27, and The World of the Sages: Collected Studies [in Hebrew] (Jerusalem: Magnes, 1988), 21–47. 8. Yonah Frenkel, The Ways of Agada and Midrash [in Hebrew], 2 vols. (Givatayim: Yad laTalmud, 1991), 2:480. Though it might be that Frenkel exaggerated in his claim that the Rabbis didn’t have any social limitation on learning and interpreting the Torah, nevertheless, he is no doubt right in portraying the Rabbis as dissociating themselves from prophecy. (As for the tradition about Rabbi Akiva using semiprophetic hermeneutic techniques, see the discussion by Shlomo Naeh “The Script of the Torah in Rabbinic Thought (B): Transcriptions and Thorns” [in Hebrew], Lšonenu, 71 (2009): forthcoming.

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9. See b. Bava Mets’iªa 59b, y. Moed Katan 3.1, 81d. Through the years, this story has gained intensive scholarly attention. For a survey of early scholarly treatment of the story, see the extensive list in Jeffrey Rubenstein, Talmudic Stories: Narrative Art, Composition, and Culture (Baltimore: Johns Hopkins University Press, 1999), 314–15 and 24 nn. 1–3. For more recent scholarship, see Vered Noªam, “Traces of Sectarian Halakhah in the Rabbinic World,” in Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls. Proceedings of the Eighth International Symposium of the Orion Center . . . January 2003, ed. Steven D. Fraade, Aharon Shemesh, and Ruth A. Clements, 83–84 (Leiden: Brill, 2006). 10. For Rabbi Eliezer as the bearer of “old” traditions, see Yitzhak D. Gilat, R. Eliezer ben Hyrcanus: A Scholar Outcast (Ramat-Gan: Bar-Ilan University Press, 1984), and Noªam, “Traces of Sectarian Halakhah.” 11. In the Jerusalem Talmud’s version, the story is being told by the sugia’s editors in Aramaic, while in the Bavli, the tradition is presented as a baraita. Even in the latter case, it still can be argued (though I’m not of this view) that this is a fictitious baraita created by the editors. 12. Y. Horayot 1:1 [48d] has a different, inverse version of this homily: “Should we conclude that even when they tell you on the right that it is left and on the left that it is right you ought to obey them!? Scripture says: ‘to walk on the right or the left’ to teach you that you ought to listen to them only when they tell you on the right that it is right and on the left that it is left.” On the contradiction between these two versions of the midrash, see Shlomo Z. Havlin, “The Division into Historical Periods in Halakhic Literature,” in Studies in Talmudic Literature: Prof. Saul Lieberman Jubilee Volume (Jerusalem: Israel Academy of Sciences, 1982), 164 n. 71. Cf. Daniel R. Schwartz, “Law and Truth: On QumranSadducean and Rabbinic Views of Law,” in The Dead Sea Scrolls: Forty Years of Research, ed. Devorah Dimant and Uriel Rappaport, 234, n. 15 (Leiden and New York: E. J. Brill; Jerusalem: Magnes Press and Yad Izhak Ben-Zvi, 1992). 13. Yigael Yadin, The Temple Scroll: English and Hebrew, 3 vols. in 4 (Jerusalem: Israel Exploration Society, Institute of Archaeology of the Hebrew University of Jerusalem, Shrine of the Book, 1983), 2:251.

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14. Josephus, Antiquities of the Jews 13.10.6 (13.297). 15. See Menahem Kister, “Marginalia Qumranica” [in Hebrew], Tarbiz 57 (1988): 315 and nn. 3 and 4. 16. The midrash (Sifre Deuteronomy 178) was apparently aware of the problem and therefore suggests not reading the biblical “Now if you should say in your heart” in a conditional sense: not “And should you ask yourself: how can we know,” but rather as a fact—“When you ask yourself.” Compare Maimonides, Mishne Torah, Hilkhot Yesode HaTorah, ch. 9. 17. The translation reflects the accurate reading of the Talmud suggested by Saul Lieberman in Hellenism in Jewish Palestine: Studies in the Literary Transmission, Beliefs, and Manners of Palestine in the First Century b.c.e.–Fourth Century c.e. (New York: Jewish Theological Seminary of America, 1950), 17–18. The Talmud reads: “hayah lo (he had) kiboset,” which, as Lieberman explains, has to be read: “haya lokibost” in one word, which is a corrupted form of the Greek logokle pj th˜ = plagiarist. 18. Surely, a partial change in the halakhah is a legitimate possibility. In this case, as well, the prophet functions as a sage. 19. “4Q375 (apocrMosesa),” ed. John Strugnel, in Qumran Cave 4.XIV: Parabiblical Texts, Part 2, ed. Magen Broshi et al., Discoveries in the Judaean Desert 19, 111–36 (Oxford: Clarendon Press, 1995). See also his article “Moses-Pseudepigrapha at Qumran. 4Q375, 4Q376, and Similar Works,” in Archaeology and History in the Dead Sea Scrolls, ed. Lawrence H. Schiffman, 221–34 (Sheffield, England: JSOT Press, 1990). 20. See also Gershon Brin, Studies in Biblical Law: From the Hebrew Bible to the Dead Sea Scrolls, trans. Jonathan Chipman, Journal for the Study of the Old Testament Supplement, series 176 (Sheffield, England: JSOT Press, 1994). 21. See Ephraim A. Urbach, “When Prophecy Ceased?” [in Hebrew], Tarbiz 17 (1946): 1–11, and Chaim Milikovsky, “The End of Nevuºa and the end of Mikra” [in Hebrew], Sidra 10 (1994): 83–94. 22. See Jacob Licht’s notes on this verse in The Rule Scroll, 190; Brin, Studies in Biblical Law, 158–60.

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23. The parallel baraita is to be found in t. Hagiga, 2, 9. 24. This is the version recorded in mss. Munich and Herzog, as in the parallel baraita in t. Hagiga (see previous note). The printed edition has: “Originally there were not many disputes.” See our discussion below near to note 28. 25. Gedalyahu Alon, in The Jews in Their Land in the Talmudic Age (Tel Aviv: Hakibutz Ha-meuchad, 1952), 121–24, although he reads this baraita as an idealistic depiction of the Sanhedrin functioning, still argues in favor of its basic historical accuracy. So also Shmuel Safrai, “Jewish Self-government,” in The Jewish People in the First Century: Historical Geography, Political History, Social, Cultural and Religious Life and Institutions, ed. Shmuel Safrai and Menachem Stern, 2 vols. (Assen: Van Gorcum, 1974): “The Sanhedrin was the principal institution of national self-government during the period of the Second Temple” (1:379–80). Most contemporary scholars reject this naïve reading of rabbinic sources. Though such an institution did exist, its role and function was most probably much more limited than that described above. See E. P.Sanders, Judaism: Practice and Belief, 63 bce–66 ce (London: SCM Press; Philadelphia: Trinity Press International, 1992), 458–90; and David Goodblatt, The Monarchic Principle (Tübingen: J. C. B. Mohr, 1994), 77–130. 26. But see p. 60. 27. See the thorough discussion by Menahem Kahana of this mishnah in “On the Fashioning and Aims of the Mishnaic Controversy” [in Hebrew], Tarbiz 73 (2003): 51–64, esp. 60–61 and n. 49. 28. Shlomo Naeh, “Study of Mishna Makkot 1:4–6, and Its Talmud” [in Hebrew], in Netiªot Ledavid, Jubilee Volume for David Weiss Halivni, ed. Yaªakov Elman et al. , 109–25 (Jerusalem: Orchot, 2004). See also the appendix by Jonathan Price, 127–30. 29. B. Eruvin: 6b–7a; Hulin: 44a, y. Berakhot, 1:7 (3b–c). For a survey of modern commentators, see Moshe Benovitz, Talmud Ha-Igud: BT Berakhot Chapter I [in Hebrew] (Jerusalem: Ha-Igud le-farshanut ha-Talmud, 2006), 512–14 and n. 11. See also Benovitz’s own suggestion in n. 13.

