tabick halivni rabbinic literature (sem5004)

History and Genres of Rabbinic Literature Jeremy Tabick

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History and Genres of Rabbinic Literature:

An analysis of David Weiss Halivni’s work

By Jeremy Tabick

David Weiss Halivni is a giant in modern scholarship of the Babylonian Talmud. He is a

precise and formidable reader of texts, able to spot extremely important minute details. And he is

prolific, having written the multi-volume and incomplete commentary on the Talmud, Mekorot u-

Mesorot (Sources and Traditions, hereafter MM). This assessment of his work and theories of

Rabbinic literature focusses on two of his works published in English: Midrash, Mishnah and

Gemara: The Jewish Predilection for Justified Law (hereafter MMG)1 and Jeffrey Rubenstein’s

translation of Halivni’s introduction to MM: Bava Batra, published as The Formation of the

Babylonian Talmud (hereafter FBT).2 Between these two works, he spans the entire history of the

Rabbinic period, and even discusses the influence of the Stammaim on later medieval

commentators, which will not be dealt with in this analysis. He makes detailed observations with

a plethora of examples on the Tannaitic midrashim (such as Mekhilta and Sifra), the Mishnah of

Rabbi (Yehudah HaNasi), and the Babylonian Talmud. These observations are mostly with the

goal of making historical claims, which he does with mixed success. However, along the way, he

demonstrates his mastery of Rabbinic literature in a way that is far more applicable than the

historical claims themselves.

This analysis is divided mostly by time period. It begins with assessing Halivni’s claims

about the Tannaim and those that preceded them (mainly from MMG) on the Mishnah, midrashei

halakhah and their relation to each other and to the Tanakh. The second section moves onto the


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Amoraim and the nature of amoraic transmission of material. Finally, it discusses the transition

into the stammaitic period, how Halivni’s thinking about this has changed between MMG and

FBT, and what the Stammaim were trying to accomplish. In conclusion, it poses some overall

criticism of Halivni’s historical methodology, taking the lead from much of Richard Kalmin’s

critiques in his Conservative Judaism article.3 What we are left with is a remarkable mind who

continues to lead the way in the interpretation of Rabbinic texts, and who believes in the Jewish

obsession with justifying our laws.

Tannaim

Halivni deals extensively with the genres of mishnah and midrash in MMG,4 and also

discusses the editing process of the Mishnah in FBT in contrast to that of the Bavli.5 His analysis

of the relationship between these two tannaitic genres and the Tanakh will be discussed in this

section. The role and style of the anonymous layer in these tannaitic works will also be compared

to Halivni’s observations about the setam ha-Talmud.

Relation to Scripture

Core to Halivni’s ideology is the Jewish people’s predilection for justified law, by which

he means law codes that come with reasons attached.6 This, he claims, originates in the Bible

itself. He makes a key observation, borne out by many scholars of the ancient Near East, that the

Bible is outstanding in its decision to include justifications for many (though by no means all,

nor perhaps even most) of its laws.7 According to MMG, it was understood in the ancient Near

East that people needed laws in order to prevent the world descending into chaos. Thus the laws


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could be arbitrary and would nonetheless fulfil their essential purpose: to bring order to society.

Their justification is implicit. They should be followed because they were given by the gods or

the monarchy, and to prevent anarchy.8 Of the ancient Near Eastern law codes we have, only the

Bible includes a wealth of explicit justifications, particularly favoured by the book of

Deuteronomy.9

This is indicative, he argues, of a Jewish predisposition for laws to have reasons. For

example, the firstborn males of people and animals among the Israelites belong to God because

God slew the firstborn of the Egyptians (Exodus 13:11-15). The Torah did not have to provide

this reason: the fact that God commands it could have been reason enough. But the Torah goes

out of its way to show that God’s law can be, and should be, justified. Some of these

justifications are symbolic like the law of the firstborn; others are logical, such as Deuteronomy’s

vision of shabbat for which the point is for your servants to rest just like you (Deuteronomy

5:14).

In his view, coming from such a unique tradition of motive clauses, midrash is a natural

extension. Tannaitic midrash, like the Mekhilta’ot and the Sifra, is full of expressions like

“talmud lomar” which introduce verses from Scripture to explain a particular law. Again, like

other law codes, it could have claimed that this law was divine and had to be followed blindly,

regardless of any justifications. But midrash consciously chose the opposite path: to include

logical arguments and Scriptural supports. According to Halivni, this a predictable outgrowth of

the tradition of biblical law. He takes this midrashic tradition to refer also to the pre- or proto-

rabbinic period.10

He also highlights a key way the mishnaic form deviates from the midrashic: in its


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fidelity to the order of Scripture.11 While the books of midrash are hooked on a consecutive

reading of biblical books, the Mishnah was organised more or less by topic, totally free of the

Bible’s order. He argues this is a huge break with what came before, and uses Josephus12 and a

fast mentioned in Megillat Ta’anit13 as his support of other Jews being very wary of this sort of

development. He thus understands that sticking to the biblical order is the older, more

conservative approach, and deduces from this and other evidence (to be explored in the next

section) that midrash predates mishnah.

