The Memory of the Temple and the Making of the Rabbis. Naftali S. Cohn
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a vested interest in “marking out … the Jews as ‘absolute other’ to Christianity,” and doing so by inventing both as “religions.”36 Yet their assumption that Judaean ritual law—what would for them fall under the rubric of superstitio/religio (“religion”)—was a discrete body of law distinct from Roman law likely goes back to earlier centuries, when Roman administrators and authorities would not have had interest in any type of law outside the boundaries of Roman law. Roman authorities in the time of the Mishnah were, however, interested in enforcing areas of law that fell within the bounds of Roman law; and the rabbis, as evidenced by the Mishnah’s case stories, were thus claiming authority over the only body of law that was available: ritual law.
Rabbinic Jurists and Not Rabbinic Courts
The reconstruction I have put forth for the judicial role that the rabbis claimed for themselves goes against a commonly held view that the rabbis were members of rabbinic courts in Yavneh and elsewhere.37 The strongest evidence in the Mishnah for this alternative view can be found in four passages that claim that individual rabbis had their own court: in one, Rosh Hashanah 2:8–9, Rabban Gamliel (located in Yavneh) has his own court; and in three, “Rabbi,” that is, Rabbi Yehudah the Naśi, has his own court.
This limited evidence about Rabban Gamliel and Rabbi Yehudah the Naśi does support the notion that the rabbinic authors of the Mishnah claimed that a handful of rabbis were part of a court. However, this conclusion should not be extended to the rabbis generally. The first reason that the evidence for court affiliation should be limited to the two rabbis about whom the Mishnah is explicit is that these two rabbis are exceptional. “Rabbi” is the first rabbi to be given the special title naśi, meaning “head of the court” or perhaps “patriarch”; and Rabban Gamliel, with the relatively unusual title “Rabban,” was remembered as Rabbi’s progenitor. Even if one or both of them were not officially a patriarch in the sense used in later Roman, Christian, and rabbinic texts, they were certainly illustrious rabbis.38 They may have been part of a judicial court, but that does not mean that any other rabbis were. This argument is supported by the details of the story in Rosh Hashanah 2:9 in which Rabban Gamliel forces Rabbi Yehoshua (Joshua) to follow his ruling about the new moon: while Rabban Gamliel has his own court, none of the other major rabbis in the story—Rabbi Yehoshua, Rabbi Akiva, and perhaps Rabbi Dosa ben Arkhinas—is a member of this court.39
If the two illustrious rabbis, Rabban Gamliel and “Rabbi,” are indeed heads of their own courts, these courts, as indicated in the examples, are not the typical courts found throughout the Mishnah. Normally in the Mishnah, courts are institutions that adjudicate cases, mete out punishments, and oversee formal legal actions.40 In these cases, in contrast, the rabbinically led courts do not perform any of the typical functions of a court. Rather, the two rabbinic “courts” make law and determine how rituals should be performed—the typical juristic rabbinic legal function. In the case of Rabban Gamliel, the court questions witnesses, a typical adjudicatory function. But determining the new month is not a regular type of adjudication; it is a rendering of a decision on a nonjudicial matter (whether the new moon has been seen) in a matter of law with ramifications only for ritual practice (when the Day of Atonement is celebrated). One could even argue that it is simply a ruling on a point of ritual law in a manner similar to the juristic decisions rendered throughout the case-story genre in the Mishnah. The same can be said about “Rabbi’s” court, which never adjudicates but only takes a vote to determine what the law is regarding the purity status of a city (’Ohalot 18:9), the transfer of property (Giṭṭin 5:6), and food consumption (‘Avodah Zarah 2:6). With the possible exception of determining the new moon, the rabbinic courts in the Mishnah do not adjudicate in any way but perform the juristic legal function of determining what the law is; as in the examples portraying rabbis as jurists, the law is in the domain of Jewish ritual practice in most of these cases.41 Thus even in these exceptional cases in which rabbis are part of courts, the depiction seems to be an extension of the more common portrayal of rabbis as jurists in the area of traditional Judaean ritual law.42
Authority over Judaean Ritual Practice
By portraying themselves as jurists who issue rulings in matters of ritual law, the rabbis of the Mishnah were not merely claiming to be authoritative arbiters of this body of law in an academic sense. Nor were they merely maintaining that their version of the traditional way of life was correct. By imagining themselves issuing rulings, the rabbis were also asserting that Judaeans facing an ambiguous matter of ritual practice should consult with them. They were arguing that Judaeans should perform these rituals the way they say and that their rulings were universally applicable, to rabbis and non-rabbis alike. Even if no Judaeans besides rabbis had access to the text of the Mishnah, either directly or through informal communication with rabbis, the portrayals of rabbis therein still make the argument that all Judaeans should be following the dictates of the rabbis and should practice the traditional way of life as the rabbis envision it.
