Tannaitic Halakha and Qumran: A Re-Evaluation
Joseph Baumgarten

With the publication of the known ‘halakhic’ Qumran fragments now complete, scholarly attention may be expected to focus on the broader contribution of the Scrolls to the study of early rabbinic law. Some of the controversies between the Qumran legists and the contemporary Pharisaic sages, designated†„¯_ȆÁϘ• in the sectarian literature, are already well known. The corresponding references in the Mishnah to debates between Ù¯Â_È̆and _„˜ÈÌ (perhaps a rabbinic designation for the Qumran •_Ȇ_„˜ ) have been identified. These findings provide significant illustrations of the antiquity of rabbinic halakhot pertaining to purity and the Temple. However, it is in my view important to explore not only the confrontations between Qumran ritual law and pre-rabbinic halakha, but also the areas of congruence in the elaboration of biblical antecedents. In a contribution to the forthcoming È„†È_Á˜†•Ô__•È volume on the Scrolls and talmudic Judaism I offered an initial sampling of more than twenty instances of substantive agreement in the interpretation of religious laws not apparent from biblical sources. For convenience I arranged them according to the six orders of the Mishnah. In this paper I would first like to direct attention to common elements in the elaboration of ˉ¯Â• (the laws of purity) despite the polemics on particular issues found in the Scrolls. Secondly, an evaluation of the approach to „È_Ȇ_Ù_• (capital penalties) in the two legal complexes is appropriate. Finally, the fundamental controversy concerning the lunar versus the solar calendar requires new evaluation in the light of more recent publications.

Before proceeding with these issues, a word about the bearing of the now available ‘halakhic’ fragments on the hypothesis identifying the Qumran community with the Essenes. In 1991 I listed seven details of Essene practice described by Josephus which were also documented at Qumran :

1. The Essene avoidance of anointing themselves with oil (JW 2, 123 ), is now known to stem from the role of liquids as potent transmitters of impurity (CD 12,16, 11QTemple 49,11)
2. The Essene loin cloth worn during ritual immersion (JW 2, 161), is likewise specified in 4Q512 : ÂÎÒ‰†‡•†•‚„ÈÂ.
3. Spitting banned at public assemblies (2, 147 and 1QS 7,13).
4. Essene Sabbath strictness is exemplified by the requirement that all food be prepared before and the prohibition of moving any utensil (2, 147; cf. CD 10,22 and 11,17.
5. Married Essenes avoided intercourse during pregnancy (2, 161); cf. 4Q270 fr.2)
6. The Essenes insisted on fulfilling their binding oaths even in the face of death (2, 161). This is likewise the teaching of CD 16,7-8 Ú„†ÓÁȯ†Ó•†‡Ï†ÈÙ„‰Â.
7. The Essenes banned commercial transactions between members of the order who were expected to supply each other’s needs without payment (2,127). The same rule is applied to the Qumran sectarians, perhaps neophytes, designated Sons of Dawn, in CD 13:14-15 : ‡È_†ÓÎφ•‡È†•¯È•†‡Ï†‡Ï†È_‡†Â‡Ï†È•Ô†Ï•_Ȇ‰_Á¯†ÎȆ‡Ì†ÎÛ†ÏÎÛ.

The identification of the Qumran covenanters with the Essenes emerged as a persuasive hypothesis based on multiple organizational parallels at the very beginning of Scroll research. However, some literary students of Josephus and proponents of the Sadducean connection prefer to remain agnostic, or even deny the validity of the Essene hypothesis. Pointing to Qumranic data which Josephus did not share with his Greek readers, they dismiss the salient communal and theological similarities derived from the ү͆‰ÈÁ„ as too general for any conclusion. In this regard we should consider that the foregoing halakhic congruities are well documented details, which can hardly be ignored by the historian. Moreover, to our list of Essene peculiarities found at Qumran we may now add their scruples about covering excrements with the hatchet given to all members. 4QHalakha C is a small fragment with a somewhat faded text which the editor read ÏÓÎÒȆ_Â. The editor observes that the reading _ is certain, but the earlier proposed translation ‘as a cover for the commandment’ is hardly intelligible. _ is the short form for _‡‰ as in Ugaritic and Akkadian, and the phrase ÏÓÎÒȆ _ refers to the Essene care to cover excrements. It is also likely that _ÏÈ_ in the following line refers to the utensil used for digging the trench mentioned by Josephus.