It is a very detailed and thoughtful analysis. However, Kalmin points out the holes in the

argument and the ambiguities in Halivni’s readings of the sources in question. Pertinently, he

points out that Halivni equates “Jews” with “Rabbis” in this analysis,14 whereas in actuality the

rabbinic movement was a small minority at the time of the Mishnah, and certainly before. Thus it

could be that Jews as a whole were against deviating from the order of Scripture while the rabbis

and their predecessors had been doing so for centuries in works that looked like the Mishnah.

The point thus remains inconclusive.

Relation of Midrash and Mishnah

As part of his proofs that midrash antedates Mishnah as a genre, Halivni points out that

the language of the Mishnah is often extremely similar if not identical with the the language of

midreshei halakhah, just without many of the Scriptural proofs. He argues that the Mishnah

extensively quotes from earlier material, often with so much fidelity that the precise wording of

the source is not totally fitting to its new context. He argues that this shows that the midrash is

earlier, that the Mishnah knows those works, and selects its quotations from it accordingly.15 It is,


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of course, possible to argue the other way, that in fact the works of midrash quoted the Mishnah

and attached it to Scriptural verses, using the same wording and making it fit better in a new

context. This seems the less likely alternative since the Mishnah was extensively edited and often

reformulated,16 so there does not seem any good reason for the editors to compose awkward

language other than a desire to be loyal to an earlier formulation. Nonetheless, the possibility

remains.

He brings examples to illustrate his claim, such as the use of the phrase har ha-bayit in a

tannaitic text with a Scriptural support.17 Since the term har ha-bayit changed in meaning after

Herod’s expansion of the Temple, he argues that this midrash can then be conclusively dated to

before Herod. The fundamental weakness of this argument is pointed out by Kalmin: while the

apodictic law here uses the term with its pre-Herod meaning, it could still be that the Scriptural

support was added later.18 Thus this observation, while precise and interesting itself, does not

necessarily prove the age of the midrashic form.

This point is central to MMG, that the Mishnah is a “flash in the pan” of Jewish law—a

sudden and brief change to apodictic law from a tradition that had always been interested in the

reasons behind them, and that continued to be so afterwards. He comes to this from an

assumption that the Mishnah represented a popular or well-known work or genre, that “Rabbis”

represent “Jews” of this period, as referred to above.19 Thus it could be a minority work, while

most Jews continued to teach laws with justifications.

Furthermore, even among rabbis it took many years for the Mishnah to gain traction as

the fundamental and most authoritative guide to Jewish law. (For example, the Yerushalmi often

uses the term matnita interchangeably to refer to a baraita or a mishnah, while the Bavli


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distinguishes carefully between matnita—a baraita—and matnitin—“Our Mishnah”. This

suggests that during the time of the Yerushalmi, it was not true that the Mishnah was the only

definitive law code, but by the time of the Bavli it was.)20 Perhaps the Mishnah was controversial

even among rabbis, many of whom taught midrash instead.21

These two observations, when taken together, would strengthen his fundamental point

while (a) undermining the specifics of his arguments, which rest on the assumption that the

Mishnah was an extremely important work as soon as it was composed; and (b) sidelining the

need to be so careful about the chronological relationship between mishnaic and midrashic form,

for perhaps midrash represented a more popular approach and the Mishnah a more sectarian or

expert approach. In this way, more recent scholarship may bolster his claim for the Jewish

predilection for justified law while detracting from the specifics of his historical claims.

Anonymity in tannaitic sources

So while midrash was a very old form going back even to pre-rabbinic times, Halivni

argues that mishnah came out of a very specific historical circumstance and fitted an important

need. It was the school of Rabbi Akiva and his students down to Rabbi who innovated this new

format, a work that was not tied to Scripture or justifications of any sort, but was designed to be

easily remembered and comprehensive.22 Midrash, he argues, was becoming too expansive and

too difficult to remember, especially in the post-Bar Kokhba hardship of 2nd-3rd century Eretz

Yisrael. To respond to this circumstance, Rabbi and his academy worked to produce the

Mishnah.

