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Chapter 1

Rabbis as Jurists of Judaean Ritual Law and Competing Claims for Authority

Who were the rabbis? Who, at least, did they claim to be? In the Mishnah, which is largely about law, the rabbis represent themselves as legal authorities engaged in a variety of activities pertaining to traditional Judaean 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 be required to pay it. I replied that such an agreement should not be enforced insofar as it relates to the imperial treasury. For it is settled that provisions of the revenue law are not set aside by the pacts of private persons. (Digest 2.14.42, Papinian, Replies, book 17)

There was a case [ma‘ăśeh] with a certain woman who was drunk, and they poured [another] cup [of wine] for her. She said, “I am a Nazirite from it” [thus taking a vow of abstinence from wine and, according to mishnaic law, inadvertently taking upon herself all the Nazirite restrictions]. The sages said: She only meant [to say], for instance, “This is a sacrifice for me” [a non-Nazirite vow, and so her apparent Nazirite vow of abstinence is null and void]. (Mishnah Nazir 2:3)¹⁷

These examples are quite similar in presenting only the case and then the ruling—though the ruling is oblique in the mishnaic case. This mishnaic example lacks the explanation of the ruling, which is given in the example from the Digest, but such explanations can be found in a number of mishnaic case stories, such as Mishnah Terumot 4:13: “Rabbi Yose said: A case came before Rabbi Akiva regarding fifty bunches of greens into which one bunch which was half tĕrumāh [sacred produce to be eaten by priests] had fallen. And I said before him, ‘Let it be neutralized [that is, the small fraction that was sacred is now considered non-sacred and the entire mixture permitted to be eaten]; not because tĕrumāh is neutralized in a one in fifty-one mixture but because there were 102 halves’ [that is, it is neutralized in a 1:102 mixture].”

This example is unusual in that it depicts a rabbinic disciple’s training: the student, Rabbi Yose, does not issue an actual ruling but suggests it to his master, to whom the case had come. We are not told about the final ruling by Rabbi Akiva; presumably, he accepted what Rabbi Yose had said. Regardless of these details of the actual ruling, we are given in this example an explanation for the ruling, similar to what we are given in the example from Papinian.

Though most mishnaic case stories lack the formal language of question and response, there are a handful of instances in which the rabbinic legal opinion is specifically given in response to being asked, and these cases are especially similar to the typical Roman responsa. In Mishnah ‘Avodah Zarah 5:2, for instance, a certain Boethus, son of Xenon (bōytas ben zinōn), asks the sages about his case: “A case with Boethus, son of Xenon, who brought dried figs on a boat, and a barrel of [forbidden] libation wine broke and [the wine] fell onto [the dried figs]. And he asked the sages, and they permitted them” (emphasis added). This particular example is more personal than the Roman examples from the Digest because the individual who asked the legal question is named; nevertheless, the act of asking is quite similar to the formal asking in the responsa of Roman jurists.¹⁸

Based on the evidence marshaled thus far, in most examples, the Roman and rabbinic responsa may differ slightly in form, but the role of the rabbinic jurist, clarifying and determining the law in real cases, is nearly identical to that of the Roman jurist.¹⁹ And the handful of instances in which the form is in fact the same are particularly suggestive of the parallel between the rabbinic and the Roman juristic role.²⁰

In the comparable juristic and mishnaic case stories, there is a second similarity between the Roman jurists and the rabbis: both are engaged more generally in creating the law.²¹ Martin Goodman, who was first to suggest that the rabbis are akin in their role to Roman jurists, emphasizes the common interest in the creation of law and especially the codification of law: “The relation of the rabbis to the courts is easily explicable in terms of the relation of iurisprudentes (jurists) to a legal system. Not unlike contemporary lawyers such as Ulpian from nearby Tyre, the rabbis spent their time codifying the law as they saw it, inventing problems to solve according to the principles they evolved from these laws, adding a strong element of what they would like the laws to be, and making the results known to the nonacademic public.”²² Goodman and those who make the same comparison in his wake see the rabbis as jurists primarily because their activity of creating law and especially codifying law resembles that of the Roman jurists and because the finished products of their work, the Mishnah and the Talmud, resemble law collections produced by Roman jurists.²³

Additional evidence throughout the Mishnah suggests further similarities between the rabbis’ and the Roman jurists’ typical activities. Rabbis are often depicted as masters teaching or interacting with their disciples, or as disciples learning from their masters. Similarly, rabbis of presumably equal standing are often depicted engaging in legal debate and discussion with one another.²⁴ Each of these types of academic interaction mirrors similar academic activities of Roman jurists.²⁵

Summing up the Mishnah’s evidence: the rabbis are typically depicted as jurists who issue opinions on matters of Jewish law in response to ambiguities arising in cases, who codify the law they create, who teach disciples, and who debate matters of law.