So much for details, not significant in themselves, but crucial for positive identification. Before leaving the Essene hypothesis, we may note a general link characterizing the Essene library and that found at Qumran. I am not sure whether in the abundant scholarly literature on Josephus and the Scrolls attention has focused on the fact that the Essenes were versed not only in ‘holy books’ and the writings of the prophets (2,159), but had their own ancestral prayers (2,128) and sectarian books (2,142). This would likewise be an appropriate description of the library found at Qumran. As far as we know, it contrasts with the unwritten Pharisaic transmission of their ancestral teachings

Having re-affirmed our continued adherence to the Essene hypothesis which I advocated in my 1954 dissertation, we may now turn to the exploration of common elements in Qumran and pre-rabbinic halakha. Some may question whether these two enterprises are compatible. Suffice it to say at this point that, despite different methods of transmitting their teachings, the existence of a body of Jewish common law shared by the Essenes of Qumran as well as the Pharisees should not a priori be left out of consideration. Let us weigh the evidence.

A. Tohorot

As we learn from the ‘halakhic’ scrolls and the Mishnah, the Qumran legists were in dispute with pre-rabbinic authorities over a number of purity issues, including the eligibility of a Ë•ÂφÈÂÌ to burn the red cow and sprinkle the water containing its ashes. The Pharisees apparently wished to use this central purification rite as a way of publicizing their teaching that immersion alone without waiting for sundown was effective for purification outside the sphere of the Temple. The •_Ȇ_„˜ of Qumran, perhaps called _„˜ÈÌ in Mishnah Yadayim, insisted that the priest performing this rite must wait for sundown after his immersion. Yet they, too, agreed that immersion by itself was effective after contamination to allow a person to eat non-sacred food. As Milgrom suggests the initial cleansing removed a layer of impurity, but further purification was needed for sacred purposes. The Rabbis, on their part, agreed that the†Ë•ÂφÈÂÌ could not enter the Temple precincts (mKelim 1:8). Thus the parameters of this dispute, despite its intensity, were rather limited.

Both sides agreed that the maintenance of purity by laymen and the eating of non-sacred food Úφˉ¯•†‰˜Â„_ were praiseworthy. Tannaitic sources describe the rules governing haberim who pledged to follow higher standards of purity. Prof. Lieberman early on noted similarities between the terminology in the tannaitic sources describing the haberim and the ү͆‰ÈÁ„. One of the substantive similarities was the greater restriction of access to liquid as compared to solid foods, as explicated in the Community Rule and Mishnah Demai 2:3. This was due to the fact that liquids were more potent transmitters of impurity, as noted above with regard to the avoidance of oil by the Essenes.

The standards of purity obligatory for different individuals were not uniform. This is well illustrated by the Temple Scroll elaboration of the biblical law concerning vessels found in a tent with a corpse. According to Numbers 19:15 ‘any open vessel with no lid fastened down’ becomes impure, from which one may deduce that a covered vessel and its contents are not susceptible. The Temple Scroll, however. limits the protective function of the cover to ordinary Jews ÏÎÂφ‡„̆ÓÈ_¯‡Ï. For those emulating more stringent purity ÏÎÂφ‡È_†Ë‰Â¯ any covered earthen vessel and its contents were considered contaminated (11QT 49, 8-10). Interestingly, a somewhat similar stringency was advocated by the school of Shammai with regard to utensils within the earthen vessel, even if the latter was covered by a lid (mEduyot 1:14) These departures from the literal implication of Numbers 19:15 may reflect the more stringent concern with ritual purity among pietists in the Second Temple period.

Second Temple literature as well as rabbinic sources indicate that purification before prayer was widely practiced. This likewise emerges from the description of the prayer of Levi in the Aramaic Levi document and accords with Cave 4 fragments from Qumran. I have summarized the evidence in a forthcoming paper.

As to the forms of purification, one of the innovative aspects of Second Temple practice was the use of pools, Ә‡•, for immersion. It was not obligatory to go to the sea or to rivers ÈÓÈ̆Â_‰¯Â• but as the Community Rule adds in its enumeration of means of lustration one may have recourse to ÓȆ¯Á_ (1QS 3,4-5), stationary pools of channelled rainwater such as those discovered at Qumran. The water must be sufficient to cover a man who immerses in it (CD 10,11). This was likewise the basis for the tannaitic minimum measure of forty seah for a miqweh. The archaeological features of six Qumran miqwa’ot have been found by Ronny Reich to resemble those of the standard Jerusalem type, though considerably larger. This is another significant congruity in the practice of purity.

