On Claims of Authority and Writing

Cana Werman


The Claim of Authority and the Qumran Community

            The halakhic writings originating in the Qumran community, that was led by priests, teach of the development of the commandments of the Torah into a consolidated legal system already at an early date,[1] that in turn is indicative of attention and fidelity to the Torah and to the worldview that it delineates.[2] Once we penetrate the sectarian outer garb of these writings, we uncover details and general principles that are not characteristic of a dissident community. Consequently, these halakhot were possibly not the fruits of study by the members of the Qumran congregation, but rather had been formulated prior to the secession of the community. They probably came into the world in Jerusalem, among the Temple priests who engaged in the study of the Torah (are those the Soferim [scribes] mentioned in later sources?[3]) during the Second Temple period, before the sect came into being. The authority of the priests in halakhic matters ensued from the standing of the Temple, in which they served and which they dominated, as a religious and political center.[4] Furthermore, the very Torah that the priests developed gave them a role in its teaching: "They shall teach Your statutes to Jacob, Your Torah to Israel" (Deut 33:10).[5]  These laws, at Qumran, were committed to writing in various literary genres;[6] As regards the Temple, on the other hand, it has not been determined whether the conclusions of  this study were written down,[7] and if so, in which literary manner the principles and halakhot that had been formulated among the ruling priesthood were conveyed, whether as collections of midrashim, or as collections of laws.[8]

            In the middle of the second century BCE, upon the appointment of Hasmonean High Priests, their allies the Pharisees assumed positions of power in Jerusalem, where they imposed their halakhic system, that was faithful to popular traditions, and not to the written Torah, that struggled with these traditions.[9] The established Jerusalem priests had to decide whether to accept the halakhah implemented by the Pharisees, or to withdraw to a place where they could maintain the halakhah to which they owed allegiance. The priesthood split: one group, that from this time on would be known as the "Sadducees"[10] (? בית אבשלום)[11] chose to remain and accept the new reality. Their decision proved to be correct, since a generation later, during the time of John Hyrcanus, the reigns of power once again passed to the priests (Josephus, Ant. 13:196). Another group, known as the "Qumran community," elected to leave.[12]

            The departure of the latter from Jerusalem was also a withdrawal from the source of halakhic power. From this juncture on, they could not claim authority to explain, interpret, and expand the Scripture, for their connections with the Temple had been severed, and the priesthood no longer consisted of a single group. In other words, the members of the new Qumran community could no longer claim the authority rooted in the Temple and in the civil authority that the priests had enjoyed until the decrees promulgated by Antiochus. The Qumran community had to develop a different claim of authority, and indeed, we find two such claims advanced by the members of the community in justification of their halakhic approach. One drew authority from Sinai, and claimed that the interpretation of the Torah in accordance with the priestly halakhah had already been given to Moses. The other identified the source of authority with the leader of the community, the agent of God, who provided the community's members with the hermeneutical tools necessary for the study of the written Torah.

            The argument that the explanation and development of the Torah had already been given to Moses at Sinai, along with the Torah itself, appears in Jubilees and in the Temple Scroll.[13] According to Jubilees,[14] Moses received, along with the Torah engraved on stone tablets (in the words of Jubilees [1:1]: "Come up to me to] the mountain, [that I may give you] the [two] stone [tablets] - the Tor[ah and the commandment which I have written down to in]stru[ct them," in contrast with: "The Lord said to Moses: Come up to Me on the mountain and wait there, and I will give you the stone tablets with the Torah and commandments which I have written down to instruct them" [Exod 24:12]), another written Torah; this second Torah, however, Moses himself copies (based on: "Write down these words, for in accordance with these words I make with you a covenant and with Israel" - Exod 34:27). The purpose of the second Torah, the 'Torah and the te'udah [predestined history]', that expands and interprets the first Torah, is to stand before the people as a witness when the correct interpretation will be forgotten in the future: "[...] this Torah and te'udah will confront (them), fo[r they will forget all of my commandments, everything which I will co]mmand you" (Jub. 1:9, following: "Therefore, write down this poem and teach it to the people of Israel; put it in their mouths, in order that this poem may be My witness against the people of Israel [...] then this poem shall confront them as a witness" - Deut 31:19-21).[15]

            The second claim of authority, that speaks of the hermeneutical tools that were given to the members of the community, is set forth in CD. The author of CD believes that the aggregate of the commandments comprises the "revealed" commandments (that are stated explicitly in the Torah), and the "chidden" ones, consisting of the interpretations and laws that were disclosed only to the members of the community.[16] The author describes the process in which the latter are revealed by an exposition of a verse from the Song of the Well:


"The well which the chieftains dug, which the nobles of the people excavated, with the ruler, with their own staffs" [Num 21:18] - the well is the Torah, and those who dig it are the penitents of Israel who depart from the land of Judah [...] and the ruler is the interpreter of the Torah, of whom Isaiah said "and produce a tool for his work" [Isa 54:16]. And the nobles of the people are those who came to excavate the well, with the statutes which were ordained by the ruler to walk in them in the entire time of evil (CD 6:3-9).


            According to this metaphor, the "nobles of the people" are the members of the community, and the "ruler" is the interpreter of the Torah. The author explains the role of this exegete by comparing him to a smith, aided by a verse from Isaiah (54:16): "It is I who created the smith to fan the charcoal fire and produce a tool for his work." God created the smith, who in turn produces tools in order to continue to produce. The moral of this parable is that the interpreter of the Torah was sent by God to produce the tools needed for the exposition of the Torah, the "statutes" thus promulgated. The interpreter of the Torah transmits to the members of the community these statutes, that enable the Qumranites to continue the interpretation of the Torah and the revealing of the concealed commandments: "And the nobles of the people are those who came to excavate the well, with the statutes which were ordained by the ruler." The author of CD thereby presents the halakhic creative process as a combination of human intellectual activity and divine inspiration-revelation: it is the community's wise men who expound the Torah and uncover the hidden commandments, but this exegetical activity is feasible only by means of the tools that they were given by divine revelation.


The Claim of Authority by the Sages

            The necessity of the two claims of authority in the Qumran community will be discussed below. In this section, I will attempt to show that the two claims of authority inherent in the Qumran writings will likely aid us in discerning the two claims of authority advanced by the Pharisees and the Tannaim, two groups that (contrary to the priests) considered themselves as abiding by a collection of laws other than the Pentateuch delivered at Sinai.

            Josephus indicates that the Pharisees developed a ramified system of halakhot,[17] and that they were interpreters of the laws (J. W. 1:110-111; Ant. 18:12; J. W. 2:162). He does not speak of the Mosaic code, and it therefore cannot be claimed that the Pharisees were the interpreters of the written Torah.[18] Rather, Josephus' portrayal of this group matches the picture that emerges from the depiction of the halakhic activity of the Tannaim. Sages determine a halakhah; they discuss halakhic matters among themselves; they raise questions, which they decide by majority decision:

Just as the sage is the recipient of the tradition, having heard it from his teacher, he is also the molder of it, for his intellectual ingenuity and political instincts permit him to shape the collective embodiment of halakhic tradition in accord with his own vision.[19]

Consequently, even though the Tannaim concede that they are not the disciples of the Pharisees,[20] in their activity they are, in fact, the successors of the latter; each of these groups developed and formulated a collection of laws that is independent of the Bible.