While the rabbinic legal role as pictured is strikingly similar to that of Roman jurists, there is a fundamental distinction between the two. Roman jurists at the time, like the Roman legal system in general, seem to have focused primarily on civil and family law and not sacred law. Historically, the juristic role in Rome originated with aristocratic priests who interpreted the Twelve Tables and who were also authorities on sacred law. Yet by the classical period of Roman law—which includes the second and third centuries—the secular successors of the priest-jurists dealt exclusively with civil law.²⁶ The rabbis, in contrast, in their role as jurists in the Mishnah’s narratives, focus primarily on law that would not have been relevant in a Roman court: Judaean ritual law.²⁷ Of seventy-six case stories and related texts in the Mishnah, only six are about civil law and six are about matters of family law not exclusive to Judaean law.²⁸ This finding corresponds to that of Martin Goodman that the rabbis “attempted to control Jews in Galilee only in religious rather than secular matters.”²⁹ It also correlates with Shaye Cohen’s finding that in (presumed) tannaitic (from the time of the Mishnah) case stories throughout the entire rabbinic corpus, only 4.4 percent of cases deal with civil law.³⁰

To be sure, rabbinic law included in the Mishnah encompasses ritual law and civil (and criminal) law—all the areas of law already found in the Torah. In the Mishnah, rabbis frequently have opinions in all these areas of law; occasionally, they are even depicted issuing opinions on civil or family law cases. Yet in the vast majority of narratives that purport to describe the actual legal role played by the rabbis, this role is limited to ritual law. Thus in the Mishnah’s narrative depictions, the rabbis are not, as Goodman and Hezser suggest, jurists within the Roman legal system where their opinions would have mattered in cases adjudicated in the local courts controlled by the Romans, but jurists—styled after Roman jurists—of Judaean ritual law whose opinions mattered in the practice of Judaean ritual and in the development of Judaean law.³¹

This limitation of rabbinic juristic activity to the ritual sphere can best be explained by the realities of living under Roman domination. As noted at the beginning of this chapter, rabbis, as local legal experts, did not have—and could not have had—any legal jurisdiction recognized by the ruling of the Romans. Thus any decisions in these realms would not be enforceable. Similarly, rabbis could not have acted as jurists within official Roman venues. In asserting jurisprudential authority over Judaean ritual law, the rabbis (or at least the Mishnah, in its depiction of the rabbis) were laying claim to the only area of law left available by the Romans and thus that they could have controlled. Indeed, later Roman law, particularly two edicts issued by the emperors Arcadius and Honorius in the years 397 and 398, legalized or perhaps affirmed the distinction between Roman civil law and Judaean (Jewish) ritual law, and placed control over Judaean ritual law firmly in the hands of Judaeans (Jews).³² In the edict of 398 (Theodosian Code [CT] 2.1.10), these emperors require that Judaeans address Roman courts, except in matters pertaining to their “superstition” (“religion” in CT ’s commentary).³³ At roughly the same time, they also ruled (CT 16.18.13) that Judaeans were obligated to follow Judaean ritual law—called “ceremonies”—as determined by ritual authorities named as “the illustrious patriarchs,” “the archsynagogues,” the “patriarchs,” “the presbyters,” and “others who are occupied in the rite (sacrament) of that religion.”³⁴ In this sense, the Judaeans are made explicitly parallel to Christians who are bound by Christian ritual law.³⁵ These Christian Roman emperors living two centuries after the time of the Mishnah may well have had 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, Sadducees, and Essenes; rabbis and non-rabbis (of a number of distinct types); and Judaean believers in Jesus.⁴⁸ On the larger scale of the entire multiethnic province and the smaller scale of the Judaean ethnic group, post-destruction authors frequently treated the boundaries between these groups as sharp. Yet these same authors’ writings provide ample evidence that there was boundary blurring between all these groups and subgroups and that, as a consequence, there was extensive multiplicity within Judaean society—well beyond the discrete subcategories they mention.⁴⁹