Like in midrash, the anonymous setam layer means one thing: authority. Halivni sets up a


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hierarchy of different setamim, each with less authority than the one before: (i) setam with no

dissenting voice; (ii) setam with dissenting voice(s); and (iii) setam with a majority opinion

(ḥakhamim) in dissent.23 This is essentially universally accepted by traditional readers of the

Mishnah, and indeed has its roots in the Talmud. He contrasts this with the setam in the

Babylonian Talmud whose goal is totally different: it does not indicate something universally

agreed upon, but the argumentation. This is an illustrative and helpful example of the vast

difference in genre between Mishnah and that of the Bavli, for tannaitic midrash does also

include anonymous dialectic, like the Gemara. This is what he argues is the legacy of the

Stammaim: the revival of the earlier, pre-mishnaic, tannaitic use of the setam and the centrality

of the argumentation.24

There is certainly much to his claim, but there are also important differences between

midrashic and talmudic form that bear noting. For example, midrash often uses the setam layer

to simply state the law like the Mishnah. Also, central to the style of the setam ha-Talmud is the

use of forced explanations in order to continue the dialectic, what could be called a love of

dialectic itself; midrash, however, gives the impression that the dialectic is serving the purpose

of getting at the truth and is not an end in itself.25 Thus it cannot be that the Gemara represents a

perfect revival of an earlier attitude, there has still been some historical development. This

addendum, it seems, is not something that Halivni would disagree with: he does not claim that

talmudic and midrashic form are the same, but that they are similar.

Amoraim

This section discusses the roots of the Babylonian Talmud in the transmission of amoraic


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apodictic statements, and addresses his correction of a common misconception that led many

people to believe that the Bavli was completed by the end of the amoraic period.

Rav Ashi and Ravina: end of "hora'ah"

Halivni’s key claim and most important contribution to modern scholarship of the

Babylonian Talmud is that the Gemara was not edited by the Amoraim but by a significantly later

group he calls Stammaim, because their contribution is “setam” or anonymous. He proves this

extensively in FBT as well as in every volume of his MM.26 It is by far the safest, clearest, and

most universally accepted of all his historical claims, now a departure point for the study of

Talmud in the academy, and increasing numbers of yeshivot and other traditional Jewish learning

environments. In fact, it is an obvious claim and the natural conclusion one would come to from

simply reading the Talmud, unshackled by medieval assumptions. After all, the Gemara often

quotes Rav Ashi and Ravina, credited in the traditional version with the main bulk of editing, and

rules against them—or has trouble understanding them—in the same way they deal with any

other Amora. In contrast, Rabbi is rarely mentioned by name in the Mishnah, and though the

ḥakhamim do indeed sometimes disagree with him, his very designation of “Rabbi” suggests his

high status and importance in the process; there is no analogue to him in the Talmud.

Further, Halivni brings compelling evidence that the Gemara was never holistically

edited by anyone.27 In contrast to the Mishnah which has more or less uniform style and

consistent terminology, sugyot across the Bavli have different literally styles and often vastly

different conclusions and understandings of earlier sources; this is true of the unusual tractates

(like Nedarim) in particular. It seems that even the Bavli’s consistent terminology is more due to


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later editors applying it than any author or editor of the work itself (e.g. Mesoret HaShas’ attempt

to make sure d’tanya and ditnan apply consistently to a baraita and a mishnah respectively, and

Halivni’s claim that the terminology was decided by the Savoraim)28.

The Geonim, not even Rav Sherira Gaon, never claim that Ravina and Rav Ashi edited

the Gemara; this claim appears prominently in Tosafot.29 The only text that would lead anyone to

this conclusion is a puzzling statement in Babylonian Talmud Bava Metzia 86a that compares

Rabbi and Rabbi Natan, with Rav Ashi and Ravina: “Rabbi and Rabbi Natan—the end of

Mishnah (sof mishnah); Rav Ashi and Ravina—the end of instruction (sof hora’ah).” It is not

clear what hora’ah means here, but by analogy with mishnah and using the fact that Rav Ashi

and Ravina are two of the latest authorities mentioned in the Gemara (but by no means the

latest), Tosafot and others concluded that this meant that those two were the editors of the

Gemara. However, Halivni points out that it is impossible that hora’ah could have meant that.30

If it was supposed to be analogised to the Mishnah, then would it not have used a clearer word

like “Gemara”? Further, granted that Rabbi was the editor of the Mishnah, but where does Rabbi

Natan fit here?

