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Chapter 2

The Temple, the Great Court, and the Rabbinic Invention of the Past

The makeup of society in Roman Palestine at the time the Mishnah was written and the place the rabbis claim for themselves within that society provide an important context for understanding how the rabbis remember the past and how the past they remember is shaped by and functions within the present. In this and the following two chapters, I take up three key ways in which the mishnaic Temple ritual narratives, as memories and as Temple discourse, make a powerful claim for the authority of the rabbis, one small group within the larger complex social landscape of Roman Syria Palaestina. These three aspects of the rabbinic narration of the Temple ritual of the past help the rabbis assert their own primacy as legal interpreters and the primacy of their version of the traditional way of life—as against the various alternative versions that existed among competing subgroups within society.

In this chapter, I discuss one key component of the rabbinic memory of the Temple in the Mishnah’s Temple ritual narratives—an aspect of this memory that is fundamentally bound up with the place the rabbis assert for themselves in post-destruction society, the largely made-up “character” within these narratives: the Great Court. On multiple occasions in these narratives, the rabbis invent a key role in the performance of Temple ritual for the Great Court, and they portray the Great Court as an institution with ultimate authority over the way Temple rituals were carried out. The rabbis construct the Court and its members as their predecessors in Temple times, so the past in these accounts functions as a mirror on the present, reflecting the image of the rabbis as they see themselves. And the memory of the past, in which the rabbinic predecessors are legal-ritual authorities, makes an argument for rabbinic legal-ritual authority in post-Temple times. By inserting the Court into the past, the rabbis are asserting the antiquity of and providing a myth of origins for the role they claim for themselves within society.

The Great Court and the Rituals of the Temple

Throughout the Mishnah, not just in Temple ritual narratives, the court appears numerous times in an abstract sense, as a legal body that hears and adjudicates cases (or the location where this judicial institution engages in its activities), as well as in the concrete historical sense, as a legal institution existing in the time of the Temple. When referring to the purportedly historical Court of the Second Temple era, the Mishnah uses a number of different terms: בית דין (bēit din, Court), בית דין הגדול שבירושלים (bēit din haggadōl shebiyĕrushālayim, the Great Court in Jerusalem), and סנהדרין/סנהדרים (sanhedrin/sanhedrim = synedrion [council, court]).¹ Members of this court are called זקן or זקנים (zākēn or zĕkēnim, elder or elders). In the Mishnah’s narratives about events from Temple times—and, to an extent, throughout the Mishnah—the terms are essentially interchangeable, and each of these terms seems to refer to the institution of a central, authoritative court and its members.²

The Mishnah’s historical Court from Temple times is an adjudicatory body, as can be seen in the Mishnah’s accounts of how the Court carried out its judicial procedures—which I will call “judicial” or “court-centered” ritual narratives. Perhaps the most famous rabbinic text of this type is the narrative in Mishnah Sanhedrin 4:3–7:1, about how the Great Court would adjudicate capital cases and mete out the death penalty. In this and similar narratives describing how the Court used to carry out its functions—including adjudication in financial disputes—the Court carries out characteristically judicial tasks.³ It hears testimony, adjudicates the case, renders a verdict, metes out punishment, and delivers speeches meant to instill fear in the witnesses, a process called איום (’iyyum).⁴

These particular Court functions are not surprising because courts in numerous societies and cultures, including those in the Roman Empire in classical to late antiquity, have performed and do perform many of these functions. What is striking about the appearance of the Court in the Mishnah’s narratives about ritual in Temple times is that it is said to have been intimately involved in a variety of Temple rituals and, more important, to have had ultimate authority over these rituals. The Mishnah’s insistence that the Court is important in the realm of Temple ritual may explain why the single mishnaic subgenre, the Temple ritual narrative, includes descriptions of both Temple ritual and purely judicial ritual (which I call “court-centered ritual narratives”). As Martin Jaffee has pointed out, the genre focuses on “the most important institutions in ancient Palestinian Jewish society: the Jerusalem Temple and the Sanhedrin.”⁵ The reason for this dual focus seems to be that in the Mishnah, the two institutions are not distinct but are intertwined. The Court, according to the narratives about Temple-era ritual, is an authoritative body in the domain of the judicial and the domain of the Temple and its ritual.