            Similar to the Qumranites, the Sages (the Tannaim and their Pharisee predecessors) were forced to rely upon a claim of authority unrelated to the Temple (since those not of the priestly class never gained control of it), or to civil authority (since they held the reins of power for only a short period). I propose that as the Sages sought to impart authority to the collection of laws that they developed, they voiced two claims of authority, that resembled those of the Qumran community. Nonetheless, there are two significant differences between these sets of claimed authority. The first is that one of the claims of the sages preceded the other: the claim of a second Torah given at Sinai belongs to the Second Temple period, and had already been raised by the Pharisees, while the second claim of authority (the parallel of the Qumran reveal-hidden argument), that of divinely-inspired human development, dates from a later generation, and might possibly be ascribed to R. Akiva. The second dissimilarity is that in the early claim of authority by the sages, the second Torah given at Sinai is oral, and not written.

            Admittedly, no Second Temple period source explicitly links the halakhic system developed by the Pharisees with the Revelation at Sinai. As Jaffee demonstrated, in the Christian tradition the Pharisees characteristically preserve the tradition of the forefathers,[21] and Jesus charges them with preferring the tradition of the forefathers to the words of God Himself. Paul contrasts his way as a Pharisee, of fidelity to the tradition of the forefathers, to his way as a believer in Jesus, when he received a divine revelation (Gal 1:11-16). Consequently, divine revelation stands in opposition to tradition, that is a human creation. Josephus, as well, emphasizes Pharisee loyalty to the tradition of the forefathers, that is not written in the Torah of Moses (Ant. 13: 297-298; 17:41). As Fraade observed,[22] these texts do not claim that the tradition of the forefathers is of Sinaitic origin (also they do not assert that it is not written, only that it is not written in the Mosaic code; see below).

            I nevertheless would contend that the Pharisees set forth the argument of the two Torot, as it was similarly stated by their successors the Tannaim,[23] since the claim of two Torot (i.e., "Torahs") originating at Sinai, one in writing and the other oral, is embodied in the early stratum of Tannaitic literature, as in this disagreement in Sifra between the Tanna Kamma and R. Akiva:


"These are the laws, the statutes, and the instructions [torot]" [Lev 26:46] - this teaches that two Torot were given to Israel, one in writing and the other oral. R. Akiva said: Did Israel have two Torot? Were not many torot given to Israel: "This is the torah of the burnt offering" [Lev 6:2]; "This is the torah of the meal offering" [Lev 6:7]; "This is the torah of the guilt offering" [Lev 7:1]; "This is the torah of the peace offering" [Lev. 7:11]; "This is the torah: when a person dies in a tent" [Num 19:14]?[24] (112c [following MS. Vatican 31].


The view that two Torot were given at Sinai is presented in this teaching as axiomatic. R. Akiva, who lived about half a generation after the Destruction, was the disputant of this opinion, thereby going against the accepted opinion. He maintains that the biblical text cannot teach us how many Torahs were given at Sinai, since the Bible states that Israel had been given many torot.

            The assertion that the oral Torah had been given at Sinai appears in an additional Tannaitic source, Sifre on Deuteronomy, 351 (p. 408):


[1] "They shall teach Your statutes to Jacob" [Deut 33:10] - this teaches that all decisions [horayot] can issue only from their mouths, as it is said, "Every matter of dispute or assault is subject to their ruling" [Deut 21:5]: "dispute" [riv] refers to disputes concerning the [red] heifer [Num 19], disputes concerning the heifer [whose neck is broken - Deut 21:1-9], and disputes concerning the suspected adulteress [Num 5:11-31]. "Assault" [nega] refers to an eruptive plague affecting a person, an eruptive plague affecting clothing, and an eruptive plague affecting houses.

[2] "And Your Torah to Israel" [Deut 33:10] - this teaches that two Torot were given to Israel, one oral and the other written. Agnitus the general once asked Rabban Gamaliel to tell him, How many Torot were given to Israel? He replied: Two, one written and the other oral.


The verse that is the subject of this exposition authorizes the priests: "They shall teach Your statutes to Jacob and Your Your Torah to Israel." In the second part of the exposition [2], the exegete asserts that two Torot were given to Israel, despite the singular form of the word "Torah." Consequently, the existence of the two Torot is not directly deduced from the hemistich of the verse cited in proximity to this exposition ("And Your Torah to Israel"), it rather is derived from a reading of the verse in its entirety and the conclusions that are drawn from its two hemistiches. We shall examine the first section of the exegesis, that expounds the first hemistich. The exegete learns from "They shall teach Your statutes to Jacob" that the authority to instruct the people in the ways of proper conduct was indeed given to the priests, finding support from an additional verse (Deut 21:5), that limits this authority to riv and nega. A clarification of the essence of these two terms further restricts the priestly authority: nega is an eruptive affliction, the priestly role in relation to which is defined by the book of Leviticus: the identification of the affliction and the purification of the afflicted. Riv is not an ordinary disagreement, it rather is one of three instances that are liable to include such a conflict, but that are primarily a ritual ceremony: the red heifer (that removes corpse impurity); the heifer whose neck is broken (that is employed in the case of an unsolved murder); and the suspected adulteress (who is brought to the Temple in consequence of her husband's suspicions regarding her behavior). The Bible mandates that the priests participate in each of these ceremonies.

            This limitation of priestly authority sheds light on the second part of the exposition: the two hemistiches of the verse are placed in opposition to one another, and not as parallels:[25] the priests were given the statutes to teach to Israel, while Israel as a people was given the Torah. The exegete concludes from this that two Torot were given to Israel: the written one to the priests, and the oral one to Israel. The first section of the exegesis limits the power of the priests; the second empowers the Sages.[26]

            This exposition is set on the background of the clash between the authorities of the priests and those of the Sages, a conflict that can be understood only in light of the tension between these two groups in the Second Temple period.[27] We may therefore assume that this midrash contains echoes of the dispute that existed even prior to the Destruction, in which the Pharisees advanced their claim of two Torot.

            The exegete, who finds Biblical testimony for the authority of the Sages, seeks to entrench the standing of the halakhah of the latter in the political system of his time. He (or the redactor) accordingly appends to the exposition a dialogue between Agnitus the general and Rabban Gamaliel. Agnitus poses a question to Rabban Gamaliel: How many Torot were given to Israel? The formulation of the question indicates that the non-Jew knew what the Torah was, and was aware that more than one had been given to Israel. Such thorough knowledge by an outsider is not plausible, and so the conversation was no more than a figment of the redactor's imagination. This narrative, in which the exegete has Rabban Gamliel speak of two Torot from Sinai, was intended to afford the halakhic approach of the Sages formal status in post-Destruction Judea.