Thus Halivni concludes that this statement should be understood in one of two ways:

i. Adoration of students for their masters. The author of this statement wanted to highlight

how great were Rabbi, Rabbi Natan, Ravina and Rav Ashi as scholars and teachers and

was lamenting for their loss, that Mishnah and hora’ah were never the same in their

absence.31

ii. That hora’ah means recorded, official, apodictic, named rulings, such as in the form that

is preserved by us as itmar. Thus the end of hora’ah means something similar to the end


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of mishnah: that a particular genre of transmission ended and another began. In the case

of mishnah, it was a literary corpus and legal code that was understood to be closed. In

the case of hora’ah, it was the official transmission of the Reciters (tannaim) of amoraic

dicta, that after Rav Ashi and Ravina, the rabbis no longer passed down specific

formulations of their words to Reciters to be preserved, but were preserved in other ways.

This would help explain why later Amoraim have more dialectics attached to their words

and more often speak in Aramaic, while Rav Ashi is still often recorded with short, clear

statements and in Hebrew.32

There is a lot of strength to reading (ii), and it certainly provides a fascinating insight into

transitioning from the amoraic to stammaitic age. However, it is also a fairly speculative

translation; reading (i) is certainly safer. Indeed these two readings may not be contradictory:

hora’ah could both mean something specific and technical while the whole statement indeed

remains a statement of lament on the loss of great sages.

Transmission of apodictic and dialectic material

Following his understanding of hora’ah that Ravina and Rav Ashi mark the end of,

Halivni makes several bold claims about the way amoraic material was preserved through the

generations and which types were preserved better than others.33 First, that the early Amoraim

restricted themselves to clear apodictic statements in Hebrew, very much in mishnaic style (he

attributes this to Rav, being a member of Rabbi’s inner circle).34 Over the period of the Amoraim,

more rulings were Aramaic and more dialectic crept in, though the Stammaim may have been

responsible for a lot of it. This overall trend seems very clear from the record in the Gemara,


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obviously with exceptions. However, the specifics of this are very difficult to discern given that

it can be impossible to tease apart the original amoraic statement from its glosses by later editors.

Second, the Reciters were responsible for formulating these dicta in memorable forms,

like itmar.35 They would collect amoraic dicta and organise them around mishnayot and similar

topics. Again this claim seems uncontroversial, and Halivni brings evidence from the Bavli itself

regarding the actions and roles of these Reciters. Some caution is still advised given how little

they are mentioned and in how little detail their role is described.

Third, in general the dialectic was not deemed worthy of transmission by Amoraim, only

the final answer.36 It was up to the Stammaim, who thought that dialectic was worthy of

preservation in and of itself (like the midreshei halakhah before them), to reconstruct what the

Amoraim were thinking when they made their rulings.37 Sometimes they succeeded and

sometimes they did not. It was the time between the authors of these dicta and their transmitters

that resulted in the creation of the many forced explanations (d’ḥukim) that define the character

of the Gemara we study today. This is a central part of his theory to explain the presence of the

forced interpretations of the Bavli.38

Fourth, dialectics of the Amoraim were sometimes remembered by their students. These

were not official channels of transmission, but what Halivni terms “survivals”.39 By

happenstance these reasons and arguments of Amoraim were remembered. They can be

identified by finding an amoraic statement that does indeed seem to be responding to part of the

anonymous layer, of which there are many examples. Given that Halivni holds that all of these

anonymous statements were added by the Stammaim, the fact that some of them are clearly

known by Amoraim requires explanation. His theory of “survivals” is that explanation.


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It seems to me, however, that the existence of “survivals” is not the only possible solution

to his problem. One could easily posit that indeed some (limited) anonymous material of the

Bavli was composed and transmitted by Amoraim along with their statements, such as a question

on a Mishnah that is then directly answered by an Amora. This would seem to be borne out by

understanding the Yerushalmi as similar to the Bavli in an earlier stage of its development; this

would show that many anonymous passages were composed before the advent of the Stammaim.

Why suggest a new, unofficial, and random method of transmission when the official, carefully

edited method of transmission could also explain this phenomenon? It may be that some

anonymous material was not “reconstructed” by Stammaim but simply remembered by them

through official channels.

Stammaim and Savoraim

The Stammaitic period are where Halivni’s claims are most suspect. MMG is obviously

out-of-date, being written in 1986; but FBT is not much more up-to-date given there have been

recent huge advances in the study of Sassanian Persia, Geonica and early Islam, all of which

have the potential to question, enrich, or debunk many of his claims. Instead, he relies entirely on

evidence interior to the Talmud Bavli and the methods employed by various Stammaim. This

will be discussed in more detail in the conclusion.

Halivni’s thinking on the dating and nature of the Stammaim has changed dramatically in

between MMG and FBT. He has gone from thinking that the Stammaim were one generation of

scholars shortly after the the close of the amoraic period, to two-hundred and fifty years—

spanning even into the early geonic period—with many generations of schools of scholars.40 He


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describes different kinds of these scholars based on their literary activity. The intentions and

work of the Stammaim begin this section, followed by a discussion of the different subsets of

Stammaim he posits: Savoraim, Transposers and Compilers.