The Court’s Role in Temple Ritual

There are three ways in which Temple ritual narratives establish the authority of the Court to determine Temple ritual practice: by asserting that the court was involved in and had control over the ritual procedure; by recounting sectarian resistance to the correct ritual procedure established by the Court; and by narrating the Court’s changes to ritual procedure when ritual fails. The first way, inserting the Court into the ritual and giving it authority over the procedure, can be seen most clearly in two examples: parts of the Day of Atonement narrative in Mishnah Yoma 1:1–7:4; and parts of the red-heifer narrative in Mishnah Parah 3:1–11. In both these biblically mandated rituals, most of the ritual performance is done by a priest—the high priest in the case of the Day of Atonement narrative, and the “priest who burns the cow” in the red-heifer narrative.⁶ Yet at a certain point in each of the rituals, a group of “elders” (זקנים) become involved in the procedure. The Court and its members in these examples seem almost to intrude on the otherwise exclusively priestly affair.

According to the narrative in Mishnah Yoma, the Day of Atonement (יום הכיפורים) ritual begins “seven days before the Day of Atonement”:

שבעת ימים קודם ליום הכיפורים מפרישים כהן גדול מביתו ללישכת

פרהדרין

Seven days before the Day of Atonement, they separate the high priest from his house [and bring him] to the Parhedrin chamber [lishkāh] [in the Temple]. (Yoma 1:1)

The first chapter of Mishnah Yoma proceeds to describe what can be called preparations before the Day of Atonement, which take place during this entire week and during the day and night before the Day of Atonement. It is during these weeklong preparations that members of the Court become involved ritually and play an important role:

ג’ מסרו לו זקנים מזקני בית דין קורין לפניו בסדר היום ואומרין לו אישי

כהן גדול קרא אתה בפיך שמא שכחתה או שמא לא למדתה ערב יום

הכיפורים בשחרית מעמידין אתו בשער המזרח ומעבירין לפניו פרים

ואלים וכבשים כדי שיהא מכיר ורגיל בעבודה’ ד’ כל שבעת הימים לא היו

מונעין ממנו מאכל ומשתה ערב יום הכיפורים עם חשיכה לא היו מניחין

אותו לוכל הרבה שהמאכל מביא את השינה ה’ מסרוהו זקני בית דין לזקני

כהונה הוליכוהו לעליית בית אבטינס השביעוהו ונפטרו והלכו להן

ואומרין לו אישי כהן גדול אנו שלוחי בית דין ואתה שלוחינו ושלוח בית

דין משביעין אנו עליך במי ששיכן את שמו בבית הזה שלא תשנה דבר

מכל מה שאמרנו לך הוא פורש ובוכה והם פורשים ובוכים’

(1:3) They gave [the high priest] elders from among the elders of the Court. They read him the order of the day [from the Torah]. And they say to him, “Sir high priest, read with your own mouth [yourself] in case you forgot or in case you never learned [it]!” On the eve of Yom Kippur in the morning, they stand him at the eastern gate and they lead the bulls and rams and sheep before him so that he will be familiar with the service.

(1:4) All seven days, they did not used to keep food or drink from him. On the eve of the Day of Atonement from when it became dark, they used to not allow him to eat much, for food leads to sleep.

(1:5) The elders of the Court handed him over to the priestly elders and led him to the bēit avṭinās upper chamber and adjured him and took leave, and left. And they say to him, “Sir high priest, we are the emissaries of the Court and you are our emissary and the emissary of the Court. We adjure you by the One who caused His Name to dwell in this house that you not make any changes from what we have told you.” He separates and cries, and they separate and cry.

The elders of the court do not appear again during the ritual of the day itself, yet they are central in the preparations. According to the narrative, their role includes instructing the high priest in the correct procedure and ensuring that he will follow their instructions precisely. As non-priests, the elders of the court are necessarily peripheral to the main ritual, but in their role in the preparatory stages, they appear to be critical to ensuring correct performance.

An identical body of elders, this time called “the elders of Israel,” plays a similar role in the red-heifer narrative in Parah. Strikingly, this narrative begins with language nearly identical to that of the Day of Atonement narrative:

שבעת ימים קודם לשריפת הפרה מפרישין כהן שורף את הפרה מביתו

ללשכה שעל פני הבירה צפונה מזרחה ובית אבן היתה נקראת

Seven days before the burning of the heifer, they separate the priest who [will] burn the cow from his house [and bring him] to the chamber [lishkāh] that is facing the northwest of the birāh [the Temple], and it was called bēit ’even [the place of the stone].⁷ (Parah 3:1)

The nearly identical language may suggest that one of the accounts is built upon the other or simply that the two narratives draw from a common pool of formulaic language and ritual elements. Either way, the strikingly similar opening creates a strong resonance between the two narratives. And the red-heifer narrative seems consciously aware of such a resonance when it explicitly mentions the Day of Atonement ritual and compares the ritual sprinklings for the red-heifer preparation with those of “the Day of Atonement” (3:1)—sprinklings not mentioned in the Day of Atonement narrative.