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30. Chaim Rabin, Qumran Studies (London: Oxford University Press, 1957), 105; Schiffman, The Halakhah at Qumran, 69–70 and n. 312. 31. Admittedly, the Tosefta do use the term “ªomdim le-minyan” (see t. Sanhedrin, 7:1; 9:2). Nevertheless, it is not implausible that this is a secondary use of the term, and it is Koufmann’s manuscript of the mishnah that preserves the original form of the term. It should also be noted that in the context of the mishnah, it might even be that no actual counting ever takes place. Mishna 5 describes the last phase of a long judicial process. The previous mishnah deals with the interrogation of the witnesses and concludes that “if they (the judges) found him innocent, they set him free; otherwise, they left his sentence over until the morrow. [In the meantime] they went together in pairs . . . and discussed the matter all the night, and early in the morrow they came to the court. He that favored acquittal says: ‘I declared him innocent [yesterday] and still declare him innocent’; and he that favored conviction says: ‘I declared him guilty [yesterday] and still declare him guilty.’ He that had favored conviction may now acquit, but he that favored acquittal may not retract and favor conviction. If they erred in the matter, the scribes of the judges must put them in remembrance. If they all found him innocent, they set him free, otherwise “ªomdim ªal ha-minyan.” From this account, we know that the individuals’ opinions were recorded by the court’s scribe the day before the final decision, and therefore the term “ªomdim ªal ha-minyan” may very well mean that the scribes looked into their notes and pronounced the verdict, but no actual ceremony of voting took place. 32. For the Hebrew of this and the following quotations from 1QS and 4QSb, see Appendix, no. 8. The use of the noun “lot” (goral), here and below doesn’t mean that the decision was made by lottery. The phrase “the lot comes out” in DSS simply means “verdict” or “decision.” See: J. Licht, The Rule Scroll: A Scroll from the Wilderness of Judaea, 1QS, 1QSa, 1QSb: Text, Introduction and Commentary (Jerusalem: Mossad Bialik, 1965) 123. 33. Albert I. Baumgarten, “The Zadokite Priests at Qumran: A Reconsideration,” Dead Sea Discoveries 4 (1997): 137–56 (esp. 152–53). 34. 4QSb 4 3, and 4QSd 1i 2. See Rule of the Community, ed. James H.

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Charlesworth, vol. 1 of The Dead Sea Scrolls: Hebrew, Aramaic, and Greek Texts with English Translations (Tübingen: J. C. B. Mohr [Paul Siebeck]; Louisville: Westminster/John Knox Press, 1994), 63 and n. 6. 35. In this I differ slightly from Baumgarten’s depiction of the situation. 36. See also the discussion above in chapter 1. 37. The cases are: an animal that was found to be trefah, or was slaughtered as an offering to idols; a red cow, or an ox that was condemned to be stoned, or a heifer whose neck was to be broken (m. Hullin 5:3, regarding the law of “it and its young”) and an animal that was found to be trefah, or was slaughtered as an offering to idols, or an unconsecrated (hullin) beast that has been slaughtered in the Temple court, or an animal offering slaughtered outside, or a wild animal or a bird that was condemned to be stoned (6:2, with regard to the law of covering the blood). 38. This is the Babylonian version of the mishnah as the amoraim (the Talmud’s sages) had it as reflected from the sugia (BT Hulin 85a) quoted below. The manuscripts of Koufmann, Parma, and Cambridge, all representatives of the Palestinian version of the mishnah, have in the first mishnah (Hulin 5:3) an explicit dispute between Rabbi Meir and Rabbi Shimon (as also is evident from the quotation of the mishnah in Sifra [Emor, Ch. 8:8] and t. Hulin 5:2). Yaakov Nahum Epstein believes that the Bavli represents the original version of Rabbi Judah the Prince and that the versions of the manuscripts of the mishana are emended versions borrowed from the Sifra and Tosefta. Jacob N. Epstein, Introduction to the Mishnaic Text [in Hebrew] (Jerusalem: Magnes, 2000), 1144; idem, Studies in Talmudic Literature and Semitic Languages [in Hebrew], 3 vols. (Jerusalem: Magnes, 1983), 2:34–46. I think it is better to assume that as in some other cases, the version recorded in the manuscripts of Koufmann, Parma, and Cambridge represents the first edition of the Mishnah. It was only later that Rabbi Judah the Prince rephrased the mishnah so as to present the halakhah according to Rabbi Shimon in one case and according to Rabbi Meir in the other. This second edition was brought to Babylon and become the standard there.

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39. M. Eduyot. 1:5 (quoted above p. 34). 40. See Sifra achare 8:3 [ed.Wiess 92a]; Sifre Deuteronomy, 241 [ed. Finklstein 271]. 41. Translation is mine based on Jacob Z. Lauterbach, Mekhilta de-Rabbi Ishmael: A Critical Edition with an English Translation, 3 vols. (Philadelphia: Jewish Publication Soceity, 1953), 3:34. 42. The last line in the printed editions of the Mekhilta read: “As there (in Leviticus) it means the death penalty by strangulation, so here too it refers to death by strangulation.” See Lauterbach edition (note 41 above). 43. Translation taken from John T. Townsend, Midrash Tanh.uma: S. Buber Recension, Translated into English with Introduction, Indices, and Brief Notes, 3 vols. (Hoboken, NJ: Ktav, 1989–2003), 3:10. 44. There are a few cases that may been seen as presenting such phenomena. For example, there are the statements in the Damascus Document 7:6, “But if they live in camps,” and 13:3, “If he is not qualified in these rules.” The use of “if” implies that this is a piece of legislation for a secondary situation. Compare the Temple Scroll (49:5–10) and Yadin’s comment thereon.

CHAPTER 3. SCRIPTURE VERSUS TRADITION

1. Joseph. M. Baumgarten, “Tannaitic Halakhah and Qumran: A Re-evaluation,” in Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls. Proceedings of the Eighth International Symposium of the Orion Center . . . January, 2003, ed. Steven D. Fraade, Aharon Shemesh, and Ruth A. Clements, 1–11 (Leiden: Brill, 2006). See also his article, “Early ‘Halakhic’ Tradition in the Dead Sea Scrolls” [in Hebrew], in The Qumran Scrolls and Their World, ed. Menachem Kister (Jerusalem: Yad Ben-Zvi, 2009). 2. See Baumgarten, “Early ‘Halakhic’ Traditions”; Lawrence H. Schiffman, The Halakhah at Qumran, Studies in Judaism in Late Antiquity 16 (Leiden: Brill, 1975), 84–87.

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3. This seems to be the understanding of the sugia in y. Sheviªit 1:1 (33a). 4. See Yitzhak D. Gilat, Studies in the Development of the Halakhah [in Hebrew] (Ramat-Gan: Bar-Ilan University Press, 1992), 259–61, esp. the last paragraph. 5. Baruch J. Schwartz, The Holiness Legislation: Studies in the Priestly Code [in Hebrew] (Jerusalem: Magnes 1999), 303 nn. 3, 13. 6. The Rabbis’ deviation from the plain meaning of “lo teªolel” as parallel to “lo tekhale” is manifested by the very fact that the Tosefta (Peºah 2:13) demands that both gifts, Peºah and ªolelot, will be given to the poor from the vineyard. 7. See the detailed discussion by Jeffrey F. Rubenstein, “On Some Abstract Concepts in Rabbinic Literature,” Jewish Studies Quarterly 4 (1997): 33–73. 8. Erik Larson, Manfred R. Lehmann, and Lawrence Schiffman, eds., “4QHalakha A,” in Qumran Cave 4.XXV, ed. Joseph M. Baumgarten et al., Discoveries in the Judaean Desert 35, p. 39 (Oxford: Clarendon Press, 1999). The text provided here is according to Elisha Qimron’s new reading; the reconstruction and translation are mine. 9. Menahem Kister, in “Studies in 4Q Miqsat Ma’ase HaTorah and Related Texts: Law, Theology, Language and Calendar” [in Hebrew], Tarbiz 68 (1999): 333–34, notes the similarities in language and phraseology between some of the Qumran halakhot and rabbinic midrashim that point to a common origin. 10. Larson, Lehman, and Schiffman, eds., “4QHalakha A,” 40. One may suggest that the words “that did not live” in the scroll are to exclude an animal torn by a wild beast, but still alive, which—according to this reading—may be slaughtered and consumed. Against this reading is the fact that the noun trefah in all its occurrences in the Bible refer to a dead animal, thus the phrase “trefah that did not live” is a tautology. 11. See Menachem Kister, “Some Aspects of Qumranic Halakhah,” in The Madrid Qumran Congress: Proceedings of the International Congress on the Dead Sea Scrolls, March 1991, 2 vols., ed. Julio Trebolle Barrera and Luis Vegas Montaner, 1:576 (Leiden: Brill, 1992).