            The two midrashim, from Sifra and Sifre on Deuteronomy, teach that the claim of two Torot was advanced in the generation of the Destruction and before. Additional support for the early origin of the argument of two Torot given at Sinai may be inferred from the existence of the two claims of authority in the Qumranic writings. The need for the two different claims may be explained by the different audiences which the community addresses.[28] The claim of the revealing of hidden teaching was suitable for the internal audience of the community itself, since it believed that the interpreter of the Torah is the agent of God. When addressing the broader audience beyond the community, a different claim was required, since this audience did not accept the interpreter of the Torah and his status. The audience outside the community could have been receptive to the argument of two Torot, not only because this proposition was free of the sectarian axioms, but also because it was an adaptation of another conception of two Torot with which "the simple ones" outside the community were familiar: the written Torah and the oral Torah. The claim of authority raised by Jubilees, that of a second written Torah given at Sinai, is comprehensible only in light of the opposing claim of authority, that of an oral Torah from the desert mount.

            Intriguing testimony on this issue is to be found in Scholium on Megillat Taanit, regarding a dialogue between the opinion cited in Jubilees (the Scholium attributes it to the Boethusians) and the view professing the Sinaitic origin of the oral Torah.


One the Tenth of Tammuz ספר גזרתא was annulled and removed. For the Boethusians would write laws in a book, so that when a person should ask, they show him [the answer] in the book. The Sages said to them: Has it not been said already [in Scripture]: "... for in accordance with these words I make with you a covenant and with Israel" [Exod 34:27]; "in accordance with the Torah that they shall teach you, etc." [Deut 17:11], implying that it is forbidden to write [these laws] in a book? Another interpretation (דבר אחר ): [...] The Sages said to them: Has it not been said already [in Scripture]: "the Torah and the commandment which I have written down to instruct them" [Exod 24:12]; and it is further written: "Therefore, write down this poem and teach it to the people of Israel; put it in their mouths" [Deut 31:19]? "And teach it" - that is the written Torah (מקרא); "put it in their mouths" - these are halakhot [i.e., the oral Torah].

(MS. Oxford, Noam edition pp. 77-78)


In the first part of this passage, the sages reject the Boethusian claim that, besides the Torah, other writings were given at Sinai. The Boethusians write halakhot in a book, a person asks, and they show him what is written in a book. In other words, even though it is they who have written this book, they point to this tome that they themselves wrote as possessing Sinaitic authority. The Sages, in response, cite two verses, one from Exodus that is taken from the command that Moses received before he ascended Mount Sinai, and a second, from Deuteronomy. It is the former to which Jubilees refers: "And the Lord said to Moses: Write down these words, for in accordance with these words I make a covenant with you and with Israel" (34:27). This verse compared with the verse from Deuteronomy, that is the basis for the power of the Sages: "You shall act in accordance with ( על פי) the Torah that they shall teach you and the ruling handed down to you; you must not deviate from the verdict that they announce to you either to the right or to the left" (Deut 17:11). The midrash, employing analogous reasoning, concludes that also the covenant that was forged at Sinai and mentioned in the verse from Exodus ("for in accordance [על פי] with these words I make a covenant with you and with Israel") is al pi, that is, al peh - oral, and thereby undermines the claim of authority of the Boethusians (and of Jubilees).[29]

            In the second part, the Sages justify their position that an oral tradition may deviate from what appears in the written Torah, and cite two verses to which Jubilees refers. While Jubilees chose these verses because of their mention of writing ("which I have written down to instruct them"; "Therefore, write down this poem"), the Sages learn from a close reading of these verses that, along with the written Torah and the poem that was written (as formulated by the Scholium: "'And teach it' - that is the written Torah"), there is also an oral transmission: "'which I have written down' - 'to instruct them'"; "'write down - 'put it in their mouths.'" The Sages maintain that alongside the written Torah, the Pentateuch, an oral tradition meant to fashion what was transmitted in writing was also conveyed.

            We therefore have two Tannaitic sources that teach that the oral Torah constitutes an early claim of authority; and a slightly later composition reconstructs a dialogue between Boethusians, who present an opinion resembling that in Jubilees, and the sages, who present the claim of the "Oral Torah." The reconstruction assumes the contemporaneous existence of these two opinions, that is, even before the Destruction, in the time of the Pharisees. Although the dating of the Scholium is far from certain, its familiarity with the claim that was raised in Jubilees implies that it preserved earlier material.

            As was noted above, the Pharisees and the Tannaim were interpreters of laws, and they fashioned, expanded, and established halakhot as normative. An attempt to integrate the claim of Sinaitic origin of the oral Torah with the awareness of the continual development of this Torah appears in a difficult passage in t. Sot. 7:11-12 (ed. Lieberman: pp. 194-195; this citation follows MS. Vienna and the reconstruction by S. Naeh[30]):


He further expounded: "The sayings of the wise are like goads, and like nails firmly planted [are the masters of assemblies; they were given by one Shepherd]" [Eccl 12:11] - just as a goad leads the cow to bring life to the world, so, too, the words of Torah are life for the world, as it is said, "It is a tree of life" [Prov 3:18].

          Or, [one might propose]: just as a goad is movable, so, also, are the words of Torah? Scripture teaches: "and like nails."

          "Firmly planted" - just as a plant flourishes and grows, so, too, the words of Torah flourish and multiply.

          "Masters of assemblies" - those who convene and sit groups by groups, declaring the unclean "unclean," and the clean, "clean," for the unclean in its place, and the clean in its place. [...]

          "They were given by one Shepherd" - one God created them, one Provider gave them, the Master of all things, blessed be He, spoke them.


Although the sayings of the wise, that is, the words of Torah, live, flourish, and multiply, the Tosefta yet claims that "one God created them, one Provider gave them, the Master of all things, blessed be He, spoke them."

            A study, however, of Rabbinic expositions shows that some exegeses present a single Torah, and not two. For example, the following:[31]


Another interpretation of "May my discourse come down as rain" [Deut 32:2] - just as rain falls on trees and infuses each type with its distinctive flavor - the grapevine with its flavor, the olive tree with its flavor, the fig tree with its flavor - so, too, words of Torah are all one, but they comprise Mikra, Mishnah, Talmud, halakhot and aggadot (Sifre on Deuteronomy, 306, p. 339).


The "discourse" that God gives Israel - the Torah - is all one, that embraces all the branches of Rabbinic creativity. The midrash portrays a Torah that includes hidden things that the sages, by the power of their intellect, draw forth from it.

            The advocate of the oneness of the entire Torah does not accept the claim of two Torot, one in writing and the other oral, and he therefore must find another claim of authority. The Sages do advance such a claim, which is similar to the one of the Qumranites that God gave the members of the community tools with which to expound the Torah:


"He cared for him ( = gave him understanding [bina, yevonenehu])" [Deut 32:10] - with the Ten Commandments. This teaches that when each Commandment went forth from the mouth of the Holy One, blessed be He, Israel would perceive it, and know how much midrash is in it, how much halakhah is in it, how many a fortiori arguments are in it, how many arguments by verbal analogy are in it (Sifre on Deuteronomy, 313, p. 355).