The resonance between the two narratives continues in the special role played by the “elders” in the preparatory stages of the ritual.⁸ In the red-heifer narrative, we are told that there was an arched ramp that led from the Temple Mount to the Mount of Olives, where the ritual would be performed (3:6). The cow would be led along this ramp (3:7). But before the heifer is led out to the place where it was to be slaughtered and burned on a pyre, we are told, the elders become involved and perform some unusual ritual actions:

ט’ זקני יש’ היו מקדימין ברגליהם להר המשחה ובית טבילה היה

שם ומטמין היו את הכהן השורף את הפרה מפני הצדוקים שלא יהוא או’

במעורבי שמש היתה נעשית י’ סמכו ידיהן עליו ואומ’ לו אישי כהן

גדול טבול אחת וירד וטבל ועלה ונסתפג

(3:7) … The elders of Israel⁹ used to walk to the Mount of Olives before the heifer arrived. And a place of immersion was there. And they would render the priest who burned the heifer impure. [They did this] on account of the Sadducees—so they would not say that the ritual was performed by one whose purification included waiting until sunset.¹⁰ (3:8) They placed their hands on him and said to him: “Sir high priest, immerse yourself once!” He went down and immersed himself and came up and dried off.

It is unclear why this text uses the biblical expression “elders of Israel,” a phrase not appearing in the biblical red-heifer narrative of Numbers 19. Yet the strong parallel with the Day of Atonement narrative, together with other mishnaic uses of the term “elders”—in one instance, “elders of Israel”—to refer to the Great Court suggests that these are the same elders of the Court as in the Day of Atonement narrative.¹¹ And as in the Day of Atonement narrative, these elders play a role in the preparation for the ritual, rather than in the ritual itself. In this case, before the cow is led to the Mount of Olives (הר המשחה), court members come to the site and perform the ritual actions of rendering the priest impure and saying a ritual utterance. Though the actions seem strange, they are a form of preparation that again ensures that the ritual is performed correctly—in this case, according to the non-Sadducean view that the priest need not wait until sunset after being purified before performing the ritual.

The Court’s role in these two rituals is different from its role in the judicial narratives. There are no witnesses and there is no courtroom, adjudication, or verdict. Here, the Court members play a role in Temple-centered ritual. Though their involvement is ultimately peripheral to the larger ritual performance, their limited role establishes and demonstrates that they have authority over the entire ritual. According to both narratives, the Court is empowered to ensure that the procedure is done correctly or according to the correct view; indeed, in both cases the narrative presumes that the priests are forced to follow the dictates of the Court. Even in the ritual actions taken, the Court’s authority is in evidence. By formulaically ordering the priest, addressing him as “Sir high priest” and ordering him, “Immerse yourself once!” (Parah 3:8) or “read with your own mouth!” (Yoma 1:3), or addressing him in a similar manner and adjuring him to perform the ritual according to what they have told him (Yoma 1:5), Court members establish their authority ritually, as the ones who determine which actions are taken and who can command the priest.¹²

In addition to their appearance in these two narratives, the Court and its members are found in as many as seven additional Temple-centered narratives. Their role in these additional narratives can be similar to that in Yoma and Parah, with the Court involved in a fully ritual matter, as is the case in the barley ‘ōmer offering narrative in Menaḥot 10:3–5, the sōṭah (accused adulteress) ordeal narrative in Soṭah 1:3–3:4, and perhaps the ritual palm branch narrative in Sukkah 4:4. Or they may have a more hybrid judicial-Temple ritual role, as in the ‘eglāh ‘ărufāh (broken-neck calf) narrative in Soṭah 9:1–9, in which the Court is involved in a ritual associated with priests and the Temple, which still has to do with the absence of justice for the abandoned body found, and in the priest-disqualification trial narrative in Middot 5:4, in which the Court adjudicates about the validity of individual priests in the Temple.¹³ In Rosh Hashanah 2:5–7 and perhaps Ta‘anit 2:1–5, the court plays a central role in rituals that are at least partially centered on the Temple—the determination and proclamation of the new moon and the fast-day prayers when there is no rain—though the Temple is somewhat peripheral to these rituals, which continue to be performed even after the destruction.¹⁴ These narratives vary in the degree of Court authority they depict; but in sum, they repeatedly portray the Court as involved in and with authority over the performance of ritual associated with the Temple in Temple times.¹⁵