The case of Judaean believers in Jesus provides a good starting point to explain this finding. It has long been recognized that all the initial and many of the subsequent followers of Jesus in the first century, including especially the Jerusalem Church described in Acts and in several of Paul’s letters, were in some way “Jewish.”⁵⁰ The history of defining these “early Christians” has, as Matt Jackson-McCabe shows, been ideologically fraught, yet quite a few scholars now argue that many, if not all, “early Christians”—those who followed Jesus and created many of the canonical Christian texts—were, in fact, Judaean, rather similar to other “Jewish” groups in the first century and beyond.⁵¹ As Daniel Boyarin points out, even those believers in Jesus marked as ethnically non-Judaean were—in the first and early second centuries—understood to have become Judaean in some way, as “proselytes, … theoseboumenoi [Godfearers], and gerim (resident aliens, who were required to keep precisely the laws marked out in Acts for Gentile followers of Jesus).”⁵²

In the latter part of the second century and into the third century, even as Justin Martyr and others were defining “Christian” as a new category of identity—one distinct from, but fundamentally bound up with, Judaean ethnicity—there nevertheless remained numerous and diverse types of Jesus believers who could still be called “Judaean.” Boyarin, who has devoted much energy to elaborating the theoretical framework for picturing the sociocultural landscape, has argued: “We might think of Christianity and Judaism in the second and third centuries as points on a continuum from the Marcionites, who followed the second-century Marcion in believing that the Hebrew Bible had been written by an inferior God and had no standing for Christians, and who completely denied the ‘Jewishness’ of Christianity, on one end, to many Jews on the other end for whom Jesus meant nothing. In the middle, however, there were many gradations that provided social and cultural progression across this spectrum.”⁵³

One of Boyarin’s main points is that despite the rhetoric that began to be employed at the time that there was a pure “Judaism” (or perhaps “Israelitism”) and a pure “Christianity,” most subgroups could be considered “hybrid” in some sense and part of a larger “religious dialect map,” that is, a set of groups interrelated in the same way that different language dialects are interrelated. While it is possible to critique this model, it is particularly useful in pointing to both the hybridity that could exist between the categories posited as distinct and the diversity of ways that different subgroups may have embraced both traditional Judaean practices and belief in Jesus.⁵⁴ Some Christians might fall outside of Judaean society (and not only because of ideology), yet even within Judaean society, there were likely a number of different subgroups for whom Jesus was a central figure.⁵⁵