That the rabbis were asserting their authority over practice and not simply over the law in the abstract can be seen in the handful of mishnaic case stories that imagine anonymous men and women coming before rabbis for a juristic ruling in a matter of ritual law.43 In Mishnah Niddah 8:3, for example, it is purported that a woman actually came before a rabbi for advice on a matter of ritual law that would affect the way she performed the traditional ritual: “The case [ma‘ăśeh] of a certain woman who came before Rabbi Akivah and said to him, ‘I saw a (menstrual) blood stain.’ He said to her, ‘perhaps you had a wound?’ And she said, ‘Yes, and it healed.’ ‘And perhaps it could have been opened up and thus produced blood?’ And she told him, ‘Yes.’ And Rabbi Akivah declared her pure.”
Charlotte Fonrobert argues that in this passage, “rabbis are staged as ‘gynecologists,’ so to speak, as authoritative interpreters of women’s bodies.”44 But the rabbis are being constructed as more than simply experts on female bodies. They are also being constructed as experts on the law and on how the law should be applied to the practice of the ritual. This can be seen in other examples as well. In Yadayim 3:1, for instance, a woman comes to Rabban Gamliel’s father about a matter of purity; in Nedarim 9:10, people bring a man to Rabbi Yishmael for a ruling about a vow. Similarly, in Ta‘anit 3:9 people follow Rabbi Tarfon’s instruction on the fasting ritual; and in Yevamot 12:6, Rabbi Hurkenos (Hyrcanus) determines how a ḥălitsāh ritual is performed. In each of these examples, rabbis are presented as arbiters of traditional ritual practice, and people—seemingly ordinary Judaeans—follow their dictates. Even if these case stories and other reports are invented, they show that the rabbis are claiming authority not only over Judaean ritual law in the abstract but over Judaean ritual as practiced as well.45
Rabbinic Claims against Competing Claims for Authority
Rabbis were likely not the only ones who would have claimed authority to determine how Judaeans should practice the traditional rituals ultimately deriving from the Torah. Judaean society—the subsociety within Roman Syria Palaestina of those sharing a common “Israelite” ancestry and set of cultural practices—consisted of multiple subgroups, each overlapping the other in complex ways.46 Rabbis were only one small group within this variegated social landscape. Presumably, the leaders or ritual experts within each of these other groups would have asserted their own primacy and power to determine how the group and perhaps how others should practice the traditional way of life.
Post-destruction literary sources of the first, second, and third centuries all imagine that multiple groups were living within the territory that was once Judaea and that became Syria Palaestina. As throughout the Roman Empire, these groups were defined largely in ethnic terms. Aside from those native to Judaea and sharing a common ancestry and culture (including biblically derived ritual practice), termed Israelites (Greek, ioudaioi [Judaeans]), authors speak of Romans, Greeks, and Samaritans (כותי [kuti] in the Mishnah). By the later second century, the nonethnic category of “Christian” also came to be used in distinction to “Judaean” and to the other ethnically defined categories.47 Even among Israelites/Judaeans themselves, according to various authors of the time, there were multiple subgroups—Pharisees,