Sectarian Resistance and Court Authority

A second way in which the Mishnah’s ritual narratives give the Court authority over Temple ritual is by depicting the Court exercising authority against sectarian resistance. As we have seen in the red-heifer narrative, Court members are involved in the preparation for the ritual “because of the Sadducees,” which seems to mean that they ensure that the procedure does not follow the Sadducean view. According to the narrative, members of the Court would intentionally render the priest impure and then ritually order him to immerse himself for purification. With this unusual procedure, it was guaranteed that he did not wait until sunset to become pure before performing the ritual (indeed, he did not wait at all). And because the sectarian-Sadducean view required him to wait until sunset, the procedure ensured that the performance of the ritual did not follow the sectarian view. By describing sectarian resistance and the Court’s role in quashing this resistance, the narrative puts the Court and no one else in the position of authority over the ritual.

This particular conflict about the nature of purification for the red-heifer ritual is evidenced in an earlier text, one of the Dead Sea Scrolls known as 4QMMT. This ancient scroll from the time of the Second Temple recounts the same divergence of opinion; but here, it is told from the point of view of the Mishnah’s tsadduḳin (Sadducees or perhaps Zadokites). According to 4QMMT, the priests involved in the ritual (in contrast to the Mishnah’s single priest) must wait until sunset to become pure in order to perform their tasks.¹⁶ For those living during the time of the Temple who produced 4QMMT, this and related conflicts over Temple practice helped define their group identity; but such was not the case for the rabbis of the Mishnah. As Shaye Cohen has argued, there is little evidence of such sectarian struggle during the post-destruction era in which the rabbis lived.¹⁷ In the red-heifer narrative, the rabbis recall such conflict not because it continued in their own day but because the memory of past sectarian disputes both created and demonstrated the authority of the Temple-era Court. As Catherine Bell has suggested, rephrasing Foucault, resistance itself helps create the power relationship.¹⁸ This is especially true in a literary account. The Mishnah’s inclusion of the Sadducean resistance provided the opportunity for its imagined Court to express its power to suppress this resistance.

Elsewhere in the genre, sectarians—called tsadduḳin, bēitĕsin,¹⁹ minim (heretics), and perhaps, in one instance, kutim (Samaritans)—are described as resisting in a similar manner on as many as four additional occasions.²⁰ One of these possible occasions is the Day of Atonement narrative. The Mishnah itself never mentions any sectarian conflict about how the Day of Atonement procedure is to be performed, yet the Tosefta and both Talmuds understand that the (potentially) sectarian high priest is forced to follow the dictates of the Court and not his own sectarian views. In each of these instances, sectarian conflict is the platform upon which Court authority over the details of the ritual rests.

The extent to which the Mishnah emphasizes the absolute authority of the Court against sectarian resistance can be seen in the contrast between the Mishnah and Tosefta in the way they imagine sectarians resisting. Three times, the Tosefta imagines a sectarian priest successfully following the sectarian version of Temple practice. On singular occasions, a Boethusian (bēitĕsi) or Sadducean tsadduḳi) manages to thwart the “correct practice” of the Day of Atonement ritual (Kippurim [= Yoma] 1:8), the red-heifer ritual (Parah 3), and the water-libation ritual (Sukkah 3:16).²¹ Two of these times, he dies within a few days, for defying either the sages or Rabban Yoḥanan ben Zakkai. The third time, he causes “the entire nation” to pelt him and damage the altar.²² The common consensus of “the entire nation” against the improper water libation and the supernatural punishments for performing the ritual in the sectarian way demonstrate that the sectarian view is incorrect. So, too, the seemingly singular nature of these events limits the extent of Sadducean or Boethusian influence. Yet by depicting sectarian priests following sectarian practice, the toseftan version allows that these groups (or this group) may well have had some, or even extensive, control over ritual practice. In the Mishnah, in contrast, sectarians are a threat to correct practice, yet they are never imagined actually having the power to perform the ritual according to their own views. The Tosefta does not mention any Court. In the Mishnah, there is a powerful Court that has fully suppressed the sectarians.²³

Ritual Failure and the Court’s Power to Change Ritual

A third way in which the ritual narratives give authority to the Court is by describing the Court making changes in ritual procedure when ritual fails.²⁴ According to the Mishnah, the Court is the body with the authority to make a change in how a ritual is performed every year. The role of the court in changing Temple ritual because of failure can be seen in a small section of the narrative describing the Day of Atonement ritual in the Temple, Yoma 2:1–2:2, a section that focuses on the regular clearing of the altar’s ashes:

פרק ב’ בראשונה כל מי שהוא רוצה לתרום את המזבח תורם בזמן שהן

מרובין רצין ועולין בכבש וכל הקודם את חבירו לתוך [ארבע] אמות זכה

אם היו שנים שוין הממונה אומ’ להן הצביעו ומה הן מוציאין אחת או

שתים ואין מוציאין אגודל במקדש ב’ מעשה שהיו שנ[י]ם שווין רצים

ועולים בכבש ודחף אחד מהן את חבירו ונשברה רגלו וכשראו בית דין

שהן באין לידי סכנה התקינו שלא יהו [תורמין] את המזבח אלא בפייס

(2:1) At first, whoever wanted to clear the ashes off the altar would clear off the ashes. When there were many interested [priests], they would run and go up the ramp of the altar, and whoever reached within four cubits first, won. If they were tied, the appointed one [mĕmuneh] would say to them, “Raise fingers!” [to decide the winner]. And what would they bring out? One or two [fingers], but they do not bring out a thumb in the Temple.

(2:2) It once happened that two who were equal were running and going up the altar, and one pushed the other and he broke his leg. And when the Court saw that they had come to danger, they decreed that henceforth they would determine who cleared the ashes by lots.

A useful framework for interpreting this and other accounts of ritual failure in the Temple ritual narratives can be provided by the theoretical study of what Ronald Grimes terms “infelicitous performances” of ritual.²⁵ As Grimes shows, ritual can fail in many different ways, which, in his perspective, means that it can fail to achieve the desired result, ranging from “flaws” or “hitches” in the procedure to “abuses” or “omissions.” More recently, Edward Schieffelin has argued that any account of ritual failure must acknowledge different ways of defining the phenomenon, both among ritualists and among theorists. In Schieffelin’s view, there are two fundamentally different ways ritual is thought to fail: the ritual performance can fail; or the ritual can fail to achieve its desired ends. The latter is a matter of “process” and the former a matter of “outcome.”²⁶

In Yoma 2:2, the ashes-clearing ritual has failed because it devolved into violence. One priest aggressively pushed another and caused an injury simply to win the right to perform the ritual. This suggests that the cause of the failure was a combination of a flaw in the procedure and a natural human tendency toward competition and conflict. The performance of the ritual failed because of the way the ritual was set up as a race and because one person executing the ritual acted inappropriately.²⁷ But this may be a matter of a failed outcome as well. The daily sacrificial rituals, following biblical ideology, were meant to ensure God’s presence and God’s favor, and the Day of Atonement ritual to effect purgation or atonement. Yet the way violence is pictured suddenly breaking out may suggest that this ritual is also normally meant to contain human conflict (through the ritual process itself).²⁸ But it did not in this case. As a result of failure of performance and the result of violence (whether or not this was a failure of the desired ends), the Court, according to the narrative, intervened and permanently changed the procedure to stem the violence and the “danger” it posed. A similar process of failure and the very same response can be seen in the example of the ritual for distributing lulāvim (ritual palm branches) in Sukkah 4:4:

מצות הלולב כיצד כל העם מוליכין את לולביהם להר הבית והחזנים

מקבלים מידם וסודרין על גג האיסטווה והזקנים מניחין את שלהן בלשכה

ומלמדין אותם לומר כל מי שהגיע לולבי בידו הרי הוא לו מתנה למחרת

משכימים ובאין והחזנים מזרקין לפניהם והן מחטפין ומכין איש את

חבירו וכשראו בית דין שהן באין לידי סכנה התקינו שיהא כל אחד

ואחד נוטל בביתו

The ritual of the lulāv [palm branch], how so?²⁹ The entire nation brings their lulāvim to the Temple Mount [on the day before the festival that coincided with the Sabbath]. And the superintendents used to receive [the lulāvim] and arrange them on the roof of the stoa. And the elders leave their [lulāvim] in the chamber [of hewn stone]. And they teach [the people] to say, “Whoever gets my lulāv, it is a gift for him.”

The next morning, they would arise early and come [to the Temple] and the superintendents throw [the lulāvim] to them, and they grab and hit one another.

And when the bēit din [Court] saw that they had come to danger, they decreed that henceforth each person shall ritually take the lulāv at home.

In this example, there is an apparent flaw in the procedure, which, because the people have a strong desire to get their own lulāv back, allows and even seems to encourage them to grab and beat one another up in attempt to get the one they want. Here, the violence and the danger it poses are prevented by the change that the Court makes to the procedure. The change corrects the apparent flaw and ensures that the natural competitiveness that leads to violence will be kept in check.

