The Memory of the Temple and the Making of the Rabbis. Naftali S. Cohn
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law. Most commonly, rabbis in the Mishnah hold legal opinions, though they are also frequently described as teaching, debating, and issuing rulings, among other legal endeavors. To build a fuller picture of the rabbis’ legal role, however, and to understand where such a role would place them in the larger society, it is necessary to consider their claims in more detail and to read their self-representations in light of the Roman provincial context in which they were situated.
What the evidence suggests is that the rabbis drew on a prestigious model from the dominant Roman culture to lay claim to the only area of law that would have been available to them: they fashioned themselves as jurists, specifically in the realm of traditional Judaean ritual law. By making such a claim, the rabbis not only asserted the validity of their body of teaching but insisted that they—and no others—had the authority to determine how all Judaeans would practice the traditional biblically based rituals.1
Rabbis as Jurists
Living under full Roman domination and control, the rabbis could not have had any officially recognized role in the legal system. As Seth Schwartz points out: “When the Romans annexed a province, they subjected it to Roman law and entrusted all legal and political authority in the province to the Roman governor and his staff, and to the local city councils. They did not recognize the autonomy of the local population … and they did not appoint intermediaries between the “natives” and themselves.”2
There may have been some room, however, for playing a legal role in settling disputes. While the Romans controlled all official legal venues in the provinces, they seem to have allowed for unofficial or informal arbitration. As Jill Harries puts it: “Arbitration [could] consist of an informal agreement brokered by an adjudicator, without introducing the legal formalities required by a formal process.”3 The existence of this type of arbitration may be supported by evidence from a later period, a constitution (law) issued by Arcadius and Honorius at the very end of the fourth century and codified in the Theodosian Code (CT). This law asserts that Judaeans (Jews) fall under the jurisdiction of Roman law but nonetheless have a right to adjudicate civil cases by official “arbitration before Jews or Patriarchs.”4 This later law may make official what had been practiced unofficially for two centuries or longer. Building on this evidence, Hannah Cotton argues that the rabbis imagine themselves as this very sort of unofficial arbitrator tolerated by the Romans.5
An example in the Mishnah describing a rabbinic legal ruling may support this identification of rabbis as arbitrators. In Mishnah Bava Ḳamma 8:6, Rabbi Akiva appears to arbitrate a dispute between a man and a woman whose hair the man had uncovered:
It was a case [ma‘ăśeh] involving a man who uncovered a woman’s hair in the marketplace. She came before Rabbi Akiva, and he obligated him to pay her four hundred zuz. [The man] said to [Rabbi Akiva], “Rabbi, give me some time [to pay],” and he gave him some time. [The man] waited for her to be standing at the entrance to her courtyard, and he broke a jug with an ’issar’s worth of oil in it in front of her. She uncovered her head, and repeatedly patted her hand onto her head [using the spilled oil]. He had witnesses witness her, and he came to Rabbi Akiva. He said to [Rabbi Akiva], “Rabbi, I have to pay four hundred zuz to this [woman] [as a payment for shaming her when she shamelessly uncovered her own head]? [Rabbi Akiva] said to him, “You have made no argument. One who injures himself, even though he is not permitted, is exempt from liability, but others who injure him are liable.”6
Since Rabbi Akiva is not part of a typical Jewish court of three members but is acting alone, he appears to be arbitrating the case between the two disputants, who, according to the story, both appear before him.7 And since the man goes to some lengths to argue against the verdict, the story implies that Rabbi Akiva’s authority is accepted.8 This reading of the case story—put forth by Cotton—is plausible, and it is even possible that rabbis served as arbitrators. Yet this is not the predominant way in which the Mishnah represents the rabbinic legal role. The vast majority of similar examples in the Mishnah in which a rabbi or rabbis issue a legal opinion or are in some way involved in a case (השעמ [ma‘ăśeh]) are not about a dispute between parties that is resolved but rather a case in which there is an ambiguity on a matter of Jewish law.9 In most of these narratives, the rabbi or group of rabbis issue an opinion that resolves the legal ambiguity and establishes the law.10 Furthermore, the legal issue arising in these cases seems to pertain only to a single individual rather than two parties. A typical example occurs in Mishnah Kil’ayim 4:9:
The one who plants the rows of his vineyard sixteen ’ammōt [approximately twenty-four feet] apart is permitted to plant seeds in the space between the rows [though normally seeds, or, non-grapes, cannot be planted together with grapes].
Rabbi Yehudah said:
There was a case [ma‘ăśeh] in Tsalmon regarding an individual who planted his vineyard with the rows sixteen ’ammōt apart. And he would put the vines from two [adjacent] rows all to one side [filling the space between every other row] and plant the empty row with seeds. And the following year, he would flip the vines to the other side and plant the empty row with seeds [where all the vines had been the previous year]. And the case came before the sages, and they permitted.
The narrative does not give much detail about the setting of the rabbinic ruling, except to say that the case came before the sages, which seems to imply that the sages—presumably, a group of rabbis—are at a distance from the actual scenario.11 The Mishnah’s report also leaves ambiguous how the case comes to the sages: whether the person involved comes to the sages or even has knowledge that the case is brought to them.12 This story gives no hint as to whether the rabbinic ruling is followed—though there is evidence in some examples that it is, and in others that it is not.13
Despite the ambiguity in the setting of this narrative and most like it, it is relatively clear that the sages are not arbitrating any dispute. What they are doing is issuing an opinion about an ambiguous matter of law. In this example, the question was: Is this potentially problematic configuration of planting in a vineyard permissible (or, is the produce from such a planting permissible)? The law is that it is permissible.
The best explanation for mishnaic case stories such as this is that they depict the rabbis functioning with respect to Torah as Roman jurists function with respect to Roman law. They show rabbis issuing opinions in matters of Jewish law that resolve an ambiguity in a case in precisely the same way that Roman jurists performed their function of respondere, issuing legal opinions formulated as responses to specific questions arising in specific cases.14 For example, in the following case, recorded in Justinian’s Digest 2.14.47, Scaevola responds to a question of law that arises in a case involving a sale of land and the collection of payment:
A buyer of land undertook that he would pay twenty [unit of currency not specified] and promised this amount by stipulation. Afterward, the seller undertook an agreement by which he would be content with thirteen and would receive this within a certain time. The debtor, when sued for payment of the latter amount, made a pact that if it was not paid within a certain time, an action would lie against him on the original undertaking. The question is asked whether, when the later pact had not been kept, everything owed under the original undertaking can be recovered. I replied that, according to what had been set forth, it could.15
As Catherine Hezser points out, responsa such as these can be divided into three parts: “a brief description of the legally problematic situation (casus), the formulation of the question (quaestio), and the legal expert’s solution to the problem at the end (responsum).”16 The mishnaic case stories differ slightly from the contemporary Roman form in that the legal question is rarely stated explicitly and the language of question and response is not typically used. But there are responsa of Roman jurists that omit the questions that are similar to a common type of mishnaic example that narrates only the case and the rabbinic ruling. Compare, for example, Digest 2.14.42 with Mishnah Nazir 2:3:
A debtor and creditor agreed that the creditor should not bear the burden of tax due on land pledged to him but that the debtor should