Reconstructing the dialectic

The stammaitic period begins, according to FTB, when two factors combined:

i. The growth of an attitude valuing the dialectic equally if not more than the polished,

bottom line;41

ii. A sense of difference between them and their antecedents, that earlier sages were worthy

of having their statements attributed by name while the Stammaim thought of themselves

that they were not.42

(Note the contrast with setam Mishnah—there, according to Halivni, anonymous means

maximal authority; here he claims it means minimal authority.) With their new priorities, they

were presented with the challenge of having swathes of amoraic material without justifications

and wanting to provide as much of this justification as was possible. Thus, in Halivni’s scheme,

the Stammaim return to the midrashic tradition of including dialectic, of placing the justifications

for laws front and centre. The departure of the Mishnah was finally over and the predilection of

Jews for justified law won out.43

This description of the Stammaim’s activities and goals rests on the assumption that they

were trying to accurately reconstruct the unknown dialectics of the past. Halivni in the first place

only posited these editors that postdate the Amoraim because they explain why the Gemara

insists on posing forced explanations of amoraic and tannaitic sources—the only reason that they


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are forced is because of the increased gap between them and the unknown past that they are

trying to perfectly reconstruct. However, editorial intent is notoriously difficult to discern, know

or prove.

For example, it is also possible to argue that the Stammaim sometimes knew the true

meaning of an amoraic or tannaitic source but nonetheless posed a forced explanation for their

own purposes—pedagogical, literary, or polemical. A good example of this phenomenon can be

found in Baba Kama 83b-84a, which could be displaying forced explanations for all three of

these reasons. The Torah is very clear of the punishment for laws of injuries: that what they did

to their fellow should be inflicted upon them by the court. The tannaitic and amoraic sages,

however, were emphatic in their opposition to this and instead insist in this daf that the

punishment for injuries is monetary compensation. The Gemara embarks on different

explanations for all eight of these texts brought here, each one being rejected before moving onto

the next text. As the Rishonim point out,44 many of the later explanations are no better or worse

than the earlier explanations—so why were they rejected? The answer seems to be for pedagogic

and/or literary purposes: to give the students different ways to justify their law of monetary

compensation, and to compose it in such a way where one text flows into the next in the

argument’s flow, to expedite memorisation.

The final text that the Gemara brings shows Rabbi Eliezer stating the peshat of the Torah:

“ayin taḥat ayin—mamash”—we literally take people’s eyes out. His opinion is extremely clear,

with actually no room for misunderstanding. But nonetheless the Gemara refuses to understand

his plain words and instead interprets it forcibly. Mere historical distance does not seem enough

to explain this huge misunderstanding of Rabbi Eliezer’s words! Anyone who has read the Torah


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can completely understand what Rabbi Eliezer is saying. The only reason that does not make a

mockery of the Stammaim is that they knew what Rabbi Eliezer meant but refused to understand

him that way because they disagreed with him. It was not a faulty reconstruction, it was a

conscious polemical choice. The Stammaim were not aiming for accuracy in this forced

explanation, but actually morality.

Thus, Halivni’s understanding of the Stammaim’s intentions requires further explanation.

Savoraim

The roots of the Savoraim comes from the Iggeret Rav Sherira Gaon, who credits them,

after the end of hora’ah, of explanations and opinions “approximating to hora’ah…; and

whatever had been left hanging, (these) rabbis made explicit… And they—and also succeeding

rabbis, such as Rav Ena and Rav Simuna—incorporated several (of their) opinions in the

Gemara.”45 Halivni picks up on this early historical claim and assigns roles to the Savoraim

towards the end of the stammaitic period. They were working at a time when it was no longer

possible to add to the dialectic of the Talmud. Their main contribution was to add brief

explanations and editorial comments.46 There are also various sugyot, often at the beginning of

massekhtot or chapters, which have been attributed to the Savoraim because they contain no

material local to that section, but rather only borrow from elsewhere; they are also often

predicated on knowing the outlines of the proceeding chapter, thought to be designed as

introductions to the section to be read aloud in the academy when beginning a new learning

session.47 Thus, according to Halivni, the Savoraim are a subset of Stammaim living towards the

end of the period, perhaps even members of the geonic academies.