B. Avoidance of Capital Penalties

In view of the general tendency of Qumran law toward greater rigor one might have expected that the sect would also be more severe in carrying out capital punishment. Indeed, A. Shemesh has noted the multiple additions to the list of biblical capital offenses in Jubilees and to some degree in the Temple Scroll. However, in order to assess the place of capital punishment in a legal system one must evaluate the procedural rules as well as the penal code. In rabbinic law the requirement of ‰•¯‡‰ , warning the offender by two witnesses of the consequences of his contemplated crime, is recognized as a factor leading to the practical elimination of the biblical death penalty. The source of this requirement may be, as suggested by Shemesh, in the meaning of the term Ú„È̆in Deut 19:6 (“by the mouth of two or three witnesses”, the verb ‰Ú„ having both the sense of ‘to testify’ and ‘to warn’. This is likewise in accord with the Qumran rule in CD 9,16-20 :
“ Any trespass committed by a man against the Torah, which is witnessed by his neighbor - he being but one - if it is a capital matter, he shall report it before his eyes with reproof to the Examiner. And the Examiner shall write it down with his hand until he does it again before one who again reports it to the Examiner. If he is again caught in the presence of one, his judgment is complete.”
Most of the scholarly discussion of this requirement of three witnesses has concerned the problem of how to reconcile it with the biblical rule, confirmed in the Temple Scroll , that two witnesses to a single crime suffice to establish a capital indictment. I am inclined to believe that the Qumran legists would have concurred that two simultaneous witnesses were sufficient with regard to capital crimes, such as murder, adultery, and treason, involving other persons. Our passage, however, deals with religious sins ‡_¯†ÈÓÚφ‡È_†••Â¯‰ “that a man desecrates the Torah”; here, three repeated violations were required by Qumran exegetes for a capital indictment. The nominal basis for this leniency was Deut 19:15 :ÚφÙȆ__ȆڄÈ̆‡Â†ÚφÙȆ_Ï_‰†Ú„È̆ȘÂ̆„•¯, where ‘two’ and ‘three’ were taken to refer, not to the number of witnesses seeing one offense, but to the number of times the offense was repeated. This tendentious interpretation hardly fits the literal sense of the passage, but, in my view, reflects a desire to minimize the scope of capital punishment. In support of the foregoing thesis I have called attention to a fragmentary , but very interesting Qumran text which explicates the avoidance of the death penalty as a juridical principle.

4Q275 contains a fragment which requires the participants in the annual renewal of the covenant, i.e. the ¯•ÈÌ, to be admonished before the†¸ÈÂ_̆‰Ó_ÙË, in the [seventh] week (‰•Èү†ڄ†‰_•ÂÚ†¸‰_•ÈÚÈ_. On this ¸ÈÂ_̆‰Ó_ÙË after the counting of seven weeks, the fate of transgressors within the community was to be decided at a general assembly of the ¯•ÈÌ . The latter were warned to be mindful of the qualities of thruthfulness and objectivity required of those who sit in judgment They should aspire to be ¸‡___Ȇ‡Ó•†Â_Â_‡È†•_Ú ‘truthful [men] who hate bribes’. Moreover, they must be conscious of the value of human life. Lest they incline toward excessive harshness in punishment, they were made to “solemnly vow not to put any man to death” , ¸Â__„¯Â†Ï‡†Ï‰ÓÈ•†‡È_.

This is a remarkable vow. As it stands it appears to be an unqualified rejection of any death penalty regardless of the guilt of the accused. True, the extant text breaks off after ‡È_ and it may conceivably have been followed by some modifier, such as _˜È or _„Ș, which are found in Exodus 23:7 : “An innocent and righteous man thou shalt not kill.” Whether or not this restoration is correct, we have in 4Q275 a noteworthy affirmation of the judicial principle of presumed innocence and an emphatic limitation of capital punishment.

C. Solar-lunar Calendar Reckoning at Qumran

Since the publication of the first Qumran scrolls more than half a century ago, the schematic 364 day solar year of Jubilees has been posited as a major issue in the schism of the Qumran community from mainstream Judaism. This is best illustrated by the Yom Kippur confrontation with the Wicked Priest who came to suppress the sect’s observance of the fast on a date in conflict with the prevalent lunar calendar. The thesis of S. Talmon, a pioneer in the study of the Qumran calendar, is that the sect, like the author of Jubilees, viewed the observation of the moon as leading to corruption of the ideal 364 day calendar in which the holidays and all dates were perpetually fixed to particular days of the week. Whether and how the sect made correction for the annual deficit of one and one quarter days is not known, but it is presumed by Talmon they had only disdain for the arbitrary methods of lunar intercalation.

