Tuesday, January 8, 2013

Transmitting Mishnah: The Shaping Influence of Oral Tradition


That's the title of a book by Elizabeth Alexander that I just finished reading.  I'm going to summarize the whole book for you in a short paragraph and then, if you're interested in this esoteric subject, you can read the excerpts from her book.

This book deals with the question "what is the purpose of the Mishnah:  is it intended as a legal code or as a means of training minds to think in terms of legal analysis?"  The author believes that it does both.  See how easy that was?  The Mishnah is essentially law school for Sages PLUS a legal code.

Now if you want to learn more about Rabbinic legal analysis theory and the nature of the Mishnah then read on (but I won't be disappointed if you stop here).

I've tried to select excerpts of all her main points and then I excerpted the final, concluding paragraph:

pg. 121 "Seeing the significance of mishnaic formulation as the conveyances of legal norms, a good many scholars have argued that the primary purpose of the Mishnah was to serve as a law code.  [footnote 13]"

Footnote 13:  "A long-standing debate in mishnaic studies concerns whether or not the Mishnah was intended to function as a law code or pedagogical handbook.  See n. I in the Introduction."

Introduction note 1:  "The issue of whether the Mishnah was intended to function as a law code or academic handbook for young rabbinic scholars has long been contested among academic scholar of rabbinics.  Arguing on behalf of the Mishnah as law code are:  Zacharias Frankel, Methods of the Mishnah (Hebrew) (Tel Aviv:  Sinai, 1959 [repr.]), 224-227;  J. N. Epstein, Introduction to Tannaitic Literature:  Mishnah, Tosephta, and Halakhic Midrashim (Hebrew), ed. E. Z. Melamed (Jerusalem:  Magnes Press, 1957), 225-26;  Alexander Guttman, Rabbinic Judaism in the Making (Detroit:  Wayne State University Press, 1970), 240-44; and Menachem Elon, Jewish Law: History, Sources, Principles (Ha-Mishpat Ha-Ivri), vol. 3, trans. Bernard Auerback and Melvin J. Sykes (Philadelphia:  Jewish Publication Soceity, 1994, 1057-78.
Arguing in favor of Mishnah as pedagogical handbook are Abraham Goldberg, 'The Mishnah--A Study Book of Halakha,' in The Literature of the Sages, ed. Shmuel Safrai (Philadelphia:  Fortress Press, 1987), 211-51; and Robert Goldenberg, 'The Talmud,' in Back to the Sources:  Reading the Classic Jewish Texts, ed. Barry Holtz (New York:  Simon and Schuster, 1984), 133-34.
An intermediate view of the Mishnah as a compiled collection of opinions can be found in Chanoch Albeck, Introduction to the Mishmah (Hebrew) (Jerusalem, Tel Aviv:  Dvir, 1959), 105-7."

pg. 124  "The defining feature of casuistic legal materials is, of course, the presence of what is usually translated as the 'if...then...' formula.  The first clause, the 'if...' clause or protasis, states the facts or circumstances of a particular case.  The second clause, the 'then...' clause or apodosis, provides a legal resolution."

p.g 127  "In sum, while it is certainly true that the casuistic form communicates a set of legal norms, it is equally true that the form does much more than that.  It engages both those who construct or compose it and those who review it in certain kinds of analytic activities.  One is led to 1) abstract general principles from particular cases, 2) compare similar cases in a series, 3) consider how diverse legal principles interact in the improbable case, and 4) evaluate the concerns of competing legal considerations in the borderline case."

pg. 171 "...the conclusions reached here do not preclude the possibility that the materials also served as an authoritative source of normative law.  As mentioned earlier, scholars often have been split into two opposing camps, with some arguing that the Mishnah functioned as a law code (i.e., as an official source of normative law) and others arguing that the Mishnah functioned in a more pedagogical capacity.  The two positions are generally seen as mutually exclusive...however...I would argue that the approach taken here...does not necessarily contradict the view that the Mishnah conveys the authoritative norms of the legal system.  As a law student at the University of Virginia pointed out to me at the conclusion of his first year, which traditionally exposes students to many of the fundamental principles of the American legal system through a series of classic 'borderline' cases:  'in order to learn to apply the principles you need to know what the principles are.  The very same cases that teach you to think 'like a lawyer' also teach you the substance of the law.'  Our textual analysis of m. Shevuot bears out the same impression that the cases that teach students to apply the law also convey important information about the standards and norms of the legal system."

pg. 219 Conclusion, "Rabbinic practices of transmission, then, provided not only for the conveyance of textual materials, but equally as important, for the cultivation of particular intellectual habits.  As much as anything else, the prevalence of these intellectual habits impacted how the text of m. Shevuot was received, understood, and interpreted by the talmudic sages."

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