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Once it is required to concede that the Stammaim were not a single generation and had to

have worked over a long period of time, it seems to me absurd to maintain this sharp distinction

between Savoraim and Stammaim based on the evidence of Rav Sherira Gaon alone. Is it likely

that Rav Sherira would specifically mention a group with a very specific and limited impact on

the Bavli while totally ignoring the group that put it all together?48 It seems better to say that Rav

Sherira was referring to what Halivni calls the “Stammaim”, and thus perhaps the Savoraim are

identical to the Stammaim. Halivni responds49 by saying some of those named by Rav Sherira as

being Savoraim are mentioned in the Talmud and therefore cannot be Stammaim, because they

are not anonymous. But why is it such a stretch to think that some Stammaim/Savoraim were not

always anonymous? It is less of a stretch to imagine that the Savoraim that Rav Sherira places

immediately after the amoraic period are actually those who live two hundred years later at the

end of the stammaitic period? Halivni’s connection to the name “Savoraim” and placing them in

the historical count based only on Rav Sherira is not clear and this matter requires further

investigation.

Transposers and Compilers

In addition to the sub-group of Savoraim, Halivni also discerns different kinds of

Stammaim in different periods based on their differing editing methods.50 His observations of

these methods are very valuable and key to understanding the literary activity of the Stammaim.

The precise dating that he assigns them, however, could be suspect.

He identifies two main methods of editing: “transposing” and “compiling”, and he calls

those who did this editing “Transposers” and “Compilers” respectively. Transposers took sources


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from elsewhere in the Talmud—sometimes long, sometimes short—that they thought would add

to the sugya in this new context, and then often constructed dialectic around it to fit it in.51 These,

he argues, worked throughout the stammaitic period. Compilers, however, were involved in

stitching distinct sugyot together, and were not interested in or not able to add to the dialectic

directly; thus, in his scheme, the Compilers operated only towards the end of the stammaitic

period.52

He comes to this analysis from the assumption that the Talmud was getting more

crystallised over time, and it became less possible to add new statements and arguments to it.

Eventually, by the Savoraim, it was only possible to add brief explanations. Therefore, he sees

any editorial hand which merely adds in a source from elsewhere without comment as later in the

stammaitic period, and additions to the dialectic itself as earlier. It is important to note that this

approach is not necessarily right: while it does fit with the Talmud’s characteristic impulse to

respect and preserve the past, it could be that different Stammaim throughout the stammaitic

period thought differently about how to properly preserve something (analogous perhaps to a key

difference between medieval Ashkenazi and Sephardi scribes, the former who were much more

willing to add their own comments into the text than the latter).53 Further, he provides no

compelling reason why it should be the case that the Compilers and Transposers could not add to

the dialectic after a certain time. With further treatment of this question, his claims of the activity

of Stammaim could be assessed more clearly.

This identification of different kinds of editing in the Talmud could be extremely

instructive in understanding the editing process of this work, regardless of any of the historical

claims. Knowing that Stammaim transposed sugyot and integrated it into the argument, for


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example, or compiled sugyot without any comment or attempt to resolve the contradictions, is

very helpful in reading the Talmud Bavli and seeing how the sugya was formed. This

contribution to Talmud scholarship should not be minimised. The historical elements that he

adds, however, must be treated with caution.

Conclusion

Two main criticism remain of Halivni’s treatment of the Babylonian Talmud in particular:

how the orality of the texts affects their transmission and our understanding of it; and how a

synchronic treatment would greatly enrich his historical claims. In general, his arguments on the

relationship between midrash, mishnah, and Tanakh are much more convincing, if far from

water-tight.

Effect of orality

Halivni maintains that the dialectics was not preserved in the amoraic period, except in

the haphazard form of “survivals”, while it was preserved exactly, in the same way as halakhot in

earlier times, in the stammaitic period. He seems to suggest that Stammaim preserved the

wording of the dialectics exactly because it too was Torah, whereas Amoraim were not

concerned with it.54

However, more recent scholarship has shown that the specific wording of the dialectics

wasn’t preserved throughout the Geonic period. What was known in any given sugya was the

various tannaitic and amoraic statements and the essential flow of the argument. Current theories

who that the text of the Talmud was fixed even though the precise wording of the anonymous


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dialectics was not.55 The specific wording was subject to change from one academy to another,

one teacher to another, or even from one lesson of the same teacher to another. This was because

it was designed to be learnt and recited orally, the argument to be presented from memory;

tannaitic and amoraic halakhic statements were memorised verbatim, but the argumentation was

not.56 It therefore appears that Halivni’s dichotomy of either “preserved” or “not preserved” is

flawed due to the Talmud’s nature as an oral, not a written, text. Even the Geonim did not

primarily study the Talmud from written texts—it was in the early medieval Diaspora that this

practice began.57 While a written essay has the wording of its argument immortalised and

preserved for all time, the lecture notes of that same teacher when they teach the content of their

essay does not. This lecture note analogy seems a better description of the anonymous dialectic

in the Geonic academies.