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12. See above, chapter 1 n. 31. 13. The sects’ opponents are referred to by the author as “the builders of the barriers” who follow the guidance of “the spitter ( = preacher— metif ).” This figure should be identified with “the man of mockery who sprinkles (hetif ) upon Israel waters of falsehood and led them astray in a chaos without a way,” mentioned earlier in the scroll (CD 1:14). Most scholars agree that this refers to the Pharisees and their leader. See Menchem Kister, “Some Aspects” (note 11 above). Philip Davies is of the opinion that CD 4:19 refers to all Israel outside the community. See Philip R. Davies, The Damascus Covenant: An Interpretation of the “Damascus Document,” JSOT Supplement Series 25 (Sheffield, England: JSOT Press, 1983), 113. 14. Samuel Krauss, “Die Her zwischen Onkel und Nichte,” in Studies in Jewish Literature in Honor of Kaufmann Kohler (Berlin: G. Reimer, 1913), 165–75; Louis Ginzberg, An Unknown Jewish Sect (New York: Jewish Theological Seminary of America, 1976), 23–24; Chaim Rabin, Qumran Studies (London: Oxford University Press, 1957), 91–93. Compare Louis Epstein, Marriage Laws in the Bible and the Talmud (Cambridge, MA: Harvard University Press, 1942), 251. 15. Solomon Schechter, Documents of Jewish Sectaries, vol. 1, Fragments of A Zadokite Work (Cambridge: University Press, 1910), 37 n. 21. 16. Indeed, Sifre Deuteronomy, 290 (Finklstein ed., 309) uses the case of “He is old and she is a girl” to exemplify what an inappropiate match is. It is probably not a coincidence that t. eduyot 3:2 records Rabbi Eliezer as saying, “A priest should not take a wife before she grows up.” See Adiel Schremer, “Kinship Terminology and Endogamous Marriage in the Tannaitic and Talmudic Periods” [in Hebrew], Zion 60 (1995): 13 n. 35. 17. The full list of these cases may be found in Schremer’s “Kinship Terminology and Endogamous Marriage,” 18. The most famous among them is Herod himself, who was married to his niece. 18. Such is the view of Adolf Buchler in some of his writings. See “Schechter’s Jewish Sectaries,” Jewish Quarterly Review 3 (1912–13): 438, and Studies in Jewish History (London: Oxford University Press, 1956), 64–98, and later of Zeºev Falk, “Endogamous Marriage in Israel”

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[in Hebrew], Tarbiz 32 (1963): 19–34. Moshe D. Herr has embraced this view in “The Continuum in the Chain of Torah Transmission” [in Hebrew], Zion 44 (1979): 23–29. See his full bibliographic list in n. 64. 19. The translation is taken from James C. VanderKam, The Book of Jubilees, CSCO 511, Scriptores Aethiopici 88 (Leuven: Peeters, 1989), 275. 20. According to rabbinic tradition, they (the man and his daughterin-law) are to be put to death by stoning (m. Sanhedrin 7:4). 21. See Aharon Shemesh, “The Tannaitic Innovation of the Death Penalty by Strangulation” [in Hebrew], Bar-Ilan Law Studies 17 (2002): 514–15. 22. In the following analysis, I was greatly influenced by the work of Louis Epstein in Marriage Laws in the Bible and the Talmud, 254–56, although my conclusions differ from his substantially. Some of the prohibited unions are explicitly directed to women as well as to men. Thus, the prohibition on marrying one’s sister includes the prohibition directed to women against marrying their brothers. Similarly, the injunction not to lie with one’s father’s wife’s daughter (Leviticus 20:11) applies equally to women. A feminine reading of the verse implies that a woman shouldn’t marry her mother’s husband’s son, which is actually the same as the explicit prohibition in this verse. This is because she is his father’s wife’s daughter. Careful analysis of the biblical list of forbidden unions reveals that the only extra prohibitions that stem from the Damascus Document’s principle of rereading the biblical injunctions from the women’s point of view are the two to be dealt with below. 23. See the appendix of my article “4Q251: Midrash Mishpatim,” Dead Sea Discoveries 12 (2005): 296. 24. See my article “The Dispute between the Pharisees and the Sadducees on the Death Penalty” [in Hebrew], Tarbiz 70 (2000): 17–33. 25. Jacob Sussman, “The History of Halakhah and the Dead Sea Scrolls—Preliminary Observation on Miqsat Ma’ase Ha-Torah (4QMMT),” Tarbiz 59 (1990). 26. All translations of the Sifra (slightly emended when needed) are taken from: Jacob Neusner, Sifra: An Anaytical Translation, vol. 3 (At-

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lanta, Georgia: Scholars Press, 1988). Current passage is on pp. 81–82. For a similar use of this principle (with regard to punishments) see: Sifra Kedoshim pereq 11 (ibid., 151). The passages in the Sifra that expound the prohibitions of incestuous and other forbidden sexual relations in Achare Mot (Leviticus 18:7–18, 20–23) and Kedoshim did not originally belong to the Sifra that originated in the school of Rabbi Akiva. These passages, known as Mekhilta de-arayot, are taken from a second midrash on Leviticus from the school of Rabbi Yishmael. See Menahem I. Kahana, “The Halakhic Midrash,” in The Literature of the Sages (Second Part), ed. Shmuel Safrai, Zeev Safrai, Joshua Schwartz and Peter J. Tomson, Compendia Rerum Iudaicarum ad Novum Testamentum, 86–87 (Assen: Royal Van Gorcum and Fortess Press, 2006). 27. Saul Lieberman, Tosefta Ki-fshutah, vol. 8 (New York: Jewish Theological Seminary of America, 1993), 915. For a different view, see Adiel Schremer “Kinship Terminology and Endogamous Marriage,” and idem, “Qumran Polemic on Marital Law: CD 4:20–5:11 and Its Social Background,” in The Damascus Document, a Centennial of Discovery, Proceedings of the Third International Symposium of the Orion Center . . . 1998, ed. Joseph M. Baumgarten, Esther G. Chazon, and Avital Pinnick, 147–60 (Leiden: Brill, 2000). 28. Louis Ginzberg, An Unknown Jewish Sect, 32–33. See also Chaim Rabin, The Zadokite Documents, 2nd rev. ed. (Oxford: Clarendon Press, 1958), 26 and 33. 29. I first suggested this analysis in my article, “Scriptural Interpretations in the Damascus Document and their Parallels in Rabbinic Midrash,” in The Damascus Document, A Centennial of Discovery, 161– 75. The current, improved presentation owes much to the reading of Adiel Scheremer in “Qumran Polemic on Marital Law,” though we disagree on the conclusions. 30. Ephraim E. Urbach,”The Derashah as a Basis of the Halakhah and the Problem of the Sofrim” [in Hebrew], Tarbiz 27 (1958): 166–82. 31. Adiel Schremer, “‘T]he[y] did not read in the sealed book’: Qumran Halakhic Revolution and the Emergence of Torah Study in Second Temple Judaism,” in Historical Perspectives: From the Hasmoneans to

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Bar Kokhba in Light of the Dead Sea Scrolls, ed. David Goodblatt, Avital Pinnick, and Daniel R. Schwartz, 105–26 (Leiden: Brill, 2001). See also Paul Mandel, “Scriptural Exegesis and the Pharisee in Josephus,” Journal of Jewish Studies 58 (2007): 19–32. Mandel carefully analyzes Josephus’s account of the Pharisees and firmly establishes that “there is no evidence from Josephus that the Pharisees or the ‘sages’ derived their knowledge of the laws from an in-depth analysis of the text of Scripture” (26). 32. Hayim Soloveitchik, “Rupture and Reconstruction: The Transformations of Contemporary Orthodoxy,” Tradition 28 (1994): 64–130. 33. See Gilat, Studies in the Development of the Halakhah, 90 n. 13. Two points of interest are worth mentioning here. There are only a few stories in Talmudic literature of the actual implementation of the death penalty by a Jewish court, and one of them concerns riding a horse on the Sabbath (b. Yevamot 90b; y. Hagigah 2:2 [78a]). And the Sifra (achare ch. 7:9) has a list of actions that are prohibited on the Sabbath, though they don’t constitute “work.” In it, riding a horse and sailing a boat are mentioned together, exactly as in Jubilees 50:2. 34. Gilat, Studies in the Development of the Halakhah, 93–94. 35. See the sayings of Rabbi Abin (b. Eruvin 96a): “Whenever Scripture uses one of the words ‘hishamer,’ ‘pen,’ and ‘al,’ this is a negative commandment.” Compare Mekhilta De Rashbi 32:13 (Epstein Melamed ed., p. 217); Sifra achare ch. 9:3. 36. For a full discussion on this issue, see my article “The Development of the Terms ‘Positive’ and ‘Negative’ Commandments” [in Hebrew], Tarbiz 72 (2003): 133–50. According to my analysis, the school of Yishmael represents the “old,” Pharisaic, tradition-based legal system, which differs sharply from the text-based legal system of the Sadducees and the scrolls. I do not agree with Azan Yadin, who in “4QMMT, Rabbi Ishmael, and the Origins of Legal Midrash,” Dead Sea Discoveries 10 (2003): 131–49, argues that Rabbi Yishmael’s midrashim marginalize extra-Scriptural traditions, a characteristic that would place them in close relation to the scrolls. The statement by Rabbi Yishmael that “in three places halakhah bypasses Scripture” (Sifre Deuteronomy 122 [ed. Finkelstein, p. 180]), doesn’t mean that except for these three