With the publication of Qumran calendrical texts now nearing completion it is natural to ask how this thesis holds up in the light of new Cave 4 fragments. Fortunately we now have Talmon’s publication of calendrical texts from Cave 4 as volume XXI in the Discoveries in the Judaean Desert (DJD) series. In his general introduction Talmon restates his premise that the Qumran calendar shared the anti-lunar polemic of the book of Jubilees. The Damascus Document, one of the foundational works of the community, does indeed make reference to the chronological system of the Book of Jubilees, and as Talmon demonstrated long ago, the mishmarot lists of annual festivals on fixed days of the week presuppose the schematic 364 day solar calendar. However, as illustrated by the early astronomical portion of the Book of Enoch, not all proponents of the 364 day year were oblivious to the need for synchronization with the lunar calendar. In fact, in this volume, Talmon, himself, publishes 4Q320, which, as he puts it “is intended to achieve a concordance of the divergent 354-day lunar year with this ‘ideal’ ephemeris” (p.33). 4Q321 designates two days in each solar month, one around the middle of the lunar month with the obscure designation „˜‰, and the other not named (Talmon designates it X) around the end of the month. The nature of these two days is still the subject of much conjecture among scholars. M. Wise deduces from another Qumran text that duqah refers to the full moon, while the X day was probably the day of its last visibility. Talmon and I. Knohl have suggested that duqah was the night after the full moon when it begins to wane, while X was the last day of the lunar month. In their opinion the purpose of recording these days inclining toward lunar darkness was to warn the members of the sect about the sinister influence of the moon.

This ‘baleful’ lunar hypothesis contrasts sharply with 4Q503, a Qumran liturgical text which sets forth prayers to be recited daily in accordance with the varying portions of light and darkness in the moon, a method of measuring lunation also described in Enoch. As I had occasion to point out, 4Q503 shows that lunar calculation was used for liturgical purposes at Qumran, despite the anti-lunar polemics of Jubilees. In his learned but non-committal evaluation of the evidence, U. Glessmer maintained that the moon and “lots of darkness” occur only in passages reconstructed by the editor. This is not quite accurate, as one can verify by looking at the phrase ‚¯Ï•†ÁÂ_Í visible on plate XLI frg. 39 of M. Baillet’s edition. Furthermore, in 4Q503, as well as elsewhere in the sectarian literature, the day begins with the evening as in the traditional lunar-solar Jewish calendar.

Thus, with regard to 4Q321, it seems more plausible to suppose that the two days designated each month were intended for synchronization with the lunar calendar rather than as a warning against it. This option appears to be recognized by Talmon as at least a possibility once a comprehensive study of the entire Qumran calendrical corpus is completed.

It is clear that much work on the use of the solar and lunar calendars at Qumran remains to be done. At present the evidence points to the continuation of the efforts already found in Enoch for synchronizing the schematic 364 day calendar with the schematic reckoning of light and darkness in the lunar cycle. What sets these solar-lunar calculations apart from the rabbinic calendar, is that the latter delegates authority to the discretion of the court to declare new moons and leap years, while the sect believed in fixed times ordained in the heavenly tablets. This view of the calendar is intrinsically harmonious with the deterministic character of Qumran-Essene theology.


This paper explores substantive links between Qumran and early rabbinic halakha in three areas : purity, capital penalties, and the calendar. We have elsewhere identified a considerable number of other congruities in the elaboration of halakha beyond what is implicit in pentateuchal law. Two of the subjects treated here, purity and the calendar, are known to have involved particular controversies between Qumran and Pharisaic teachings. For this very reason it is important to delineate agreements which may hypothetically reflect common Jewish traditions of the Second Temple period.

We prefaced this presentation with a list of recent findings which tend to strengthen the premise identifying the Qumran community with the Essenes. It is worth noting in this connection that the two ancient authors, to whom we owe most of our external knowledge of the Essenes, both depict them in a decidedly favorable fashion. Philo, a leading spokesman for Alexandrian Jewry, named the Essenes ‘athletes of virtue’, without any critique of their unique life-style. We don’t know how much Philo knew about the differences between the Jewish groupings in Eretz Israel in his time. Wolfson has argued persuasively that Philo was not unaware of the Pharisaic concept about the authority of the ‘unwritten law’, although this term originated in Greek sources as a designation for the law of nature. In any case, the Qumran-Essenes appear to have ascribed authority to written sources only, but this did not prevent Philo from praising them lavishly. Josephus likewise admired the Essenes greatly as ‘men of the highest character’ (Ant 18,19) although he, himself, accepted the rules of the Pharisees when he was nineteen years old (Life 12).

The polemics against the ‘interpreters of smooth things’ in the Scrolls reflect some of the Qumran conflicts with the Pharisees. The Yom Kippur confrontation apparently resulted from the effort of Temple authorities to suppress the dissident sectarian calendar. Yet, this should not lead us to suppose that these disputants had nothing in common. It is a well known historical phenomenon that the intensity of conflict between religious groups is proportional to the proximity of their ideologies. This paper tries to identify a core of substantive agreement in three areas of religious practice.