A similar blurring of boundaries, hybridity, and diversity among those hybrid groups that fall within the Judaean ethnos (people sharing ancestry and customs) seems to have existed in other categories as well. Even though many—including the authors of the Mishnah, of several New Testament and early Christian works, and Josephus—considered Judaean/Israelite and Roman/Gentile (gōyim) mutually exclusive categories, evidence suggests that there were Judaeans who embraced a Roman way of living and that for these Judaeans, the border between Roman and Israelite/Judaean was not so sharp.⁵⁶ In the Galilee, including the cities of Sepphoris and Tiberias, the population was largely ethnically Judaean. Among the archaeological remains from throughout the Galilee, but especially from Sepphoris, stone (chalk/limestone) vessels and stepped pools were found—types of material culture earlier associated with the Jerusalem Temple and unique to Judaeans.⁵⁷ Earlier and later authors tended to consider the Galilee wholly Judaean; even in the Mishnah (and Tosefta), Galilean locations—unlike the Gentile cities of Akko (Ptolemais) and Bet She’an (Scythopolis)—seem to be largely Judaean.⁵⁸ At the same time, there is evidence of the embrace of a Roman lifestyle, perhaps including pagan ritual practices. As Mark Chancey argues, beginning in the early to mid-second century, there was a “transformation in the landscape” of Sepphoris and Tiberias. Paved streets, aqueducts, bathhouses, theaters, additional public buildings, and private houses with lavish Greco-Roman mosaics were built—including the well-known elaborate Dionysian scene in a Sepphoran house.⁵⁹ This transformation corresponds with a change in the iconography of local city coins minted by the local leaders of Sepphoris and Tiberias, which now included images of pagan gods.⁶⁰ Along with evidence of these public displays of Roman material culture, a small number of pagan ritual implements have been found in Sepphoris and Tiberias.⁶¹ The most plausible explanation of this evidence is not that non-Judaean Roman leadership was suddenly and temporarily introduced, or that the Judaean leadership was simply accommodating Roman rule, or that Judaeans threw off the traditional way of life in favor of a Roman one, but that these leaders and elites were Judaeans who embraced a hybrid Judaean-Roman culture that, in some cases, included pagan ritual.⁶² The existence of such hybridity can perhaps best be seen in a contemporaneous inscription in Ḳatsyōn, in the Golan, by a group of self-identified Judaeans (ioudaioi) who dedicated the monumental building that contained a stone eagle and an altar and a dedicatory inscription to the emperor Septimius Severus and his sons.⁶³ These Judaeans, like many of their Galilean urban brethren, seem to have embraced Roman culture. Though there is no specific available evidence, it is likely that there was diversity here as well in the ways that different Judaeans in various locations throughout Syria Palaestina embraced Roman culture and mixed this embrace with adherence to traditional cultural and ritual practices.

In the case of the Samaritans, there likely existed a similar intermingling and perhaps diversity of views on how Samaritanism may have related to Judaeanness. In the Mishnah, Samaritans (kutim) are not Israelites, since they are a distinct category contrasted to the Israelite (ישראל), yet they are frequently treated as legally the same as the Israelite and are imagined to observe at least some of the same rituals.⁶⁴ The category itself, in the Mishnah, seems to be hybrid; Samaritans are at once Israelite but not Israelite. To the extent that Samaritans are different, the Mishnah seems to imagine them mingling in a fundamental way with Judaeans who would have been interested in rabbinic legal rulings. A case story in Mishnah Giṭṭin 1:5 claims that there were Judaeans in Kefar ‘Otnay (Caparcotna/Legio) who had Samaritans sign on their divorce contract.⁶⁵ These purported interactions may point to a genuine mixing and overlap that belie the strict divisions implied by the very categories used.⁶⁶

Outside of the diversity among those who may have embraced Roman or Samaritan culture or embraced Jesus, there seems to have been diversity (and boundary blurring) as well within the polity that the rabbis, at least, firmly identified as Judaean. In the Mishnah as well as the Tosefta, the rabbis frequently admit that there are other (non-rabbinic) Judaeans who practice the traditional way of life differently from the way that the rabbis believe that it should be practiced. There are ‘ōvrēi ‘ăvēirāh (sinners) and ‘ammēi hā’ārets (the people of the land [a biblical term])—both of whom are Israelites yet do not practice as they should, in the rabbinic view.⁶⁷ As Stuart Miller has demonstrated, rabbinic sources also speak of the people of a given city (termed the “people of” [bĕnēi or ’anshēi] a given place).⁶⁸ The rabbis take these people as fully Israelite (Judaean) but distinct from themselves. They practice the traditional way of life but not quite as the rabbis imagine that it should be practiced. These “common” Judaeans from the city or from towns and rural areas form a distinct subgroup within society, one that may be the core of what Miller calls “complex common Judaism.”⁶⁹ While it is impossible to get more than a rough picture about these other non-rabbinic Judaeans from what is largely rabbinic evidence, the rabbinic evidence shows that there were other, possibly diverse, non-rabbinic groups who formed the majority of Judaean society. I strongly suspect that these other Judaeans, too, overlapped in complex ways with the other subgroupings in society—those who may have embraced Roman or Samaritan culture or who may have been believers in Jesus.⁷⁰

The rabbis who created the Mishnah were thus one small distinct group within the larger complex landscape of Judaean society in Roman Syria Palaestina, yet they claimed the right to determine how all Judaeans would practice, as I suggested above. The tension between their small place in society and the wide authority they claim for their rulings can be seen in an example in which they rule on a matter regarding the people of Tiberias:

מעשה שעשו אנשי טבירייה הביאו סילון של צונין לתוך אמה שלחמין

אמרו להן חכמ’ אם בשבת כחמין שהוחמו בשבת אסורים ברחיצה

ובשתייה ואם ביום טוב כחמין שהוחמו ביום טוב אסורין ברחיצה

ומותרין בשתייה

There was a case / It once happened that the people of Tiberias brought a pipe of cold water through a branch of the hot springs. The sages said to them: If on the Sabbath, these waters have the status of water heated on the Sabbath, they are forbidden for use in bathing or drinking; if on the festival day, they have the status of water heated on the festival day, they are forbidden for use in bathing but permitted for use in drinking. (Mishnah Shabbat 3:4)

In this story, when the rabbis inform the people of Tiberias that the water from their “pipe of cold water running through a branch of the hot springs” cannot be used on the Sabbath and can be used only for drinking on festivals, they take for granted that these “commoners” should be following rabbinic law. At the same time, the story suggests that the people of Tiberias have already created heated water in a manner that the rabbis see as permitted only in very limited circumstances, and they have done so without consulting any rabbis. As Moshe Simon-Shoshan points out, even after the fact, these people of Tiberias do not seem to have solicited the rabbis’ opinion.⁷¹ The rabbis inform the people about the correct law, but it is never clear whether the people follow the rabbinic ruling in the end. From the rabbinic perspective, this group of Tiberians seem to be members of the people of Israel whom they hope to bring under their orbit so that they will conform to what the rabbis believe is the correct way of practicing the traditional Judaean way of life.⁷²

Presumably, however, these Tiberians—and, for that matter, each of the overlapping subgroups of Judaeans—had their own ritual authorities who determined how they would practice these and all traditional rituals. As Annette Reed writes with respect to Judaean believers in Jesus, “contrary to the tendency to treat the rabbis as the sole arbiters of halakha in late antique Judaism, some of [the late antique authors and communities who appear to have accepted Jesus as a special figure in salvation history] seem to have been no less preoccupied with matters such as dietary restrictions and ritual purification.”⁷³ It is possible that these other Judaeans simply decided on their own what this practice should be, yet I find it far more likely that they turned to alternative authoritative arbiters of the tradition. Part of the reason for this conclusion is that a unique understanding of what was proper observance often defined difference between subgroups. For the rabbis of the Mishnah, for instance, differing observance defined the ‘am hā’ārets, the “sinners,” and perhaps the people of a given city. So, too, according to the Mishnah, a particular approach to the Temple and possibly to menstrual purity laws helped define the Samaritans.⁷⁴ The Christian text Didascalia Apostolorum, likely contemporaneous with the Mishnah, provides similar evidence that even among Judaean believers in Jesus, a unique version of how rituals should be practiced was also defining of difference. Describing different groups of heretical Christians, the authors write: “Again others of them taught that a man should not eat flesh, and said that a man must not eat anything that has a soul in it. Others, however, said that one was bound to withhold from swine only, but might eat those things which the Law pronounces clean.”⁷⁵ For each of these two groups of (Judaean) Jesus-believing “heretics,” a distinct view on proper biblically based ritual practice defines them against the other as well as against “proper” Christians (in the authors’ view).⁷⁶ Each subgroup thus seems to have tied its identity to a particular view of correct practice and so must have had its own ritual authorities and experts to determine what this practice should be.

Who were these other ritual authorities? The people of cities and towns—common Judaeans—likely had their own leaders and, in the case of Sepphoris and Tiberias, perhaps even official leaders. Local leaders, even if they embraced Roman culture and ritual practice, may have claimed authority to determine how Judaean ritual or hybrid Judaean-Roman ritual should be performed. Alternatively, there may have been experts, perhaps scribes or others devoted to the interpretation of Torah and traditional law like the rabbis, to whom the leaders may have delegated this responsibility or to whom the people turned. Two types of individual Judaeans may have been particularly suited to function as legal-ritual experts for the common Judaeans of cities or villages: the priest and the synagogue leader. Priests traditionally served just this role of legal-ritual expert, as evidenced by Josephus’s claim that in his youth (he was a priest), the high priests would consult him for his expertise on ta nomima (“customs,” “legal matters,” or perhaps traditions of the Torah).⁷⁷ Abundant evidence, including that of the Mishnah, shows that despite the loss of the Temple, many continued to be identified as priests.⁷⁸ These priests may not have formed separate groups—as evidenced by the presence of a number of priests in the rabbinic group—yet individual priests may have continued to claim traditional authority to determine ritual practice, and groups of Judaeans may have sought (non-rabbinic) priestly expertise.