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cases, Scripture always prevails over tradition, as Yadin thinks. On the contrary. Rabbi Yishmael is of the view that in principle tradition overrides Scripture, but that in all cases, he finds it easy to reconcile his legal tradition with Scripture—except in these three places, where he has to admit that tradition contradicts the Torah. Nevertheless, even in these cases, halakhah prevails and bypasses Scripture. This has nothing to do with the fact that in some cases the actual halakhic traditions of Rabbi Yishmael are similar to those found in the scrolls, because these cases belong to the developmental model I presented in the Introduction. 37. On this matter, see Joseph M. Baumgarten, Studies in Qumran Law (Leiden: Brill, 1977), 39–74, and Lawrence H. Schiffman, Reclaiming the Dead Sea Scrolls (Philadelphia and Jerusalem: Jewish Publication Society, 1994), 282. Shmuel Safrai also treated the avoidance by the Essenes and the sectarians of making pilgrimage to the Temple, including this among his proofs that pilgrimage was not seen as obligatory during that era. Shmuel Safrai, In Times of Temple and Mishnah: Studies in Jewish History [in Hebrew], 2 vols. (Jerusalem: Magnes, 1994) 1:51–53, and “The Temple,” in The Jewish People in the First Century: Historical Geography, Political History, Social, Cultural and Religious Life and Institutions, 2 vols., ed. Shmuel Safrai and Menahem Stern, 2:899–900 (Assen: Van Gorcum, 1976). I do not view this conclusion as inevitable. The avoidance of observing this obligation does not indicate that it was not seen as binding, but rather that these groups saw themselves as prevented from its fulfillment, somewhat on the lines of the Talmudic principle: “The Merciful One exempted one under duress from obligations.” 38. Joseph M. Baumgarten, Qumran Cave 4.XIII: The Damascus Document (4Q266–273), Discoveries in the Judaean Desert 18 (Oxford: Clarendon Press, 1996), 147. The text presented here is a composite text of the various documents and reflects the new reading and reconstruction suggestions by Elisha Qimron. 39. For a detailed analysis of this passage, see my article “The History of the Creation of Measurements: Between Qumran and the Mishnah,” in Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls. Proceedings of the Eighth International Symposium of the Orion Center

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. . . January 2003, ed. Steven D. Fraade, Aharon Shemesh, and Ruth A. Clements, 152–56 (Leiden: Brill, 2006). 40. The meaning of this halakhah, “Let no man deviate by offering from the lambs (la-seh) [on]e out of a hundred,” is obscure. The readings of the final three words and the heh of la-seh based on an associative link with Ezekiel 45:15, “And [the due] from the flock shall be one animal from every two hundreds,” are doubtful. Accordingly, Joseph Baumgarten suggests that the halakhah warns against giving more than one two-hundredth; this so the owner will not diverge from the accepted practice and give one one-hundredth. This interpretation is difficult in and of itself and especially in light of the suggested reading provided here, which divorces the contents of the passage from Ezekiel. 41. Baumgarten, Qumran Cave 4.XIII, 12–13. The text presented here is an improved reading by Elisha Qimron. See my “The History of the Creation of Measurements,” 158–59. 42. The ancient methods of oil and wine production were very similar, with both employing vats. See, for example, Joel 2:24: “And vats shall overflow with new wine and oil” (see also Micah 6:15). In later, more advanced methods, the two processes became differentiated. In mishnaic Hebrew, “gat” is usually the place where wine is produced and “bet ha-bad” refers to the olive press. See Rafi Frankel, Wine and Oil Production in Antiquity in Israel and Other Mediterranean Countries, JSOT/ASOR Monograph Series 10 (Sheffield, England: Academic Press, 1999), 185–86. Indeed, Tannaitic sources also refer to “gat” for oil. See t. Terumot.3:6 (Lieberman ed., 117): “One who separates the heave-offering [required] of the [oil in the] vat must direct his intention toward that which is in the peels,” m. Peºah 7:1; and the baraita in b. Pesahim 20b: “If a cask of [wine of clean] terumah is broken in the upper vat, while [in] the lower there is unclean hullin. . . .” Compare Saul Lieberman, Tosefta ki-fshutah, Zeraim, part 1 (Jerusalem: Jewish Theological Seminary of America, 1993), 324 and nn. 16–17. Regarding Lieberman’s comments, see David Rosenthal, “Gat Shemanim, Gad Shemanim, Gad Yavan” [in Hebrew], Cathedra 67 (1993): 4 and n. 9.

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43. Schremer, “‘T]he[y] did not read in the sealed book,” 67–68. 44. Y. Bikkurim 3:1 65c. 45. Y. Peºah 1:1, 15b. 46. A similar suggestion was made by Rudolf Leszynsky back in 1912. See his Die Sadduzäer (Berlin: Mayer & Müller, 1912), 80, 109–41. 47. See Leszynsky (ibid.), 13–14.

CHAPTER 4. “THE FOUNDATION OF THE CREATION” AND THE “LAWS WRITTEN ON THE HEAVENLY TABLETS”

1. Daniel R. Schwartz, “Law and Truth: On Qumran-Sadducean and Rabbinic Views of Law,” in The Dead Sea Scrolls: Forty Years of Research, ed. Devorah Dimant and Uriel Rappaport, 229–40 (Leiden: E. J. Brill; Jerusalem: Magnes Press and Yad Izhak Ben-Zvi, 1992). 2. Yochanan Silman, “Halakhic Determination of a Nominalistic and Realistic Nature: Legal and Philosophical Considerations” [in Hebrew], Dine Yisaral 12 (1984–85): 249–66; see esp. 251. 3. See Yaªakov Elman, “Some Remarks on 4QMMT and the Rabbinic Tradition; Or, When is a Parallel not a Parallel?” in Reading 4QMMT: New Perspectives on Qumran Law and History, ed. Moshe J. Bernstein and John Kampen, 124–25 (Atlanta, GA: Scholars Press, 1996); and Jeffrey F. Rubenstein, “Nominalism and Realism in Qumranic and Rabbinic Law: A Reassessment,” Dead Sea Discoveries 6, no. 2 (1999): 157–83. 4. Indeed, Schwartz has responded to some of the critiques by updating and reviewing his depiction of the Rabbinic “nominalism.” See his article “Kal VaChomer as a Sadduccean Realism” [in Hebrew], Massechet 5 (2006): 145–56. 5. Cana Werman, “The ‘Torah’ and the ‘Te’udah’ Engraved on the Tablets,” Dead Sea Discoveries 9 (2002): 86. 6. Menaham Kister, “Two Formulae in the Book of Jubilees” [in Hebrew], Tarbiz 70 (2001): 289–300.

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7. This is the view of Rabbi Judah in m. Hullin, 7:6. 8. While it is not clear whether the Septuagint understood the commandment as addressed to the sons of Jacob or to the Israelites, it is quite clear that according to Rabbi Judah (ibid.) the sons of Jacob were prohibited from eating the thigh muscle. 9. 4Q158, frg. 1–2; John Allegro, Qumran Cave 4 I (4Q158–4Q186), Discoveries in the Judaean Desert 5 (Oxford: Clarendon Press, 1969), 1. 10. See Werman, “The ‘Torah’ and the ‘Te’udah,’” 481 n. 33. 11. 4Q416, 2,3,20; 4,2,1, in John Strugnell and Daniel J. Harrington, Qumran Cave 4 XXIV; Sapiental Texts, Part 2, Discoveires in the Judaean Desert 34 (Oxford: Clarendon Press, 1999), 110, 123. 12. For the translation of ha-molad as “horoscope” and for a comprehensive analysis of the root mld, see Menahem Kister, “Physical and Metaphysical Measurements Ordained by God in the Literature of the Second Temple Period,” in Working the Bible: Apocryphal and Related Texts at Qumran, ed. Esther G. Chazon, Devorah Dimant, and Ruth A. Clement, 173 (Lieden: Brill, 2005); Moshe Morgenstern, “The Meaning of Bet Moladim in the Qumran Wisdom Texts,” Journal of Jewish Studies 51 (2000): 141–44. Compare Joseph M. Baumgarten, “Qumranic and Astrological Terminology in 4Q Instructions” [in Hebrew], Tarbiz 71 (2002): 321–28. 13. Similar ideas are to be found in rabbinic literature, as well. See b. Sota 2a ( = Sanhedrin 22a) and Lev. Rabba 29:8 (ed. Margaliot, p. 678). 14. For a detailed analysis, see my article: “4Q271,3: A Key to Sectarian Matrimonial Law,” Journal of Jewish Studies 49 (1998): 244–63. 15. See Geza Vermes, “Sectarian Matrimonial Halakhah in the Damascus Rule,” Journal of Jewish Studies 25 (1974): 197–202; Joseph A. Fitzmyer, “Divorce among First-Century Palestinian Jews,” Eretz-Israel 14 (1978): 103–10; Gershon Brin, “Divorce at Qumran,” in Legal Texts and Legal Issues, ed. Moshe Bernstein, Florentino Garcia Martinez, and John Kampen, 231–44 (Leiden: Brill 1997). See also the bibliography listed in Magen Broshi, ed., The Damascus Document Reconsidered (Jerusalem: Israel Exploration Society, 1992), 66. What has been disputed by scholars is the exact meaning of this phrase “be-nayehem” (in their