The question for my study of why ritual has failed in these mishnaic narratives is not a matter of social dynamics and ritual dynamics, as it would be for a cultural anthropologist or ritual theorist. The questions are not: How do the rituals function? What do the rituals do? Rather, because Temple ritual narratives are rabbinic representations of Temple ritual, the question of why ritual failed is more a matter of how and why the mishnaic authors claimed that Temple ritual failed.

As Grimes points out in his analysis of infelicitous ritual performance, ritual failure is a matter of judgment. For him, this is a theoretical problem. Yet for the study of a text as discourse, this is precisely what is of interest: Why do the rabbinic authors of these narratives engage in what Grimes terms “ritual criticism,” or judging the rite and its effectiveness?³⁰ Most fundamentally, as I have suggested, the rabbis’ portrayal of ritual failure asserts the authority of the Court to fix the ritual. The details of the ritual failure as narrated suggest certain nuances in the authority being claimed here. In imagining the court responding to the ritual failures and thus correcting the flaws, preventing improper actions by the ritualists, and ensuring that competitiveness and violence are contained, the narratives suggest that the Court had the authority to determine the details of the ritual procedure, to control the ritual actors, and to ensure harmony among the people of Israel.³¹ The Court, in this memory of the past, played an important role in the functioning of the Temple and, by extension, Israelite society.

The distance from which the Court makes these changes to ritual procedure, its absence from the performance itself, points to the nature of the ritual authority that the narratives give them.³² This particular expression of authority seems to derive from the Court’s expertise on Jewish ritual and law as well as from a power to legislate or, more precisely, to determine what the law is.

Comparative Evidence for the Court of Temple Times: A Rabbinic Invention

The elders and the Court who play such an important role in Temple ritual narratives do appear in earlier Jewish literature. The Hebrew Bible and the Septuagint frequently mention elders (זקנים [zĕkēnim] in Hebrew; presbyteroi, in Greek). In the Septuagint, the term gerousia, council, is frequently used where the Hebrew reads “elders,” suggesting a relationship between the two. Post-biblical texts, especially the works of Josephus and the Gospels and Acts, refer to both elders and councils, namely local political, legislative, or judicial bodies in Judaea in late Second Temple times, which are called synedrion, gerousia, boulē, or other Greek terms.³³ These earlier references to councils include the infamous synedrion (council) that tried and convicted Jesus. Traditional scholarship has generally assumed that the Mishnah’s Court and these councils are identical for a number of reasons. First, the Mishnah uses the Greek term sanhedrin to refer to the Court in a few instances. Similarly, both the Court and the councils appear to have some power to mete out capital punishment. And each institution appears to have a central role in Judaean society.³⁴ If we assume that the institution of the Court is the same as those appearing in earlier literature, or, more likely, that the rabbinic Great Court/Sanhedrin of the Mishnah is based (loosely) on the institution of the local council that existed in the past and is mentioned in earlier, pre-rabbinic, literature,³⁵ we can compare the Mishnah and the earlier sources. Such a comparison reveals unequivocally that the Mishnah is unique in giving the Court (or similar institution) a role in and authority over Temple ritual.³⁶ According to the pre-rabbinic sources, the earlier institutions were not involved in, and did not have authority over, ritual in the Temple.³⁷

Earlier scholarship on the Great Court or Sanhedrin already noticed this difference between the nature of this institution in the Mishnah and in the earlier literature, particularly the Gospels and Acts and the works of Josephus. Solomon Zeitlin, for instance, proposed that there were two different “Sanhedrins”: a political “Synedrion,” evidenced in the works of Josephus and the New Testament, which tried capital political cases; and a religious “Sanhedrin,” evidenced in rabbinic literature, which tried capital religious cases.³⁸ Adolf Büchler had already taken a similar position, arguing that there were two Sanhedrins: the one of rabbinic literature, which was a religious court dealing with religious law; and the one of Josephus and the Gospels, which was the highest political court dealing with criminal cases.³⁹

These earlier scholars treated all the sources as repositories of objective historical facts about these institutions and attempted to harmonize them. Perhaps a better approach, as espoused nearly two decades ago by David Goodblatt, is to explain the Mishnah’s Great Court as a rabbinic idealization of the earlier institution.⁴⁰ Thus those who composed, edited, and transmitted the Mishnah characteristically remember the historical institution of the “council” as a fixed judicial body located in the Temple and with authority over Temple ritual.⁴¹ In reality, or at least in the written representations of earlier sources, such an institution was not involved in, and did not have authority over, ritual in the Temple.