Though there are no explicit references in the Mishnah to such competing priestly authority, there are hints of such competition. On more than one occasion, brief narratives recall courts of priests in Temple times that seem to stand in contrast to and in competition with the main court or with sages—groups that, I will argue, the rabbis saw as their predecessors in Temple times. Thus in Mishnah Rosh Hashanah 1:7, a certain doctor named Tōviyāh (Tobias), together with his freed slave, witnesses the first sliver of the new moon: “and the priests accepted him and his son but invalidated his freed slave. And when they came before the Court [bēit din], they accepted him and his freed slave, but invalidated his son.”

The story is presumably set in Temple times (indicated by “the Court”), but in depicting a group of priests who form an alternative to the (pre-)rabbinic Court, it is quite likely projecting contemporary tension with competing priests back into Temple times.⁷⁹ In another passage, Rabban Yoḥanan ben Zakkai, of the earliest generations of rabbis, criticizes the priests’ interpretation of a verse that tends to serve their own advantage. Though it is unclear whether in the story Yoḥanan ben Zakkai refers to priests of his own generation, and thus whether the text imagines groups of post-destruction priests who claim competing legal-ritual authority, the passage suggests that such competition may have existed even in the time of the Mishnah.⁸⁰

In addition to priests, a second type of functionary who may have exerted authority over ritual practice was the synagogue leader. Though there is no uncontested archaeological evidence of monumental synagogues—large-scale decorated synagogue buildings of a variety of architectural types—in Roman Palestine at the time the Mishnah was produced, the Mishnah and several early Christian texts presume that the institution of the synagogue (בית הכנסת [bēit hakkĕneset] in the Mishnah) existed, and there is evidence that there were non-monumental synagogues at the time.⁸¹ On a number of occasions in the Mishnah and Tosefta, there is mention of leaders or functionaries in the synagogue (rōsh hakkĕneset or ḥazzan hakkĕneset) who play a central role in the performance of its ritual.⁸² If, as some argue, the rabbis had no authority in the synagogue, these leaders or functionaries of the synagogue may have been the ones to determine how ritual was practiced, and so may have been competition for the rabbis.⁸³ This may be why there is a case story in Tosefta Terumot 2:13 in which a synagogue head (rōsh hakkĕneset) consults with Rabban Gamliel over a matter of ritual practice. The story of such a functionary asking a rabbi to tell him how to act may well be a fantasy in which the competing ritual authority actually depends on a rabbi in order to know the proper way of doing the ritual. Despite the portrayal in this toseftan story, synagogue heads—who were likely associated with the “people” of a given city or with the non-rabbinic Judaean “commoners”—may in fact have had more authority than rabbis.⁸⁴

Among the other “hybrid” subgroups of Judaean society—whether or not they formed cohesive communities—there were likely also ritual authorities particular to those groups. These authorities, too, may have been political leaders or ritual experts without any particular political power. And they may have been priests, synagogue leaders, scribes, or others, like the rabbis, dedicated to the interpretation of the Torah and its traditional practices. To the extent that Romanized Judaeans, those engaged with Samaritan society (even perhaps full Samaritans), Judaean believers in Jesus, and those whom the rabbis believed observed the traditional way of life incorrectly were distinct from the “people of” a given city or village (that is, “common” local Judaeans), they likely had their own experts to whom they turned. The Christian Didascalia Apostolorum may be instructive on this point. According to the Didascalia (which may be, as Fonrobert argues, partially addressed to Judaean believers in Jesus within a larger Christian community), bishops are empowered to determine the detailed ritual practices such as are laid out in the text, and they are empowered to adjudicate disputes, perhaps through unofficial arbitration. The Christian community imagined in this text is subject to the authority of its leaders, who, according to the text, are ritual and legal experts.⁸⁵ In parallel, leaders of the various Judaean and hybrid groups likely claimed similar authority over their own communities.