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lifetime.) Some argue that the Damascus Document totally bans any second marriage, even after the death of the spouse. Others hold that the Hebrew “be-nayehem,” which is in the masculine, suggests that the Damascus Document only prohibits remarriage after divorce, but not after the spouse’s death. The accuracy of this stance is now evident from the Temple Scroll 57:17–19, which warns the king against bigamy, but explicitly permits him to remarry in case his wife dies. 16. For a similar statement, see Matthew 19:4–6. 17. See Alexander Rofe, “Family and Sex Laws in Deuteronomy and the Book of the Covenant” [in Hebrew], Bet Miqra 22 (1977): 19–37. 18. The reading and suggested restoration of the texts are according to Jeffrey H. Tigay, “Examination of the Accused Bride in 4Q159: Forensic Medicine at Qumran,” Journal of the Ancient Near Eastern Society 22 (1996): 129–34. For a list of previous publications, see ibid., n. 6; Lawrence H. Schiffman, “Ordinances and Rules,” in The Dead Sea Scrolls: Hebrew, Aramaic, and Greek Texts with English Translation, vol. 1, ed. James H. Charlesworth, 145 (Tübingen: J. C. B. Mohr [Paul Siebeck]; Louisville: Westminster/John Knox Press, 1994). 19. Yadin, in “A Note on 4Q159,” Israel Exploration Journal 18 (1968): 250–52, suggests the restoration “at t[he time]” instead of “on the [day].” 20. Comparison with 4Q270’s “[exce]pt upon examination by reliable women [who have clear knowledge],” makes Tigay’s restoration of “women” (nashim) certain. 21. In “Examination of the Accused Bride,” Tigay surveys the historical evidence for the employment of similar methods to establish virginity, all dating from the medieval period on, positing that the proposed sectarian method was intended as a corrective to the doubtful nature of the scriptural examination of the “cloth.” 22. See Tigay, “Examination of the Accused Bride,” 131 n. 7. 23. For the version of the law in Matthew, see the scholarly survey of Evald Lovestam, “Divorce and Remarriage in the New Testament,” Jewish Law Annual 4 (1981): 47–65. For a general bibliography of this issue, see William D. Davies and Dale C. Allison, A Critical and Exegetical

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Commentary on the Gospel according to Saint Matthew, 3 vols. (Edinburgh: T. & T. Clark, 1997), 3:28–30. 24. See above, note 15. 25. Kister, “Two Formulae in the Book of Jubilees,” 289 and n. 3. 26. See Chanoch Albeck, Das Buch der Jubiläen und die Halacha (Berlin: Siegfried Scholem, 1930), 20. Interestingly, Albeck’s observation has been totally ignored by scholars since the publication of his book in 1930. This is probably due to the singularity of this source and the fact that even here, the idea is expressed only implicitly, and not explicitly. Now that we have the Dead Sea Scrolls at our disposal, quite a few of Albeck’s suggestions that didn’t receive the proper reception at the time should be reevaluated. 27. The same tradition is reflected in Philo’s writings. See Special Laws 3.20. 28. Baruch J. Schwartz, The Holiness Legislation: Studies in the Priestly Code [in Hebrew] (Jerusalem: Magnes, 1999), 138–39. 29. In the printed edtion of the Sifra the opinions of R. Akiva and R.Yishmael are reversed. 30. On this, see the discussion by Moshe Benovitz, BT Shevuoªt III: Critical Edition with Comprehensive Commentary (New York and Jerusalem: Jewish Theological Seminary of America, 2003), 109–13. 31. Davies and Allison, A Critical and Exegetical Commentary on the Gospel according to Saint Matthew, 223. 32. Hippolytus, Refutation of All Heresies, ed. Miroslav Marcovich (Berlin and New York: W. De Gruyter, 1986), 9.27. See Geza Vermes and Martin D. Goodman, The Essenes According to the Classical Sources (Sheffield, England: JSOT Press, 1989), 6 n. 65. 33. Goerge W. E. Nickelsburg, s.v. “Resurrection,” Encyclopedia of the Dead Sea Scrolls, ed. Lawrence H. Schiffman and James C. VanderKam (New York: Oxford University Press, 2000); Shani Berrin, s.v. “Pesharim,” ibid.;. Devorah Dimant, “Resurrection, Restoration, and Timecurtailing in Qumran, Early Judaism and Christianity,” Revue de Qumran 19, no. 4 (2000): 527–48. 34. Rubenstein, “Nominalism and Realism,” 159, based on the dis-

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cussions of Silman in “Halakhic Determination of a Nominalistic and Realistic Nature.” 35. Rubenstein, “Nominalism and Realism,” 179–183.

CHAPTER 5. HALAKHAH FROM QUMRAN TO THE MISHNAH

1. Jacob Sussman, “The History of Halakhah and the Dead Sea Scrolls—Preliminary Observation on Miqsat Ma’ase Ha-Torah (4QMMT),” Tarbiz 59 (1990): 61–64. 2. Yaªakov Elman, “Some Remarks on 4QMMT and the Rabbinic Tradition: Or, When is a Parallel not a Parallel?” in Reading 4QMMT: New Perspectives on Qumran Law and History, ed. Moshe J. Bernstein and John Kampen, 99–128 (Atlanta, GA: Scholar Press, 1996). 3. See Sifre Numbers, 127 [ed. Finkelstein, 165]; m. Eduyot, 6:3; Kelim: 1:5. See also the discusion by Yigael Yadin in The Temple Scroll: English and Hebrew, 3 vols. in 4 (Jerusalem: Israel Exploration Society, Institute of Archaeology of the Hebrew University of Jerusalem, Shrine of the Book, 1983), 1:335. 4. See Stephen Gorason, “Others and Ontra-Jewish Polemic as Reflected in Qumran Texts,” in The Dead Sea Scrolls after Fifty Years, ed. Peter W. Flint and James C. VanderKam, 2:542–43 (Leiden: Brill, 1999); Albert I. Baumgarten, s.v. “Seekers after Smooth Things,” Encyclopedia of the Dead Sea Scrolls, ed. Lawrence H. Schiffman and James C. VanderKam, 875 (New York: Oxford University Press, 2000). Against this explanation, see John P. Meier, “Is There Halaka (the Noun) at Qumran?” Journal of Biblical Literature 122 (2003): 154–55. 5. Though the scroll presents this punishment as derived from Deuteronomy 21:22–23, there is no doubt that this is a manipulation of the verse motivated by political and ideological needs. See the discussion in my Punishments and Sins: From Scripture to the Rabbis [in Hebrew] (Jerusalem: Magnes, 2003), 18–19 and n. 43. 6. Damascus Document 11:21 “And whoever comes to the house of