Rather than assume, then, that some dialectic was unsystematically preserved by

Amoraim, and the rest was reconstructed by Stammaim, it seems easier to posit that the

Amoraim treated the dialectic material in a similar way to the Stammaim, even if the wording

was not fixed. Thus when an Amora answers an anonymous question, it is not that this piece of

dialectic happened to be remembered but rather that this question was always an integral part of

the sugya. This is the approach of Sussman.58

It seems that Halivni in FBT could be too bound to the idea that essentially all

anonymous material in the Bavli was reconstructed by the Stammaim. An easier approach would

be to relax his distinction between something being preserved and not and posit a middle ground,

that the content of something can be preserved without the wording.

His analysis of tannaitic material does not suffer from this problem as the texts, especially


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the Mishnah, seem to have been fixed much more firmly earlier on. However, I am curious as to

how orality affects his distinction between something having explicit Scriptural justification

(such as a she-ne’emar), or when it does not (in most of the Mishnah). After all, in a culture

where the people reciting these texts have learnt the Tanakh by heart, how much difference is

there between explicitly stating a verse and implicitly referring to verses by the choice of

wording and terminology? (As an example, the second chapter of Makkot uses a lot of awkward

and difficult wordings in part, perhaps, to conjure up biblical illusions for an obscure area of law,

the Cities of Refuge.) Perhaps the author of the Mishnah did not see themselves as creating a text

without justification but instead a text for experts who would already implicitly know the

justification? This matter requires further investigation.

Diachronic versus synchronic

By far the biggest weakness of Halivni’s historical analysis of the period of the

Stammaim and Amoraim is that it is only diachronic amongst Rabbinic literature and uses no

synchronous evidence whatsoever. Totally missing is any comparison to the Sassanian culture in

which the Babylonian Amoraim lived; absent is the persecutions that Rav Sherira Gaon reports in

his Iggeret at the end of the Sassanian period; and the Muslim conquest of Babylonia is never

mentioned. This surely is the only way of precisely dating the activity of the Stammaim: do their

methods and styles share anything with Zoroastrian literature? With Muslim literature? Historical

periods in popular consciousness are normally begun and ended by dramatic periods of conquest

or upheaval: how did the meteoric rise of Islam play into the end of the amoraic era and the

beginning of the stammaitic? None of these issues does Halivni bring into his analysis.


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In his exploration of the relationship between Mishnah and midrash in MMG, he uses

several several instances of synchronic proof, such as Herod’s expansion of the Temple, and

Josephus’ hesitation about changing the order of Scripture.59 And yet, in his analysis in FBT,

none of this previous historical sensitivity is present. Such treatment would have greatly enriched

his work and his historical conclusions beyond compare.

Halivni is, at his core, an excellent reader of texts; he is not a historian. His speculative

historical analysis based only on internal evidence from the Bavli itself should not be relied upon

to make specific, well-founded historical claims. In broad strokes this method can work. For

example, it is possible to show when one sugya is finished earlier or later than another, as he

does often and convincingly throughout his MM and FBT. This relative dating can be accurate,

but of limited use when there are no synchronous influences to compare it to.60

The broad picture he paints is also clear. The Bible, uniquely among literature of the

ancient Near East, includes justification for its laws. This was then also a central feature of the

midreshei halakhah, while in the Mishnah it is notably absent (though the significance and extent

of this is disputed). The Stammaim introduced the idea that dialectics was in and of itself Torah,

a goal unto itself. And thus we have the overall obsession, with obvious exceptions, of Rabbinic

literature with justifying the laws by Scripture or by logic. This historical narrative is both well

thought-out and inspiring, a story of the people who are not slaves to God, following the Divine

will without question, but who require justifications, who wish to always delve deeper in

understanding why we are required to do what we do, a people who is worthy of living up to

Genesis’ interpretation of the name Israel: the one who fights with God.


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Footnotes

1 Halivni, D. W. (1986). Midrash, Mishnah and Gemara: The Jewish predilection for

justified law. Cambridge, MA and London, England: Harvard University Press.

2 Halivni, D. W. (2013). Formation of the Babylonian Talmud. (J. L. Rubenstein, Trans.).

Oxford: Oxford University Press. (Original work published 2007).

3 Kalmin, R. (1987). Midrash, Mishnah and Gemara: The Jewish predilection for justified

law (Review). Conservative Judaism 39(4), 78-84.