Based on the various hints provided by the rabbinic and non-rabbinic evidence, it seems that others in Judaean society besides rabbis also claimed the authority to determine how traditional rituals should be performed. The rabbis were but one small group in the complex social and political landscape of late second-or early third-century Roman Palestine. As I argue, they aimed to be the ultimate authority over traditional Judaean practice, but others likely claimed the same authority.

The Roman Context and Cultural Mimicry

Living under Roman imperial rule in the presence of numerous expressions of the dominant colonial culture and competing against other Judaean groups and ritual authorities, the rabbis appear to have appropriated the model of the jurist in order to lay a unique claim for their own importance and power. As Amram Tropper has suggested, it is highly probable that the rabbis were familiar with this cultural model. Based on a variety of evidence, Tropper argues: “It [is] likely that Greek-speaking lawyers who possessed at least a rudimentary knowledge of Roman law flourished throughout the east. In short, the presence of Roman legal jurisdiction and Greek-speaking lawyers in the Near East indicates that the fundamentals of Roman law were probably well known throughout the Graeco-Roman environment in Palestine.”⁸⁶ Thus the rabbis would have been at least generally familiar with elements of Roman law and the institution of the Roman jurist. By fashioning themselves jurists of Jewish ritual law, the rabbis seem to be borrowing from the Roman cultural model with which they were familiar.⁸⁷

Following Beth Berkowitz’s insight in her analysis of rabbinic mimicry of Roman methods of capital punishment, this cultural mimicry can be seen as an “appropriation of power” achieved by “cleverly constructing rabbinic power out of the cultural materials of Rome.”⁸⁸ In Roman culture, legal ingenuity in juristic argumentation was a source of prestige for those of relatively high social standing who engaged in this activity. Indeed, Alan Watson argues that this feature of Roman law explains the continuing importance of legal interpretation by experts for many centuries.⁸⁹ Rabbis were not, for the most part, from the same upper stratum of society from which the Roman jurists emerged. Nevertheless, this model seems to have presented an opportunity for rabbis to attain a modicum of power or expand the minimal power they already had simply by fashioning themselves this way.⁹⁰

The rabbis mimicked Roman cultural forms pertaining to the law and legal practice in many ways, and this seems to be one of them. In addition to fashioning themselves jurists, the rabbis also appropriated Roman conceptions of capital punishment, as Berkowitz has shown; they imitated the form and ideology of the scholasticism and sophism of the Second Sophistic and perhaps even conceived of their traditional system of practice as law in imitation of Roman notions of the law, as Tropper has shown; and they mimicked the style of presenting legal material in a heterogeneous manner, as Simon-Shoshan has shown.⁹¹ In part, each of these similarities between the Mishnah and Roman literary and cultural forms stems from a shared cultural universe, as Tropper and Simon-Shoshan emphasize; but, as Berkowitz stresses, the rabbis’ use of Roman cultural models serves their ends specifically because they are from the dominant culture as well.

As Berkowitz demonstrates, rabbinic mimicry also involved resistance to the dominant Roman culture and its power. In modeling themselves on Roman jurists, the rabbis were not merely appropriating a Roman cultural model to advance their own cause; they were also resisting Roman dominance by asserting the importance of Judaean tradition and their own version of this tradition. Law, the rabbis insist, includes ritual practice and is not limited to civil and criminal law, as it largely is in the Roman legal system of the time.⁹² The inclusion of ritual law signals, moreover, that at the heart of the law is the Torah, in which law encompasses all these realms. The true law, in other words, stems from the Torah. By claiming to be jurists of Judaean ritual law, the rabbis are imagining themselves in a Roman mold, but they are also asserting the primacy of their ancestral tradition. This is precisely what distinguishes them from Romans. Because they claim to be purveyors of the authentic interpretation of the ancestral tradition, this is also what establishes their authority among Judaeans.⁹³ The rabbis, then, are not simply borrowing from the dominant culture; rather, they are negotiating multiple cultural models in order to carve out their own niche that is at the same time uniquely Jewish, uniquely Roman, and uniquely rabbinic.⁹⁴