            At the Revelation at Sinai, the people of Israel received understanding (binah) from God, and could delve into the profundities that issued from the Lord's mouth, that is, the ability to extract the world of halakhah of the Rabbis, in all its variations. This claim of authority is close, albeit not identical, to that set forth in Qumran. The members of the Qumran community believed that the "interpreter of the Torah" was sent to give them exegetical tools that would make possible the formulation of halakhot; in the above midrash, it is God Himself who gives, and to the people as a whole, the sense of understanding that facilitates the creation of the world of halakhah.

            These two exegetical passages from Sifre on Deuteronomy are anonymous, but it is evident that the Sage who voiced them also opposed the claim of two Torot given at Sinai. As we have seen, R. Akiva rejected the teaching by an anonymous Tanna who used the verse in Leviticus as a prooftext for the two Torot from Sinai argument, and these midrashim possibly reflect the view of the former.


The Claims of Authority and R. Ishmael

            To this point, we have examined the early Tannaitic claim of authority and the claim of authority that may reasonably be attributed to R. Akiva. We know, however, of the existence of a second school in the time of R. Akiva, that of R. Ishmael.[32] Midrashei halakhah were formulated in the latter school, but R. Ishmael voices no objection to the two Sinaitic Torot claim of authority. We shall now examine R. Ishmael's attitude to the biblical text and to the orally transmitted tradition, and derive from this inquiry which claim of authority he maintained. Our discussion will be based on an analysis of R. Ishmael's methodology as regards two halakhic issues. We will compare R. Ishmael's approach with the halakhah of Qumran (which might also reflects the opinion of priests in Jerusalem) and R. Akiva's approach.[33]

            The first topic is the law in Deut 21:10-14 of the beautiful woman captive of war. The book of Deuteronomy, like the other early biblical sources, permits marriage to a non-Jewess. The intention of law in Deuteronomy is only to restrict the possession of non-Jewish women taken captive in war, as well as sexual relations with them. The law mandates the gradual integration of the captive in the house of her captor. In a later period, the very permissibility of marrying a non-Jewess was called into question. This forms the background for the interesting question of how groups during and after the Second Temple period viewed the sanctioning of intermarriage that is at the basis of the law of the woman captive.

            First, the rewriting of the biblical passage in the Temple Scroll (col. LXIII, ll. 10-15):


When you go forth to war against your enemies, and I give them into your hands, and you take them captive, and you see among the captives a beautiful woman, and you have desire for her and would take her for yourself as wife, then you shall bring her to your house, and you shall shave her head and pare her nails. And you shall put off her captive's garb, and she shall remain in your house and bewail her father and her mother a full month; after that you may be intimate with her and possess her and she shall be you{r} wife. But she shall not touch your pure stuff for seven years, and she shall not eat a sacrifice of peace offering until seven years pass; only then she may eat.


Several interpretive and polemical differences infuse the rewriting. Since the husband is commanded to cut the woman's nails ("you shall pare her nails," instead of "she shall pare her nails"), he is required to trim them, and the commandment is not that she grow them (as R. Eliezer maintains in Sifre on Deuteronomy). The writer also replaces the term yerah (month, that implies following the lunar cycle, and does not accord with the solar calendar of the Qumran community) with the neutral hodesh. Most importantly, the Qumran scroll adds a sentence that establishes the impurity of the captive woman: "But she shall not touch your pure stuff for seven years, and she shall not eat a sacrifice of peace offering until seven years pass; only then she may eat." This text thereby undermines any possible marriage, by asserting that the woman is impure and is not permitted to touch pure foodstuffs. A wife who cannot bear her share of the household's burden will be a weight around her husband's neck, and not even her beauty will compensate for her not functioning in the kitchen. The Scroll therefore transforms permission to marry a non-Jewish woman into a prohibition.

            The midrash from the school of R. Ishmael (Midrash Tannaim, 127-28), unlike the Temple Scroll, accepts the Biblical law [2], albeit after first expressing its negative opinion concerning the act [1]. Later, however, it adds something original, and notes the existence of the possibility of conversion [3]:[34]


"And you see among the captives a beautiful woman" - Scripture only speaks against the Evil Inclination. It is preferable for Israel to eat the flesh of dying animals that have been properly slaughtered than that of animals that have expired [without ritual slaughter]. To what is this comparable? To the son of a king who desired something that he cannot have. His father persuades him, and says to him, "My son, if you eat this, it will harm you." When he [the father] saw that he [the son] did not take heed, he said to him "Do such-and-such, and you shall not come to harm." This is the meaning of "and put off her captive's garb."

[2] "You shall bring her into your house" - so that he shall not press her [to yield to him] during the war.

"And she shall shave her hair" - for if he were to regard her hair as beautiful and pleasing, [to counter this] it therefore is said, "and she shall shave her hair."

"And she shall put off her captive's garb" - for if he were to regard her garb as beautiful and pleasing, [to counter this] it therefore is said, "and she shall put off her captive's garb."

[3] "She shall remain in your house lamenting her father and mother a full month; after that you be intimate with her and possess her" - to what case does this apply? [The case that] she did not accept upon herself to convert; but if she agreed to convert, he has her immerse, and she is permitted to him immediately.


The school of R. Ishmael therefore accepts the biblical law: the woman is permitted to him following a period of acclimatization that extends for a month, after it is determined that the man does indeed desire her, even while she is stripped of her beauty, without her hair and without the garment that she wore when taken captive. But R. Ishmael also adds another option: "but if she agreed to convert, he has her immerse, and she is permitted to him immediately" [3]. Conversion, that is not in Scripture, is mentioned here as a possibility that the husband and the captive woman may choose. The captive becomes a Jewess; the period of acclimatization is unnecessary, and she is immediately permitted to him.

            And now, for the teaching by R. Akiva in Sifre on Deuteronomy:


"She shall lament her father and mother" - father and mother, literally; the opinion of R. Eliezer. R. Akiva says, Not her [actual] father and her mother, this rather [refers] to idolatry, as it is said, "They said to a tree, 'You are my father'" [Jer 2:27]. (Sifre on Deuteronomy, 213, p. 246).


            R. Akiva interprets in allegorical fashion the biblical demand to allow the woman to bemoan her father and mother. According to his exegesis, the woman is required to forgo idolatry. The demand made of a convert to renounce paganism guides R. Akiva to find in the biblical passage the obligation to convert the non-Jewess prior to marrying her, and not permission to marry her while she is not a Jew. He does not accept conversion as an alternative to the biblical law, but as the sole option.

            Accordingly, R. Ishmael accepts both the biblical law that permits marriage to a non-Jewess and conversion, that was an innovation in his time; while R. Akiva does not accept the permission to marry in its simple sense, and authorizes marriage only after conversion, going so far as to find in the passage a prooftext for this act.