4 Chapters 2-4, pp. 18-65.

5 Part II, pp. 103-116.

6 MMG, p. 4.

7 MMG, pp. 10-14.

8 MMG, p. 14.

9 MMG, p. 11.

10 MMG, p. 15.

11 MMG, p. 40.

12 MMG, pp. 41-42.

13 MMG, pp. 38-40.

14 Kalmin, p. 81.

15 MMG, p. 48 ff. See, for example, the case in Mishnah Bikkurim 1:1-2.

16 FBT, p. 104.

17 MMG, p. 22: the example of Mishnah Bikkurim 1:8.

18 Kalmin, p. 82.


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19 See n. 14 above.

20 Tucker, E. (2014). In Talmud lecture series at Yeshivat Hadar, “Talmud with

Rishonim”. New York.

21 Halivni discusses a similar possibility in MMG, p. 59 ff., with regards to the School of

Rabbi Yishmael.

22 MMG, p. 64.

23 FBT, p. 103.

24 MMG, p. 93.

25 Boyarin, D. (2007). Hellenism in Jewish Babylonia. In C. E. Fonrobert and M. S. Jaffee

(Eds.), Cambridge Companion to the Talmud and Rabbinic Literature (pp. 336-363). Cambridge,

England: Cambridge University Press.

26 See Part I of FBT, pp. 3-61, for extensive discussion, proof and references to various

volumes of MM.

27 See Part II of FBT, pp. 63-85 mainly, for extensive treatment of this claim with

numerous examples.

28 MMG, p. 98.

29 See MMG, Part II, n. 45, p. 235 and references to Tosafot Shabbat 9b.

30 FBT, p. 85.

31 FBT, p. 86-87. See also MM Baba Metzia 12.

32 FBT, p. 85, and see Part II, n. 39, p. 235.

33 FBT, Part II, pp. 117-154.

34 FBT, p. 118.


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35 FBT, p. 133.

36 FBT, p. 119.

37 FBT, p. 123 ff.

38 For analysis of this point, see the conclusion.

39 FBT, p. 146.

40 FBT, p. 3 ff.

41 MMG, p. 76.

42 FBT, pp. 5-6.

43 MMG, p. 77.

44 E.g. Tosafot ad loc, s.v. Rav Ashi.

45 Lewin, B. M. (Ed.). (1921). Iggeret Rav Sherira Gaon [The Epistle of Rav Sherira

Gaon], pp. 69-71. Haifa. As quoted and translated in Brody, R. (1998). The Geonim of Babylonia

and the Shaping of Medieval Jewish Culture, p. 5. New Haven, MA and London, England: Yale

Unversity Press.

46 FBT, p. 7-9.

47 An example of this, given by Rav Sherira himself, is the opening sugya of Kiddushin.

48 But if so, why does Rav Sherira allow such limited scope for savoraic activity? This

question requires further thought. It could be polemical, as it would be in his interest in the

Iggeret to argue for the antiquity of as much of the Gemara as possible.

49 FBT, p.4.

50 FBT, Part IV, pp.155-190.

51 FBT, pp. 168-184. He highlights five types of transpositions there with examples.


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52 FBT, pp. 156-168, with many examples.

53 Ta-Shma, Y. M. (1985). Sifriyyatamn shel Ḥakhmei Ashkenaz Benei ha-Me’a ha-

YodAlef-YodBet [The Library of the Ashkenazi Sages in the 11th-12th Centuries]. Kiryat Sefer

60, pp. 298-309, especially p. 301.

54 FBT, p. 124.

55 Brody, p. 159.

56 See Fishman, T. (2011). Becoming the People of the Talmud: Oral Torah as written

tradition in medieval Jewish cultures. Philadelphia, PN: University of Pennsylvania Press. P. 33

for an account of Talmudic instruction during the geonic period, based on Iggeret Rav Sherira

Gaon.

57 See Brody, pp. 156-161, and Fishman throughout.

58 Such as Sussman, Y. V’Shuv L’Yerushalmi Nezikin (1990). In Y. Sussman, D.

Rosenthal (Eds.), Meḥkerei Talmud [Talmudic Studies] Vol. I (pp. 55-133). Jerusalem: Magnes

Press.

59 See notes 12 and 13 above.

60 Compare to Baba Kamma 117a where the Persian word for cushion, bistarka, can

conclusively date that sugya to the Sassanian period. See Sperber, D. (1982). On the Unfortunate

Adventures of Rav Kahana: A Passage of Saboraic Polemic from Sasanian Persia. In S. Shaked

(Ed.), Irano-Judaica: Studies telating to Jewish contacts with Persian culture throughout the

ages (pp. 83-100). Jerusalem: Yad Izhak Ben-Zvi.

tabick halivni rabbinic literature (sem5004)

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