Notes to Pages 132–139

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prostration . . . let them not interrupt the entire service [and d]ie.” If this restoration is correct, then we have here an additional death penalty in the Damascus Document. 7. The Fast Scroll Scholion to the 4th of Tamuz, according to ms. Parma. See Vered Noªam, Megilat Taªanit: Versions, Interpretation, History with Critical Edition (Jerusalem, Yad Yitshak Ben-Zvi, 2003), 77–78. 8. For the full discussion, see Shemesh, Punishments and Sins, 123– 26.Compare Cana Werman, “Oral Torah vs. Written Torah(s): Competing Claims to Authority,” in Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls. Proceedings of the Eighth International Symposium of the Orion Center . . . January 2003, ed. Steven D. Fraade, Aharon Shemesh, and Ruth A. Clements, 175–97 (Leiden: Brill, 2006). 9. See m. Eduyot. 4:1, 5:1–4; t. Eduyot. 2:6–7. 10. Vered Noªam, “Bet Shammai and Sectarian Halakhah” [in Hebrew], Jewish Studies, Journal of the World Union of Jewish Studies 41 (2002): 45–67; and idem, “Traces of Sectarian Halakhah in the Rabbinic world,” in Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls. Proceedings of the Eighth International Symposium of the Orion Center . . . January 2003, ed. Steven. D. Fraade, Aharon Shemesh, and Ruth A. Clements, 67–85 (Leiden: Brill, 2006). 11. Contra Noªam in “Traces of Sectarian Halakhah,” 67–69. 12. The same distinction exists with regard to the aunt. While the sister of one’s parents is forbidden, whether she is the sister of his father or his mother (Leviticus 18:12–13), the uncle’s wife is forbidden only in case of the father’s brother, and not the mother’s brother (v. 14). 13. See above, ch. 4, n. 26. 14. Sifra, Qedoshim pereq 11 [ed. Weiss, 93b]. 15. See Ishay Rosen-Zvi, “ ’Who will uncover the dust from your eyes?’ Mishnah Sotah 5 and R. Akiva’s Midrash” [in Hebrew], Tarbiz 75 (2007): 95–128. 16. Martin Goodman is the only one who challenges this historical assumption. In “Sadducees and Essenes after 70 CE,” in Crossing the Boundaries: Essays in Biblical Interpretation in Honour of Michael D. Goulder, ed. Stanley E. Porter et al. , 347–56 (Leiden: Brill, 1994), Good-

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man argues that it might well be that the Sadducees and the Essenes continued to exist for another two hundred years or so and that the reason that rabbinic literature fails to mention them is simply because the Rabbis weren’t interested in them. See also idem, “The Function of Minim in Early Rabbinic Judaism,” in Geschichte Tradition Reflexion: Festschrift für Martin Hengel zum 70 Geburtstag, 3 vols., ed. Peter Schäfer, 1:501–10 (Tübingen: J. C. B. Mohr [Paul Siebeck], 1996). 17. See Emil Schurer, The History of the Jewish People in the Age of Jesus Christ, 4 vols., rev. Geza Vermes and Fergus Millar (Edinburgh: T. & T. Clark, 1973), 1:523–24. 18. Shaye J. D. Cohen, “The Significance of Yavneh: Pharisees, Rabbis and the End of Sectarianism,” Hebrew Union College Annual 55 (1984): 27–53. The above description of the traditional historical approach is taken from his introduction. See the bibliographical references there, n. 1. 19. Ibid., 27.

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INDEX OF PRIMARY SOURCES

Leviticus 11:2 15:16–17 17:3 17:13 17:15 18:3 18:6 18:8 18:9 18:10 18:16, 18:17 19 19:9–10 19:9–19 19:11–18 19:17–18 19:23–25 19:24 20:10 20:11

HEBREW BIBLE Genesis 1:27 108, 111, 112, 163–64n31 2:23 112 2:24 110–11, 111, 112 7:9 163–64n31 9:20–21 11 32 109–10 32:33 110 Exodus 12:10 16:36 20:9 21:1–23:19 22:16 22:28 22:28–30 22:31 23:30 31:14–15

98 101 96 28 113 36 27 77 79 96

203

29 79 156–58n40 163–64n31 23 77 163–64n31 90–91 118 137 85 121, 137 85 9, 10, 11 99, 100 75–77 30 30 7 13 67 118

Index of Primary Sources / Leviticus (continued) 20:12 84 20:14 84, 86, 119–20 20:17 86, 123 20:21 121, 122 22:30 98 23:3 96 23:10 101 23:32 98 23:38 18 Numbers 5:10 16–17 18:21–32 19:18 21:18

13 32 156–58n40 129 42–43

Deuteronomy 23 5:12 75 5:13 96 12 22–23 13:1–3 51 14:21 77, 79 17 46 17:8 46 17:10 54 17:17 158–59n3, 163–64n31 18 46, 49 18:20 49 18:21–22 49 20:6 8, 9, 10, 11 22:3 98 22:13–20 114 22:22 67 22:29 113

204

23:11–15 23:24 24:19–22 24:21 25:5–9 29:28 29–30 30:10–11 30:12 Joshua 1:8 Judges 9:27 1 Samuel 25:26

31 24–25, 26 100 76 121 41 41 41 45 105 9–10 24

Isaiah 40:3 40:5 54:16 58:7 62:8–9

43, 44 45 42 92, 93 10

Jeremiah 3:5 28 28:6 28:15

8 50 50 50

Ezekiel 45:15 Joel 2:24 Micah 6:15 Psalms 25:14 Ecclesiastes 2:14 7:10

178n40 178n42 178n42 58, 60

61 47

Index of Primary Sources / NEW TESTAMENT Matthew 22 Mark 12 Luke 20

124 124 124

PSEUDEPIGRAPHA Jubilees 13:25–27 32:2–9 41:25–26 50:12

156–58n40 156–58n40 83–84 97

DEAD SEA SCROLLS CD 1:3–11 1:14 3:9–20 3:12–16 3:12–17 4:18–19 4:19 4:20 4:20–5:11 5:7–11 5:20–6:11 6:21–7:1 6:2–11 8:4–8 9:8 10:14–17 12:14–15 13:15–17

41 173n13 4 42 143 108 173n13 112 163–64n31 80–81, 147 41 92, 93 42, 143 92, 93 24 74 108 117

205

14:12–13 15:12 16:1–2 16:6–9

102 73 73 24, 142

1QHa (Thanksgiving Psalms) 1QpHab (Pesher Habakkuk) 11:4–8 1QS 5:1–3 5:1–4 5:7 5:8–9 5:20 6:7–8 6:8–13 6:15 6:16 6:19 6:26–27 6:13–20 7:11–12 7:12–14 8:10 8:11–16 9:10–11 4Q158 1–2 4Q159 2–4+8:8–10 4Q 171 1–2i:18–19 4Q251 10 12:3–6 17

103 18

146 63 73 103 73 102 63 73 63 63 29 145–46 62 31, 142 64 44, 143 55 110 115, 148 130 27–28, 35–36 79, 147 89

Index of Primary Sources / 4Q266 6iv 6i:14–16 6ii:9–10 4Q270 2ii 3ii:12–16 4Q271 2:1–5 3 4Q272 1ii:3–7 4Q375 1i-1ii: 9 4Q376 4Q416 2iii:20–2iv:1 4QD 4QSb 4:1–3

206

RABBINIC LITERATURE 153–54n17 156–58n40 131 153–54n17 77, 100, 148 101, 148 111, 118 156–58n40 53, 144–45 54 111 156–58n40 146

11Q19 (Temple Scroll) 19:14–15 21:15–16 45:7–12 50:5 51:11–18 53:4–8 54:4 56:1–11 57:15–19 57:17–118–19 64:7–13 66:12 66:16–17

101 101–2 156–58n40 129–30 131 22, 142 117 48, 143–44 158–59n3 118 131 137 89

MMT B: 27–33 MMT B: 75–82

163–64n31 163–64n31

Megilat Taºanit (Fast Scroll) 4 Tamuz 132, 149 Mekhilta DeRabbi Ishmael bachodesh 7 kaspa 20 nezikin 4

121 78, 146 67–68

Mekhilta DeRashbi 32:13

176n35

Sifra Achare 7:9 8:3 9:3 13 Kedoshim 10 11 12 Emor 8

176n33 171n40 176n35 90–91, 147 120, 149 149, 175n26, 184n14 122 170n38

Sifre Numbers 6 127

13, 141 183n3

Sifre Deuteronomy 84 153 154 178 241 122 290

51 47 47 167n16 171n40 176n36 173n16

Index of Primary Sources / Mishnah Peºah 1:1 7:1 7:4 Maºaser Sheni 4:3–5 5:10–13 Shabbat 7:2 Yevamot 2:3–4 12:6 Nedarim 8:7 9:10 Sotah 8 Sanhedrin 1:9 5:5 7:4 10:1 11:1 11:15 Makkot 3:2 Eduyot 1:5 1:5–6 4:1 5:1–4 6:3 Hullin 3:1 5:3 6:2 7:6 Keritot 1:1

99 178n42 76 153n12 162n26 96 86 162n26 82 83 162n26 86 62 119, 174n20 124 67 50 99 65, 171n39 34, 142 184n9 184n9 183n3 78 170n37, 170n38 170n37 180n7 98