A single exception in the earlier Jewish sources is found in the works of Josephus in a passage in which a synedrion is involved in changing Temple ritual. This passage emphatically demonstrates that the synedrion was not ordinarily involved in such matters. In Antiquities 20:216–18, Josephus recounts an incident regarding King Agrippa, who was persuaded by the Levites to convene a synedrion, a council, to allow him to grant them “permission to wear linen robes on equal terms with the priests.”⁴² This council—possibly similar to the Mishnah’s Court—is involved in making a change to ritual practice in the Temple. But in this case, it is not the ultimate authority because the king is the one who actually makes the change. Furthermore, in Josephus’s view, the change to Temple practice here is exceptional because it violates “the traditional laws.” Presumably, the authority to interpret these traditional laws, in Josephus’s view, properly lies with those he calls elsewhere “priestly experts on the traditions.”⁴³ As Ellis Rivkin argues, Josephus treats this change as a political incursion into the realm of ritual, usually controlled fully by the priests.⁴⁴ The Mishnah’s frequent insertion of the Court into this role makes it seem natural that the Court controls ritual; but why should a court and its members play such a role? This role should be—and it seems was in fact—reserved for priests.⁴⁵

The Court and Its Members as Rabbinic Predecessors

Part of the reason that the mishnaic rabbis gave the Court and its members such an important role is that they understood them to be their Temple-era predecessors who transmitted to them authority over Judaean law and tradition. Two sets of evidence scattered throughout the Mishnah establish that the rabbis saw the relationship in this way. The first are the chain-of-transmission narratives that link rabbis to figures in the past through a chain of transmission; the second are the reports of taḳḳānōt, emendations or enactments made by rabbis and earlier legal authorities.⁴⁶

Chain-of-transmission narratives describe a series of transmissions from person to person or group to group whereby tradition in general, a tradition about a particular law, or authority travels through time from Moses at Sinai to an early rabbi or early rabbis. Some of these texts, particularly the first chapters of ’Avot, have been treated in detail in recent scholarly works.⁴⁷ Yet previous scholarship has failed to notice the prominence of the Court and its members as rabbinic predecessors.⁴⁸

The identification of the rabbinic predecessors as Court members occurs in three of the Mishnah’s five chain-of-transmission narratives. In two of the narratives, Mishnah ’Avot 1–2 and Pe’ah 2:6, a generic set of “pairs” (Pe’ah 2:6) or a detailed list of pairs of individuals—from Yose son of Yoezer man of Tseredah and Yose son of Yoḥanan man of Jerusalem (’Avot 1:4) to Hillel and Shammai (’Avot 1:12–1:15; and see 2:8)—precede the rabbis in the chain. Elsewhere in the Mishnah, in Ḥagigah 2:2, these pairs are referred to as nĕśi’im (plural of naśi) and ’ăvōt bēit din (chiefs of the Court).⁴⁹ Though significant evidence, largely circumstantial, has been marshaled to claim that naśi in the context of the chain means “patriarch,” a leadership position attested in Christian and Roman sources,⁵⁰ its simple meaning in the Mishnah is “leader of the Court.”⁵¹ Certainly, ’av bēit din refers to a position of Court leadership. While the single example of Mishnah Ḥagigah 2:2 does not prove that the pairs are considered court leaders in Mishnah ’Avot and Pe’ah 2:6, several additional examples throughout the Mishnah, as well as in the Tosefta, treat individual members of the pairs as leaders of the Court. In Tosefta Pisḥa (Pesaḥim) 4:14, Hillel is said to have been appointed naśi. Further, some earlier individual members of the pairs are said to have performed functions normally associated with the Court or the Great Court (or, Sanhedrin). Shimon ben Shetaḥ, a member of the pairs (Mishnah ’Avot 1:8), is said to have meted out the death penalty (Mishnah Sanhedrin 6:4) and to have threatened to excommunicate Ḥoni the circle drawer (Mishnah Ta‘anit 3:8), a power attributed to the Court in Mishnah ‘Eduyyot 5:6. Similarly, Shemaiah and ’Avtalyon (Mishnah ’Avot 1:10–11) are said to have enacted the sōṭāh (accused adulteress) ordeal ritual in Mishnah ‘Eduyyot 5:6, also a role given, at least partially, to the Court in Soṭah. Thus in multiple instances throughout the Mishnah, there is an assumption that the pairs who precede the rabbis in the two chain-of-transmission narratives are members or leaders of the Second Temple–era Court.⁵²