            Another halakhic issue that is disputed by the schools of R. Akiva and R. Ishmael, and by these two schools and the Qumran halakhah, is that of the permissibility of slaughtering nonconsecrated animals. Chap. 17 of Leviticus is central to the prohibition of consuming blood. The Qumranites (and maybe other priests as well) regard this chapter as cardinal, and claim that it forbids the slaughtering of nonconsecrated animals: every beast that one desires to slaughter must be brought to the altar, its blood should be put on the alter to atone for the slaughtering; the eating of blood is totally prohibited, since "the life of the flesh is in the blood" (v. 11). The priestly halakhah reads Deut 12 in the light of Lev 17, and restricts the broad permission granted in Deuteronomy to slaughter an animal anywhere and pour out its blood "like water."[35]

            R. Ishmael's understanding of Lev 17 is akin to the halakhah at Qumran. He maintains that chap. 17 forbids the slaughtering of nonconsecrated animals, and commands that the slaughter of any animal may be conducted only in the Sanctuary. R. Ishmael, however, in contrast with Qumran, does not impose Lev 17 on Deut 12. He accepts that when the Israelites entered the Land of Israel permission was granted to eat nonsacred meat:


"I shall eat some meat" [Deut 12:20] - R. Ishmael says, The sole purpose of this ccriptural passage is to permit nonsacred meat. Initially, nonsacred meat was forbidden to them; when they entered the Land of Israel, nonsacred meat was permitted to them (Midrash Tannaim on Deut 20, p. 52);

"And you say, 'I shall eat some meat,' for you have the urge to eat meat" [Deut loc. cit.] - R. Ishmael says, This testifies that nonsacred meat was forbidden to Israel in the wilderness, and when they entered the Land, Scripture [MS. Oxford: Sages] granted permission to them (Sifre on Deuteronomy, 75, p. 139).


"Sages [or "Scripture"] granted permission" to the Israelites to slaughter nonconsecrated animals. On the one hand, R. Ishmael acknowledges the simple meaning of the chapter in Leviticus, while, on the other, he proclaims the revocation of its applicability upon entering the Land of Israel. Intriguingly, the ms. version ascribes the permission to the Sages, and not Scripture. Was R. Ishmael aware of the possibility of a less than total lifting of the prohibition in Lev 17, believing that it was the sages who granted full permission, similar to the sanctioning of conversion that they conceived?

            R. Akiva, unlike R. Ishmael, does not subscribe to the view that chap. 17 forbids the slaughtering of nonsacred animals. He finds no contradiction between Lev 17 and Deut 12: "The purpose of the verse is solely to teach you the commandments set forth in it" (Sifre on Deuteronomy, 75, p. 140), and the entry to the Land of Israel therefore changed nothing in this respect.

            A comparison between the approaches to the woman captive and the slaughtering of animals taken by R. Akiva and R. Ishmael reveals that the former proclaimed the unity of the Torah, that is all-encompassing, with no internal contradictions. The claim of authority that he advances corresponds to this general view: a single Torah was given, with the tools necessary for its comprehension and exposition. R. Ishmael, in contrast, subjects Scripture to a careful reading, and presents what emerges from the simple meaning of the biblical text. His colleagues call him a "mountain palm" (Sifra, Tazria 68b) - i.e., a palm that bears no fruit - because of his refusal to set forth daring exegeses and impose on Scripture what is not in it. On the other hand, R. Ishmael presumes the existence of halakhah that "circumvents" (comes with cunning - Arukh ha-Shulhan) Scripture, that is, the halakhah accords with the detail in the Bible, but expands it and permits additional details,[36] accepts the interpretation of the Sages that raises a contradiction between the different books of the Torah ("Sages granted permission to them" for the slaughtering of nonsacred animals when they entered the Land of Israel), and acknowledges the existence of a system of halakhot that is an alternative to the Bible (conversion). He cannot propose that "the Torah is all one," and consequently cannot agree with R. Akiva's claim of authority. The most suitable claim of authority for R. Ishmael's halakhic methodology is that of a second Sinaitic Torah, as adapted by the Tosefta, namely, that the oral Torah given by God contains also what was conceived by the sages. R. Ishmael accepts that the additions, changes, and expansions are the words of God that are voiced by the sages.

            We see, therefore, that two schools believed in one Torah: the priestly school that existed during the Second Temple period (even though the priest in Qumran did speak about two Torahs) and the school of R. Akiva. The priests were loyal to the written Torah, its spirit, and the worldview inherent in it. R. Akiva established a single Torah by subordinating the written Torah to the tradition that was developed independent of the written text. The Pharisees endorse the existence of two Torot, while expressing their allegiance to only one, that was given orally at Sinai. R. Ishmael affirms the existence of two Torot, both of which he examines and interprets.[37] R. Ishmael's method of expounding the written Torah is similar to that of the priestly school, that posited a single Torah, but when one must decide between the two Torot, he favors the oral one.


A Reexamination of Assumptions and Concepts

            An analysis of the different conceptions regarding the essential nature of Torah and the claims of authority raised by the priests in Qumran, the Pharisees, and the Tannaim may shed fresh light on concepts that appear in the Tannaitic literature, and aid in a reexamination of several scholarly assumptions regarding this literature.


(1) the prohibition of writing in the Rabbinic literature

            It is commonly accepted that the teachings of the Tannaim (and their Pharisaic predecessors) were not committed to writing, due to the prohibition of writing the oral Torah.[38] I wish to reexamine this assumption, based on the above discussion.

            The concept of the "oral [al peh] Torah" is a claim of authority present in the early Tannaitic stratum, that attributes the tradition of the fathers (at least its beginning) to teachings that were orally transmitted to Moses at Sinai, in addition to the written Torah. The term originates in a verse from Exodus (34:27): "for in accordance with [al pi] these words I make with you a covenant and with Israel," and in its interpretation, that makes use of the verse in Deuteronomy (17:11): "in accordance with [al pi] the Torah that they shall teach you." The concept "oral Torah" does not include the argument that what was given orally at Sinai is to be transmitted in similar fashion, merely that these teachings were given orally at Sinai, and are not included in the written Torah.

            In consequence, we need not assume that whatever was given orally at Sinai was subsequently transmitted orally. As long as the one who commits these teachings to writing is cognizant of their original Sinaitic oral transmission, no harm has been done to the source of their authority. Nonetheless, the advocate of the "oral Torah" claim might be cautious when writing, especially during the writing of nonmidrashic collections of laws, due to his quite likely fear that the transition to written form might blur the claim of authority of oral conveyance at Sinai. In any event, the advocate of the claim of authority that we have ascribed to R. Akiva (that rejects the theory of two Torot from Sinai, and maintains that exegetical freedom was given to Israel), would not issue a blanket prohibition against writing.[39] R. Akiva's claim of authority assumes that whatever is not Scripture is a human creation (under divine inspiration): both the Midrash that clearly distinguishes between Scripture and what is inferred from it; and the halakhot, that are a derivative of the exegetical process and were not given at Sinai.


(2) halakhot

            A second concept worthy of reexamination is that of "halakhot." A comparison of the Mishnah and the Tosefta teaches that the term could be understood in two senses:


Mishnah Hag. 1:8

Tosefta: Hag. 1:9;  Eruv.

[The rules governing] the release from vows hover in the air

[The rules governing] the release from vows hover in the air

and have no [scriptural text] to rely on

And have no [scriptural text] to rely on,

But a sage may release in accordance with his wisdom

The halakhot of  Sabbath, Festival offerings, and sacrilege are as mountains hanging by a hair, for [the teaching of] Scripture thereon is scanty, and the halakhot many

The halakhot of  Sabbath,[40] Frestival offerings, and sacrilege are as mountains hanging by a hair, for [the teaching of] Scripture thereon is scanty, and the halakhot many


They have no [scriptural text] to rely on.