207

Kelim 1:5 Yadayim 4:3 4:7 Tosefta Terumot 3:6 Hagiga 2:9 Yevamot 1:2 3:1 Sanhedrin 7:1 9:2 14:13 14:14 Eduyot 3:2 2:6–7 Hullin 5:2 Abot de’Rabbi Natan

183n3 58, 145 17

178n42 60, 168n23 61 86 169n31 169n31 52 50

173n16 184n9 170n38 82

Palestinian Talmud Berakhot 1:7 (3b-c)

168n29

Peºah 1:1 15b 7:2 (20b-c)

179n45 153n15

Shviªit 1:1 (33a) Maºaser Sheni 5:5 Bikkurim 3:1 (65c) Moed Katan 3:1 Hagigah 2:2 (78a)

172n3 154–55n27 179n44 166n9 176n33

Index of Primary Sources / Yevamot 13c Sanhedrin 11:7 Horayot 1:1 (48d)

82 50 166n12

Babylonian Talmud Berakhot 35a 153n15, 154–55n27 Shabbat 113b 165n7 Eruvin 6b-7a 96a

168n28 176n35

Rosh HaShanah 25b Pesaºim 20b Bava Metsiªa 59b

47 178n42 166n9

208

Sanhedrin 22a 88b 90a Yevamot 55a 62b 90b Sota 2a Menanot 99b Hullin 42a 44a168n29 85a66, 170n37, 38 Tanhuma Bemidbar 1.7

180n13 56, 60, 145 50 138, 149–50 91 176n33 180n13 105 78, 147

68

GENERAL INDEX

Note: Pages numbers in italics refer to Hebrew texts in the Appendix. Bible, feminine reading of, 86–87, 136 Bilhah, 118, 120–21 Book of Covenant, 28 Buchler, Adolf, 173–74n18

Akhnai, oven of, 59 Akiva, Rabbi, 51–52, 98, 120, 137–38, 165n8 Albeck, Chanoch, 151n3 Allison, Dale, 125 Ammi, Rabbi, 104 Apocrypha, as source evidence for halakhah, 1 Arabs, marriage laws of, 81

calendar, variations in, 17–18 charity, 102, 104 Cohen, Shaye, 140 community, preserving sanctity of, 30–31, 32 Creation, foundation of, 108–10, 135

Baumgarten, Albert, on authority in the Rule of the Community, 63 Baumgarten, Joseph, 2; on accurate understanding of history of halakhah, 74; on sectarian halakhah in rabbinic literature, 2, 13–14, 155n33; on tosefet Shabbat, 74 be-diªavad (post-factum legal status), 70

Damascus Document; arrangement of, 29; Cave 4 manuscript of, 2; halakhic legal tradition expressed in, 18; on incest, 84–85; Laws of fourth-year fruits in, 10,

209

General Index / 210 Damascus Document (continued) 153–54n17; writing style of, 22, 24–28, 28 Davis, William, 125 Dead Sea Scrolls: 4Q251 (Halakhic Scroll), 27–28; and calendar, 17– 18; dating of, 3; divine inspiration as source of halakhah, 39–71; “Essene hypothesis” of, 16, 126, 155n30; historical gap between rabbinic literature and, 3, 7; history of research on, 2; on incest, 89; impact of discovery on halakhah research, 2; literary genres of, 21–28; missing features of midrash, 35; “old” traditions of, 3, 7, 36, 46, 70, 73; and penal code, 27–28; reasoning of law not spelled out in, 35, 163–62n31; treatment of fourth-year fruits in, 10, 35–36; use of formula “ki . . . hu . . .” (for X is Y) in, 35–36 death penalty, 37, 46–47, 67–68, 84, 97, 115, 131–33, 176n33 de-Orayta (laws from the Torah), 30, 70, 71, 97; on tosefet Shabbat, 74–75 de-rabbanan (laws decreed by the Rabbis), 30, 70, 71, 97; on tosefet Shabbat, 74–75 direct divine speech, of Temple Scroll, 23–24, 34, 37–38 divine revelation, as source of authority, 39–71. See also divorce and remarriage, 117–24 divre sofrim (“words of the scribes”), 87

egalitarianism, 63–64 Elªazar ben Azaria, Rabbi, 58 Eliezer, Rabbi, 3–4, 7, 15, 45–46, 58, 59–60, 69, 82, 134–35 Eliezer, Rabbi: mother of, 82 Elman, Yaªakov, 129–30 Epstein, Louis, 174n22 Epstein, Yaakov Nahum, 151n3 Essenes: common legal background with Sadducees, 17; as composers of Dead Sea Scrolls, 16, 155n30; disappearance of, 139–40; portrayal of, 16 exclusion (havdalah), 29, 160–61n16 expulsion, 29 Falashas, marriage laws of, 81 false prophets: and halakhic authority, 46–49; Qumran sectarian literature about, 53–55; rabbinic literature about, 49–52, 54–55; recognition of, 40 Festival of the First Fruits of Oil, 101–2 Festival of the First Fruits of Wine, 101 festivals, timing of, 18 first-born gifts, 28 first fruits (bikkurim), 28, 101–2, 104 fourth-year fruits, case study of, 7–15 Frankel, Zacharias, 1 Frenkel, Yonah, 45 Geiger, Abraham, 1, 3, 8, 11, 129 Gilat, Yitzhak, 3–4 Gilath, Yitzhak, 96

General Index / 211 Ginzberg, Louis, 81, 82, 93 grumbling, penal code provisions about, 31–32 halakhah: borders between “sectarian” and “nonsectarian,” 13; definition of, 1; divine versus human authority in, 39–71; forces enabling change in, 4; forces promoting change in, 5; genres of writing, 21–28; history of, 2; impact of failed rebellion against the Romans on, 4; justification of change in, 5; legal terminology of, 79; “old” versus “new” traditions of, 3–4, 9, 15, 36–37, 59, 70, 73; research focus on, 1–2; responses to reforms in, 5; separating original from innovative opinions in, 5; source evidence for, 1–2; subjects susceptible to change in, 4. See also names of specific documents Halakhic Letter. See Miqsat Maºase ha-Torah (MMT) Halbertal, Moshe, 34 Hananiah, son of (ben) Azzur, 50–52 harvest festivals, 9–10 Henshke, David, 156–58n40 hermeneutical devices (midot): argument a minori ad maius (kal va-nomer), 35, 51; equal ordinances (gzera shavva), 35; a fortiori argument, 163–64n31 Herod, marriage of, 173n17

hidden commandments , revelation of, 40–44, 70–71 high court decisions, status of, 40, 46–49, 53–54, 55 Hillel, School (House) of, 4, 60, 61, 133–35 hilulim (praise), 8–9, 11 hilulim (redemption), 8–9, 11 Himmelfarb, Marthah, 156–58n40 holiness, preservation of, 31 horse, riding on Shabbat, 97, 176n33 impurity: length of, 156–58n40; transfer of, 17. See also purification incest taboos, 80–95, 136–38 Israelites, history of, 40–41 Jeremiah, 50 Jerusalem: consumption of fourthyear fruits in, 8; on differences between Pharisees and Sadducees, 48, 57, 73, 88, 89, 103, 136; injunction against nakedness described by, 3, 136; Josephus, Flavius; on resurrection, 125–26; as source evidence for halakhah, 1–2, 16 Jose, Rabbi , 104 Jose the Damascene (ben Durmaskith), Rabbi, 58, 59 Jose the Galilean, Rabbi, 47, 56, 57, 60–61 Joshua, Rabbi, 58 Joshua ben Levi, Rabbi, 51 Joshua ben Nun, 87

General Index / 212 Jubilees, Book of, 11–13, 18, 155n28; halakhic legal tradition expressed in, 18, 109; on incest, 83–84, 118, 120; and law of tithes, 156–58n40; provenance and date of, 156n38 Judah, Rabbi, 34, 83–84 Judah the Prince, Rabbi, 66 Kahana, Menachem, 14 Karaites, marriage laws of, 81 Khirbet Qumran, inhabitants of, 16 Khirbet Qumran scrolls. See Dead Sea Scrolls; Qumran law Kislev, Itamar, 9 Kister, Menachem, 9, 12–13, 109, 118 Knohl, Israel, 5 Korah, 32 Krauss, Samauel, 81 lekhatnila (a priori legal demands), 70 levirate marriage, 125 Levites, and law of tithes, 156– 58n40 Lieberman, Saul, 36, 91, 151n3 marriage laws: on divorce and remarriage, 117–24; foundation of, 110–16; on polygamy, 108, 112, 158–59n3, 163–64n31; and resurrection, 124–27; on uncleniece marriage, 80–95, 131 measurements, creation of, 99–105, 139 Meir, Rabbi, 13–14, 66