In addition to these two chain-of-transmission narratives that refer to “the pairs,” there is a third example, which has not previously been included in consideration of this mini-genre. In Mishnah Rosh Hashanah 2:9, a statement is made that connects Rabban Gamliel (and his bēit din) in Yavneh back to Moses through a series of courts (כל בית דין ובית דין, every single court) that span history “from the days of Moses until now (the time of Rabban Gamliel).”⁵³ In this case, the entire chain is imagined to be composed of courts linked in time from the biblical era to the earliest rabbi in the post-destruction era.⁵⁴ Taking the various chain-of-transmission narratives as variants of the same motif expressed differently in different contexts, there appears to be a recurrent assumption evidenced by this motif that the Court and its members preceded individual rabbis—and ultimately, all rabbis—in a chain of transmission going back to Moses. It is worth emphasizing that those who precede the rabbis are constructed as Court members and not Pharisees, as is typically assumed. As Shaye Cohen has demonstrated for rabbinic literature in general, “at no point in antiquity did the rabbis see themselves clearly as Pharisees or as the descendants of the Pharisees.”⁵⁵

The second body of evidence that demonstrates that the rabbis are seen as heirs of the Court consists of reports scattered throughout the Mishnah of taḳḳanot, or emendations made to particular laws.⁵⁶ In total, nineteen pericopae describe an emendation to a law using the formulaic word hitḳin (התקין, “he emended”) or hitḳinu (התקינו, “they emended”). They are attributed as follows (listing the number of pericopae;⁵⁷ arranged chronologically):⁵⁸

Anonymous	7
The early prophets	1
Bēit din (Court of Temple times)	3
Hillel the elder	3
Rabban Gamliel the elder	1
Rabban Shimon ben Gamliel	1
Rabban Yoḥanan ben Zakkai	3

The toseftan examples that expand the Mishnah’s list can be summarized similarly:⁵⁹

Shimon ben Shetaḥ	1
Rabban Gamliel	3
Rabbi (Yehudah the Naśi)	1
“Our rabbis”	1
(The sages)	(1)

What is significant about these lists of those who have made emendations to Jewish law is that all appear in the rabbinic chain of transmission.⁶⁰ Parallel to the chain-of-transmission narratives, the reports of taḳḳānōt assume that there exists a continuity between biblical institutions, the Court of Temple times, and the earliest rabbis. In the Tosefta, this extends further to Rabbi Yehudah the Naśi and to the rabbis in general.

According to the evidence of these two recurrent mishnaic motifs, the Court of Second Temple times and its members are seen as the rabbis’ predecessors. The rabbis are distinct from the Court, as evidenced by the consistent lack of the title “rabbi” in the Mishnah for these predecessors; yet the act of transmission provides continuity between the two.⁶¹ Furthermore, the chain of transmission provides a history and account of origins of Jewish law that establishes the legal authority of the rabbis.

Rabbinic Memory: Past and Present Legal Institutions in the Mishnah and the Argument for Rabbinic Authority

The authoritative role in Temple ritual that the mishnaic rabbis repeatedly imagine for the Court, as well as the relationship they claim to this Court, can best be explained in light of the role that the rabbis claim for themselves in their own time. As I have shown in the previous chapter, the rabbis picture themselves as legal authorities, jurists of traditional Judaean law, who have the power to determine how Judaeans practice traditional rituals and other cultural practices. Because they claim for themselves a legal role that provides authority over ritual practice, the rabbis imagine the ritual of the past to be controlled by a similar legal institution, and they invent a connection or possibly emphasize an existing connection to this past institution. Perhaps drawing loosely on earlier traditions about a council made up of elders, the rabbis create a past that mirrors the present as they would like it to be. They turn this council into a legal body, a Court, to which they give control over the most important rituals of the Temple era. The Court’s invented hybrid legal-ritual role reflects the hybrid legal-ritual role that the rabbis claim for themselves. Because they see the Court as their predecessors, their memory of an authoritative Court provides a historical foundation out of which the rabbis and their role emerge. The memory of the Temple expressed in ritual narratives thus creates a myth of origins for the rabbinic group and their legal-ritual role that makes a powerful claim for rabbinic authority in this role.

In narrating and recalling past Temple ritual, the rabbis are therefore creating a past for themselves that authorizes their own real or desired role—a role, they believe, that has always been central and has upheld tradition and correct ritual practice.⁶² The rabbinic memory of the past provides the rabbinic role with antiquity and establishes that those who have filled this role have always had authority. In the rabbinic view evidenced by the Mishnah, ritual law and practice in post-Temple times must follow rabbinic rulings just as ritual law and practice followed the dictates of their predecessors in the times of the Temple.⁶³