In this regard R. Joshua said, Tongs are made with tongs. [But] who made the first tongs? They were created

The torts, the Temple service, the purity laws, and the forbidden sexual unions

The torts, the Temple service, the purity laws, and the forbidden sexual unions,

and added to them are [the halakhot of] valuations, things declared herem [], and things declared sacred,

have abundant Scripture, a lot of exegesis and  halakhot

They have that [in Scripture] to rely on

They have that [in Scripture] to rely on

These are the essentials of the Torah

Abba Yose ben Hanan says, These eight bodies of the Torah are the essentials of  halakhot




            The Tosefta speaks of two types of halakhot: "[...] and the halakhot many, they have no [scriptural text] to rely on", and "[...] and the halakhot many, they have that [in Scripture] to rely on". Those of the first type (Sabbath, Festival offerings, and sacrilege) are based on scanty Scripture, and the numerous halakhot therefore have no textual support. Halakhot of the second type (torts, the Temple service, the purity laws, and forbidden sexual unions, valuations, declarations of herem, and sanctifications) are based on abundant Scripture, that enables exposition from which numerous halakhot are derived ("a lot of exegesis halakhot") that have scriptural support.

            I maintain that R. Joshua endeavors to impart authority to the first category of halakhot, as well. He asserts that even halakhot that are based on scanty Scripture, and are not derived from the Bible, are nevertheless a divine work: "They were created." R. Joshua compares the halakhot to tongs, that can be produced only by another pair of tongs; consequently, the first was a divine creation.[41] Accordingly, there are two categories of halakhot possessing sanctity: the first type originates in the word of God, and the second is derived from the words of the Torah. The Tosefta attests to the ambiguity of the term, that applies both to laws transmitted independently of the biblical text, and to those that are the result of an exegetical process.

            The Mishnah (in which the term "halakhot" appears only 6 times, in contrast with the 36 instances in the Tosefta), takes care to use this word in only one context ("the halakhot of the Sabbath, Festival offerings, and sacrilege are as mountains hanging by a hair, for [the teaching of] Scripture thereon is scanty, and the halakhot many"); nor does this section contain the declaration present in the Tosefta: "They [these halakhot] have no [scriptural text] to rely on", since they do have, according to the Mishna, a scriptural basis. Consequently, the Mishnah has no need for the dictum by R. Joshua, that imparts divine authority to halakhot that do not enjoy scriptural support.


(3) a halakhah given to Moses from Sinai

            In light of this, the term "a halakhah given to Moses from Sinai" bears investigation. This phrase appears only a few times in the Tannaitic sources: (a) in m. Peah 2:6 R. Simeon of Mizpah, Rabban Gamaliel, and Nahum the scribe from the Gazit Chamber discuss the question of "one who sows his field with two kinds of wheat," and the ruling that is delivered is defined as a halakhah given to Moses from Sinai; (b) m. Yad. 4:3 and t. Yad. 2:16 discuss the type of tithes set aside in the seventh year in Ammon and in Moab, and R. Eliezer ben Hyrcanus declared that the giving of ma'aser oni (the tithe of the poor) is a halakhah given to Moses from Sinai; (c) t. Suk. 3:5 discusses the source of the rite of the arevah (willow) in the Temple procession. The Tanna Kamma maintains that this law is a halakhah given to Moses from Sinai, while Abba Saul derives it from Scripture; (d) Sifra 34d-35a cites a disagreement between R. Akiva and R. Eliezer ben Azariah concerning the measure of oil required for the bringing of a thanksgiving offering. R. Akiva expounds biblical verses, while R. Eliezer ben Azariah argues that the measures (as well as the number of days between one menstrual cycle and the next) are a halakhah given to Moses from Sinai.

            The two last controversies teach that some Tannaim thought it possible to derive such halakhot from scriptural verses, while those dissenting argued that these are halakhot given to Moses from Sinai. Consequently, this expression, "a halakhah given to Moses from Sinai," means an independent halakhah, that is not derived from textual exposition.[42] According to one of the meanings given in the Tosefta, what is defined as "a halakhah given to Moses from Sinai" is equivalent in meaning to the term "halakhot"; the addition "to Moses from Sinai" indicates that whoever coined this term was of the opinion that "halakhot," without further specification, are the result of biblical exegesis.

            The question immediately arises: if this worldview thought that unspecified "halakhot" are derived from the Bible, why did the creators of the term "a halakhah given to Moses from Sinai" not insist on finding biblical support for the former? Although it is difficult to definitively answer this question, the sources in which this term appears seem to be of later origin. These sources assume that "halakhot" are derived from the Bible, but seek to preserve the Pharisaic halakhic approach in several areas.

            A study of the four instances of this term verifies our premise. (i) The law of the arevah in the Temple procession echoes the controversy from the Second Temple period, and was a practice opposed by the priests.[43] The Sages therefore insisted on preserving the (Pharisaic) assertion that this was a God-granted law, even though not written in the Torah. Abba Saul, who expounds the verse, apparently belonged to a later stratum, for which the controversy was no longer relevant. (ii) The Tosefta and the Mishnah relate that the discussion of which tithe was given in Ammon and Moab in the seventh year was conducted in the study hall, and was resolved by a majority decision. The expression "a halakhah given to Moses from Sinai" did not arise during the discussion, but only later, when the sages tell R. Eliezer ben Hyrcanus of the study hall decision. It is R. Eliezer who contends that this is "a halakhah given to Moses from Sinai"; this expression is therefore seemingly voiced by a sage known to us as a leading exponent of the Pharisaic way in the world of the Sages, and does not necessarily reflect the opinion of his students. (iii) Comparably, the mishnah that discusses the obligation of peah in a field sown with two types of wheat tells of very early generations, during the Second Temple period, when the Gazit Chamber was still in existence. (iv) The disagreement in Sifra is between R. Akiva, who derives the law from biblical verses, and R. Eliezer ben Azariah, who seeks to avoid exegesis, and mentions an orally transmitted tradition. We learn, therefore, that those who use the term "a halakhah given to Moses from Sinai" write from the perspective of R. Akiva, while still seeking to maintain the Pharisaic conception, or the early Tannaitic notion.



            The Pharisees subjugated themselves to the worldview of the oral Torah, and not that of the written Torah. R. Ishmael was attentive to Scripture, but preferred the oral Torah when delivering legal rulings. R. Akiva continued the development of the oral Torah, and elected to afford it superiority over the verses of the written Torah. In no stage in the development of the halakhah of the Sages can we find any parallel to the halakhah developed by the priests, that was faithful to the written Torah and its spirit. A single similarity remains between the priests and the Sages, namely, the claims of authority that they used to explain to the simple ones among the people why the latter should accept their halakhic way, and reject the other.