Mekhilta DeªArayot, 137, 174–5n26 melakhah (work), on Shabbat, 96–97 midrash: arrangement of, 33; creation (development) of, 81, 95–98; dialectical nature of, 35; hermeneutical techniques of, 35–36; and rabbinic halakhic literature, 33, 35 Milik, 155n33 Miqsat Maºase ha-Torah (MMT, a.k.a. “Halakhic Letter”): authenticity of, 152–53n9; description (content) of, 6; halakhic legal tradition expressed in, 18, 129; new research stemming from discovery of, 2; new research stemming from publication of, 16; treatment of fourthyear fruits in (B: 62–63), 10 Mishnah: arrangement of, 33, 160n12; as authoritative document, 33; on fourth-year fruits, 7–8; history of, 2, 140; and rabbinic halakhic literature, 33, 140 Ms. Kaufmman, 142 Ms. Munich 95, 145 Ms. Oxford 151, 68 Ms. Vatican 32, 14 Ms. Vatican 66, 141, 149 Naeh, Shlomo, 60 nakedness, injunction against, 31 “negative commandments” (lo tªase), 97–98, 138 nevela, 77–80 New Testament, as source evidence for halakhah, 2, 73

General Index / 213 nidah (wanton), 122, 123 niglot (revealed), 40–41 nistarot (hidden), 40–41, 55–56 Noah, drunkenness of, 11–12 Noªam, Vered, 4, 134 numerology, and calendar year, 17–18 ªolelot (grapes left to the poor), 76–77, 172n6 ªomdim ªal ha-minyan, 62, 169n31 ªomdim le-minyan, 62, 169n31 penal code, sectarian: biblical background of, 29–33; judicial decision-making process explained in, 62; See also death penalty Pentateuch: rewriting of, 105, 117; Temple Scroll as imitation of, 26 Pesharim: definition of, 23, 159n4, 165n5; on revealing hidden things, 43 Pharisees: dispute over uncle-niece marriage, 80–95, 131; disputes with Qumranic sect, 10; disputes with Sadducees, 16–17, 72–73, 81, 129–40; lack of direct evidence for legal tradition of, 72– 73; on measurements, 99–105; New Testament references to, 73; “old” legal tradition of, 5, 6, 15, 16, 48, 57, 80, 105; philosophy of, 16; survival of, 139 Philo of Alexandria, 2, 16, 73 Pliny the Elder, 16

polygamy, prohibition of, 108, 112, 158–59n3, 163–64n31 poor, share of harvest for, 75–77, 100 “positive commandments” (ªase), 97–98, 138 “priestly halakhah,” definition of, 19, 107–8, 127–28, 130 priests, fourth-year fruits given to, 7, 8, 10, 11, 12, 13, 14 prophecy: belief in, 55, 57, 62; cessation of, 55 prophets. See false prophets, recognition of; true prophets Pseudo-Jonathan to Leviticus 19: 24, 8 punishments: in tractate Sanhedrin, 37; in sectarian penal code, 29–33 purification, need for, 156–58n40. See also impurity Qimron, Elisha, 153–54n17, 156–58n40 Qumran law: areas of research in, 2; characteristics of, 74 Qumran literature. See Dead Sea Scrolls Qumran sectarians: decison-making process of, 62–65, 81; disappearance of, 139; measurements of, 99–105; on recognition of false prophets, 53–55; role of law (halakhah) in life of, 2; source documents about, 73; views on divine origins of halakhic law, 40–45, 69–71

General Index / 214 rabbinic literature: dating of, 3; decision-making process of, 56– 62, 65–69, 139; explicit dispute (manloket) in, 34, 56, 60; gap between Bible and, 1; gap between Dead Sea Scrolls and, 3; genres of, 33–38; human exegetical activity in, 39–71; on measurements, 99–105; midrash in, 35; “new” traditions of, 3, 6, 13–14, 36–37, 105–6; on recognition of false prophets, 49–52, 54–55; as reflection of earlier tradition, 5, 7; structure of disputes in, 14; views on human cognition in halakhic law, 45–46 Rabin, Chaim, 62 remarriage, and divorce, 117–24 remez (allusion), 79 resurrection, and marriage laws, 124–27 Reuben, sin of, 118–19, 120–21 revelation. See prophecy “Reworked Pentateuch,” 27 “rewritten Bible”: definition of, 159–60n10; writing style of, 22, 24, 27 Romans, failed rebellion against, 4 root ªa.l.l, 76–77 Rubenstein, Jeffrey, 127 Rule of the Community: arrangement of, 29; Cave 4 fragments of, 63; nature of research on, 2; references to the community in, 30, 32; on revealing hidden things, 43–44

Sabbath: differing traditions of, 74–75, 96–97; sacrifices on, 18 sacrifices: discussed in Miqsat Maºase ha-Torah, 6; of fourth-year fruits, 7 Sadducees: calendar used by, 17– 18; differences from Essenes, 17–18; disappearance of, 139– 40; dispute over uncle-niece marriage, 80–95, 131; disputes with Pharisees, 16–17, 72–73, 129–40; legal tradition of, 3, 6, 13, 15, 16, 48, 74–80, 155n33; on measurements, 99–105; philosophy of, 16; Rabbinic sources on, 16; as Sons of Zadok (bne tsadok), 155n33 Sages (nakhmim), 66 Samaritans, marriage laws of, 81 Schechter, Solomon, 81 Schiffman, Lawrence, 2, 5, 74 Schremer, Adiel, 95–96, 102 Schwartz, Baruch, 30 Schwartz, Daniel, 19, 107–9, 127 Second Temple, destruction of, 4, 139 Second Temple period: Dead Sea Scrolls as source for, 16; halakhic disputes from time of, 5, 11, 15, 72–106; “old” halakhah stemming from time of, 4, 6, 36; reconstructing history of, 2 second tithe, purity of, 8 Segal, Michael, 12 Septuagint, on fourth-year fruits, 8

General Index / 215 sexual taboos, 80–95 Shammai, School (House) of, 59, 60, 61, 133–35 Shammai, School (house) of, 4, 7 shamor, 75 shave Yisrael, 41 sheªat ha-dhak (acting under duress), 70 Silman, Yochanan, 107 Simeon, Rabbi, 65, 66 Simeon b. Lakish, Rabbi (Resh Lakish), 78–79 Simeon bar Yohai, Rabbi, 105 Soloveitchik, Hayim, 96 Sons of Zadok (bne tsadok), 63–64, 155n33 Strugnel, John, 54 Sussman, Jacob, 1, 16–17, 90, 129, 130 Tamar, 83–84 Tannaitic literature: accepted views expressed in, 67; differences between Dead Sea Scrolls and, 5; on fourth-year fruits, 7–8; human authority established in, 47; “old” halakhah in, 6 Tarfon, Rabbi, 58 Targum Ps. Jonathan, 159n6 Temple. See Second Temple Temple Scroll: as authoritative document, 23–24, 25, 26, 34; disputed origins of, 18; halakhic legal tradition expressed in, 18; impact of discovery on

halakhah research, 2, 155n33; and law of tithes, 156–58n40; on length of impurity, 156– 58n40; on number of wives, 158–59n3; on rape, 113; on the rebellious sage, 48; treatment of fourth-year fruits in, 10; writing style of, 21–24, 26, 27–28 theoretical approaches: criteria for preferring one of another of, 6–7; developmental model, 3–4, 15, 35–36, 39, 69; explanation of, 3–7; and methodological assumptions, 15–19; reflective model, 5 tithes: in Ammon and Moab, 58; law of, 156–58n40 Torah: referenced in Damascus Document, 25, 26, 33; referenced in midrash, 33; relevatory exegesis of, 59; revelation of hidden commandments of, 40 Torah study, 102, 104–5 tosefet Shabbat (addition to the Sabbath), 74–75 trefah, 77–80 true prophets, 55 truth, sources of, 57, 60 uncle-niece marriage, dispute over, 80–95, 131 Urbach, Ephraim E., 95 voting: counting in, 62; purpose of, 57

General Index / 216 Werman, Cana, 109 Wissenschaft des Judentums movement, 1

Yohanan, Rabbi, 66, 105 Yohanan ben Zakkai, Rabbi, 58

Yadin, Azan, 176–77n36 Yadin, Yigael, 5, 48 Yishmael, Rabbi, 14, 58, 83, 98, 104, 120, 137–38, 176–77n36

zaken mamre (the rebellious sage), 47 zekenim (elders), 87 zenut (fornication), 81