[1] A. Schremer ("'[T]he[y] Did Not Read in the Sealed Book': Qumran Halakhic Revolution and the Emergence of Torah Study in Second Temple Judaism," in Historical Perspectives: From the Hasmoneans to Bar-Kokhba in Light of the Dead Sea Scrolls [ed. D. Goodblatt et al.; STDJ 37; Leiden: Brill, 2001], 105-26) argues that the members of the Qumran community were the first to engage in the exegetical study of the Torah because of a halakhic controversy that arose in their time. Schremer implies that Torah study began in 150 BCE. The very existence of a halakhic disagreement, however, speaks of the prior development of the halakhah, leading us to assume the existence of Torah study (at least among one of the groups) before the withdrawal of the Qumran community. Prolonged Torah study among the elite and in the center of the nation's religious life may explain the existence of interpretive traditions that were common to different groups and that appear in various writings over the course of centuries. For the identity of these shared traditions, see: J. L. Kugel, Traditions of the Bible (Cambridge, MA: Harvard University Press, 1998); M. Kister, "A Common Heritage: Biblical Interpretation at Qumran and Its Implications," in Biblical Perspectives: Early Use and Interpretation of the Bible in Light of the Dead Sea Scrolls, DTDJ 28 (ed. M. Stone and E. Chazon; Leiden: Brill, 1998), 101-11.

[2] This appears to be the definition for the concept of "priestly halakhah," that is frequently used when discussing halakhah in Qumran: a halakhah whose fundamental constitution is the Pentateuch, and whose laws are fashioned in accordance with this constitution, while attempting to resolve contradictions and rule between inconsistent sources. This halakhah acquired additional characteristics when adapted by the Qumran community, a sect with an apocalyptic worldview.

[3] E. E. Urbach ("The Derasha as a Basis of the Halakha and the Problem of the Soferim," Tarbiz 27 [1958]: 173 [Hebrew]) describes the activity of the soferim (the comparison of parallels, the application of something explicit in another place, the resolution of conflicting texts, and more). Unlike Urbach, I do not believe that such activity should be called "derashah." I find no evidence of the existence of a group of authoritative Sages (the predecessors of the Rabbis) in the period of the Soferim, leading me to disagree with Urbach, who paints a picture that includes this group. See also below.



[4] See a survey of the ruling classes during the Second Temple period in: D. Goodblatt, The Monarchic Principle (Tubingen: J. C. B Mohr, 1994). As was shown by Goodblatt, there are no echoes in second Temple literature of any representation of the common people in any form of government.  

[5] Thus, the Sadducee argument that the Torah is "committed to writing" (see M. Kister, "Additions to the Article 'בשולי בן סירא'," Leshonenu 53 [1989]: 44-45), but not concealed in some obscure corner, and all that is necessary is to study it.

[6] A. Shemesh and C. Werman, "Halakhah at Qumran, Genre and Authority", DSD 10 (2002): 104 -129.

[7] The 'Book of Decrees' mentioned in Megillat Taanit is discussed below. For the claim that the Temple Scroll is of  Sadducee origin, see note 13.    

[8] The halakhic part of Aramaic Levi Document, a pre-Qumran priestly writing formed as a collection of laws, might give as a clue. However, the solar calendar of 364 days, hinted at in the Levi Document, points to an origin in an oppositional group. Thus, we can not deduce from Levi Document clear conclusions regarding the genre that was used by the Temple priestly circles. 

[9] On an ancient tradition preserved by the Pharisees see: M. Kister,  “Some Aspects of Qumranic Halakhah”, in The Madrid Qumran Congress: Proceedings of the International Congress on the Dead Sea Scrolls, Madrid, 18-21 March 1991 (ed. J. T. Barrera and L. V. Montaner; STDJ 11/2; Lieden: Brill 1992), 571-588.

[10] As was shown by D. Schwartz (id.,"On two Aspects of Priestly View of Descent at Qumran", in Archaeology and History in the Dead Sea Scrolls. The New York University Conference in Memory of Yigael Yadin [ed. L. H. Schiffman; JSPS 8; JSOT/ASOR Monographs 2; Sheffield: JSOT, 1999], 159) the name 'Sadducees' itself is a sign of opposition to the Hasmonaean family.

[11] Habbakuk Pesher 5:9; M. Stern, Hasmonaean Judaea in the Hellenistic world: Chapters in political History (ed. D. R. Schwartz; Jerusalem: The Zalman Shazar Center for Jewish History, 1995), 57-58 and n. 26 (Hebrew). 

[12] To intensify the rift with the rest of the nation, the Community embraces 364 days calendar. Of Babylonian origin (W. Horowitz, “The 360 and 364 Day Year in Ancient Mesopotamia”, JANES 24 [1996]: 35-44) this calendar is presented to Enoch by the angel Uriel in I Enoch. The author(s) of I Enoch also put a statement in Uriel mouth, declaring that in the future, because of the people sins, the celestial bodies will change their root. The Author thus claims that 364 days calendar can not be in use in his days. The Use of the 364 days calendar by the Community members is a revolutionary act.

[13] The prevalent scholarly view is not inclined to ascribe sectarian authorship to these two compositions, since, so the scholarly perception, they contain no hint of the rift within the Jewish people or of a sectarian worldview that distinguishes between the elect group and the sinning multitudes. If, however, we accept the 364-day calendar as a touchstone of sectarian authorship, then these two compositions, that assume a calendar of 364 days, were indeed written (or redacted) within the Qumran community. Moreover, as I demonstrated in my essay:"The Book of Jubilees and Qumran", Megilot 2 (1994): 37-55 (Hebrew) Jubilees does relate to the existence of a separatist and elect community.

[14] The first column of the Temple Scroll is not preserved, and therefore we cannot know just how the claim of authority was presented. The second column of the scroll contains a rewriting of Exod 34, that speaks of the Revelation at Sinai. We may conclude that the Revelation served as background for the presentation of the Scroll.

[15] C. Werman, "The תורה and the תעודה Engraved on the Tablets", DSD 9 (2002): 75-103.

[16] A. Shemesh and C. Werman, "Hidden Things and their Revelation" RQ 18 (1998): 409-427.

[17] This enables us to understand the charge leveled in the NT (Matt 23:2) that the Pharisees see themselves as sitting on Moses' seat, that is, occupying the seat of the legislator.

[18] A fact overlooked by M. S. Jaffee, Torah in the Mouth (Oxford: Oxford university Press 2001), 53 and many others. A survey of the disputes between Beit Hillel and Beit Shamai is included in: M. Fish and H. Shapira, "פולמוסי הבתים: המחלוקת המטא-הלכתית בין בית שמאי לבית הלל", Iyunei Mishpat 22 (1999),461-497 (Hebrew). Most of the disputes are not the outcome of different reading of Scriptures and do not include derashot. A critical studies of the figure of Hillel and comments on the small number of the midrashim attributed to him are found in: I. M. Gafni, The Jews of Babylonia in the Talmudic Era: A Social And Cultural History (Jerusalem: The Zalman Shazar Center for Jewish History 1990),68-76 (Hebrew); D. Henshke, Studies in the Method of "שני כתובים המכחישים זה את זה", Proceeding of the Eleven World Congress of Jewish Studies c\1 (Jerusalem: The World Union of Jewish Studies,1994), 39-46 (Hebrew); D. R. Schwartz, "Hillel and Scripture: From Authority to Exegesis", Hillel and Jesus (ed. J. H. Charlesworth and L. L. Johns; Minneapolis: Fortress Press, 1997), 335-362.

[19] Jaffee, Torah, 73-82.

[20] Jaffee, Torah, 55-56.

[21] Jaffee, Torah, 45-50. I do not accept his assumption, however, that the tradition of the forefathers was derived from exegesis of Scriptures.    

[22] S. Fraade, “Literary Composition and Oral Performance in Early Midrashim”, Oral tradition 14 (1999): 41.


[23] A. Yadin statement that the term "תורה (שב)על פה" "does not occur in Tannaitic sources" is surprising.  A. Yadin, "4QMMT, Rabbi Ishmael, and the Origin of Legal Midrash", DSD 10 (2003): 130, n. 6.

[24] I have not been able to determine the identity of the speaker in the following lines of the midrash:

 "[...] that the Lord established between Himself and the Israelite people" [Lev 26:46] - Moses merited to be an emissary between Israel and their Father in Heaven. "Through Moses on Mount Sinai" [idem] - this teaches that the Torah, the halakhot, and their details and interpretation were given by Moses at Sinai.



[25] See J. Fraenkel, דרכי האגדה והמדרש  (Givatayim: Yad latalmud, 1991), 139-145 (Hebrew) on the use of this method in the creation of midrash.

[26] It therefore need not be argued, as does Finkelstein, that the midrash consists of two independent sections, and that the multiplicity of the Torot is derived from the plural "Toratekha," that was known to the exegete from the version recorded in LXX. See L. Finkelstein, Sifre on Deuteronomy (New York and Jerusalem: Jewish Theological Seminary, 1993), 408 (Hebrew).

[27] On suppression of priests in another tanaaic source see: M. D. Herr, "continuum in the Chain of Torah Transmission" Zion 44 (1979): 43-56 (Hebrew).

[28] Shemesh and Werman, "Halakhah at Qumran", 123-129.

[29] The presumption that the sages uttered the verse that describes the Sinaic Revelation teaches that the controversy centered around the question of authority, and not that of the writing. Consequently, the conclusion "this teaches that it is not to be written in a book" is not from the original stratum, but rather a later addition.

[30] S. Naeh, "עשה לבך חדרי חדרים: עיון נוסף בדברי חז"ל על המחלוקת", in Renewing Jewish Commitment: The Work and Thought of David Hartman (ed. A. Sagi and Z. Zohar; Tel-Aviv: Hakibbutz Hameuchad Publishing House, 2001), 863 (Hebrew). 

[31] This citation and the next were translated by S. Fraade, See S. D. Fraade, From Tradition to Commentary (Albany: State University of  New York, 1991) 96, 60-61.    

[32] A. Yadin ("4QMMT, Rabbi Ishmael",136-140) recently proposed that R. Ishmael represented the priestly orientation, and was not of the Pharisaic school. Yadin indicates that R. Ishmael does not transmit tradition; his teacher instructs him in exegetical methodology, and not in halakhah, and R. Ishmael uses the terminology of oral transmission for the exposition of the Torah. I shall show (below) that the halakhah of R. Ishmael differs from the priestly halakhah known to us at Qumran. Furthermore, the fact that R. Ishmael is not a transmitter of tradition teaches us nothing, for R. Akiva similarly does not transmit tradition; like R. Ishmael, he, too, is a disciple of a teacher of exegetical methods.

[33] For the differences between the two schools in methodology and vocabulary see a survey by: M. Y. Kahana, The Two Mekhiltot on the Amalek Portion (Jerusalem: The Magnes Press, 1999), 15-19 (Hebrew).

[34] For the transition from גרות =a state of a stranger, to גיור=conversion see: C. Werman, The Attitude toward Gentiles in the Book of Jubilees (The Hebrew University of Jerusalem: Dissertation, 1995), 258-278.

[35] C. Werman, "The Rule of Consuming and Covering the Blood in Priestly and Rabbinic Law", RQ 16 (1995): 621-636.

[36] As D. Henshke ("Two Subjects Typifying the Tannaitic Halakhic Midrash," Tarbiz 65 [1996]: 427-34 [Hebrew]) demonstrated, R. Ishmael's teaching of the three instances (the covering of the blood with earth; the bill of divorcement; and the awl used to pierce the slave's ear) in which the halakhah circumvents Scripture is meant to reject midrashim that seek to limit, in accordance with the spirit of the Bible, the type and number of means to be used for covering, writing and piercing. The halakhah, according to R. Ishmael, permits all: the slave's ear may be pierced with any instrument; a writ of divorce may be written on anything; and the blood may be covered in any manner. R. Ishmael contends that the halakhah presumably is based on Scripture, but cunningly distances itself from the Bible. We should not conclude from R. Ishmael's statement that he believes that, except for these three cases, the halakhah corresponds to Scripture; consequently, we cannot state, as A. Yadin did ("4QMMT, Rabbi Ishmael", 135) that R. Ishmael contradicts the view of the Sages.

[37] R. Ishmael, who restored the position of the written Torah in the two-Torot theory, would likely use the same terms to elucidate each. We need not accept the hypothesis by A. Yadin ("4QMMT, Rabbi Ishmael", 137-140) that the application of terms familiar to us from the transmission of oral traditions (such as "shamanu" - we heard; "le-kayem" - to affirm; "diber ba-hoveh" - the Torah spoke in contemporary terms) in relation to the written Torah is indicative of disregard for the oral Torah.

[38] For the different opinion on the subject see: S. Naeh, "The Structure and Division of Torat Kohanim (A): Scrolls", Tarbiz 66 (1997): 505-512 (Hebrew).

[39] It is now clear why the prohibition to put halakhot in to writing is only according to the school of Rabbi Ishmael (and only in the Babylonian Talmud [60:b]).

[40] S. Lieberman, S. Tosefta Ki-fshutah: A Comprehensive Commentary on the Tosefta (vol. 3: Order Moed [Shabbat-Eruvin]; New York: 1962), 468-469: regalim (festivals) instead of shabbat.


[41] The contrast between the writings of the Qumran community and the Tannaitic position when using the same metaphor is noteworthy. In CD God creates the smith (the interpreter of the Torah), who in turn produces the first instrument that is then used to produce additional instruments; in R. Joshua's teaching, it is God who creates the first instrument from which the sages develop additional tools. This difference clearly shows that the sect needed a leader, while, for the Sages, the exposition of the Torah is not dependent upon a leader or institution.


[42] C. E. Hayes, "Halakhah le-Moshe mi-Sinai in Rabbinic Sources a  Methodological Case Study", in The Synoptic Problem in Rabbinic Literature (ed. S. J. D. Cohen; Brown Judaic Studies, Program in Judaic Studies 326; RI: Brown University 2000), 61-117. 

[43]  J. L. Rubenstein, The History of  Sukkot in the Second temple and Rabbinic Periods (Atlanta: Scholars Press 1992), 106-117