period of Roman law—which includes the second and third centuries—the secular successors of the priest-jurists dealt exclusively with civil law.26 The rabbis, in contrast, in their role as jurists in the Mishnah’s narratives, focus primarily on law that would not have been relevant in a Roman court: Judaean ritual law.27 Of seventy-six case stories and related texts in the Mishnah, only six are about civil law and six are about matters of family law not exclusive to Judaean law.28 This finding corresponds to that of Martin Goodman that the rabbis “attempted to control Jews in Galilee only in religious rather than secular matters.”29 It also correlates with Shaye Cohen’s finding that in (presumed) tannaitic (from the time of the Mishnah) case stories throughout the entire rabbinic corpus, only 4.4 percent of cases deal with civil law.30
To be sure, rabbinic law included in the Mishnah encompasses ritual law and civil (and criminal) law—all the areas of law already found in the Torah. In the Mishnah, rabbis frequently have opinions in all these areas of law; occasionally, they are even depicted issuing opinions on civil or family law cases. Yet in the vast majority of narratives that purport to describe the actual legal role played by the rabbis, this role is limited to ritual law. Thus in the Mishnah’s narrative depictions, the rabbis are not, as Goodman and Hezser suggest, jurists within the Roman legal system where their opinions would have mattered in cases adjudicated in the local courts controlled by the Romans, but jurists—styled after Roman jurists—of Judaean ritual law whose opinions mattered in the practice of Judaean ritual and in the development of Judaean law.31
This limitation of rabbinic juristic activity to the ritual sphere can best be explained by the realities of living under Roman domination. As noted at the beginning of this chapter, rabbis, as local legal experts, did not have—and could not have had—any legal jurisdiction recognized by the ruling of the Romans. Thus any decisions in these realms would not be enforceable. Similarly, rabbis could not have acted as jurists within official Roman venues. In asserting jurisprudential authority over Judaean ritual law, the rabbis (or at least the Mishnah, in its depiction of the rabbis) were laying claim to the only area of law left available by the Romans and thus that they could have controlled. Indeed, later Roman law, particularly two edicts issued by the emperors Arcadius and Honorius in the years 397 and 398, legalized or perhaps affirmed the distinction between Roman civil law and Judaean (Jewish) ritual law, and placed control over Judaean ritual law firmly in the hands of Judaeans (Jews).32 In the edict of 398 (Theodosian Code [CT] 2.1.10), these emperors require that Judaeans address Roman courts, except in matters pertaining to their “superstition” (“religion” in CT ’s commentary).33 At roughly the same time, they also ruled (CT 16.18.13) that Judaeans were obligated to follow Judaean ritual law—called “ceremonies”—as determined by ritual authorities named as “the illustrious patriarchs,” “the archsynagogues,” the “patriarchs,” “the presbyters,” and “others who are occupied in the rite (sacrament) of that religion.”34 In this sense, the Judaeans are made explicitly parallel to Christians who are bound by Christian ritual law.35 These Christian Roman emperors living two centuries after the time of the Mishnah may well have had a vested interest in “marking out … the Jews as ‘absolute other’ to Christianity,” and doing so by inventing both as “religions.”36 Yet their assumption that Judaean ritual law—what would for them fall under the rubric of superstitio/religio (“religion”)—was a discrete body of law distinct from Roman law likely goes back to earlier centuries, when Roman administrators and authorities would not have had interest in any type of law outside the boundaries of Roman law. Roman authorities in the time of the Mishnah were, however, interested in enforcing areas of law that fell within the bounds of Roman law; and the rabbis, as evidenced by the Mishnah’s case stories, were thus claiming authority over the only body of law that was available: ritual law.
Rabbinic Jurists and Not Rabbinic Courts
The reconstruction I have put forth for the judicial role that the rabbis claimed for themselves goes against a commonly held view that the rabbis were members of rabbinic courts in Yavneh and elsewhere.37 The strongest evidence in the Mishnah for this alternative view can be found in four passages that claim that individual rabbis had their own court: in one, Rosh Hashanah 2:8–9, Rabban Gamliel (located in Yavneh) has his own court; and in three, “Rabbi,” that is, Rabbi Yehudah the Naśi, has his own court.
This limited evidence about Rabban Gamliel and Rabbi Yehudah the Naśi does support the notion that the rabbinic authors of the Mishnah claimed that a handful of rabbis were part of a court. However, this conclusion should not be extended to the rabbis generally. The first reason that the evidence for court affiliation should be limited to the two rabbis about whom the Mishnah is explicit is that these two rabbis are exceptional. “Rabbi” is the first rabbi to be given the special title naśi, meaning “head of the court” or perhaps “patriarch”; and Rabban Gamliel, with the relatively unusual title “Rabban,” was remembered as Rabbi’s progenitor. Even if one or both of them were not officially a patriarch in the sense used in later Roman, Christian, and rabbinic texts, they were certainly illustrious rabbis.38 They may have been part of a judicial court, but that does not mean that any other rabbis were. This argument is supported by the details of the story in Rosh Hashanah 2:9 in which Rabban Gamliel forces Rabbi Yehoshua (Joshua) to follow his ruling about the new moon: while Rabban Gamliel has his own court, none of the other major rabbis in the story—Rabbi Yehoshua, Rabbi Akiva, and perhaps Rabbi Dosa ben Arkhinas—is a member of this court.39
If the two illustrious rabbis, Rabban Gamliel and “Rabbi,” are indeed heads of their own courts, these courts, as indicated in the examples, are not the typical courts found throughout the Mishnah. Normally in the Mishnah, courts are institutions that adjudicate cases, mete out punishments, and oversee formal legal actions.40 In these cases, in contrast, the rabbinically led courts do not perform any of the typical functions of a court. Rather, the two rabbinic “courts” make law and determine how rituals should be performed—the typical juristic rabbinic legal function. In the case of Rabban Gamliel, the court questions witnesses, a typical adjudicatory function. But determining the new month is not a regular type of adjudication; it is a rendering of a decision on a nonjudicial matter (whether the new moon has been seen) in a matter of law with ramifications only for ritual practice (when the Day of Atonement is celebrated). One could even argue that it is simply a ruling on a point of ritual law in a manner similar to the juristic decisions rendered throughout the case-story genre in the Mishnah. The same can be said about “Rabbi’s” court, which never adjudicates but only takes a vote to determine what the law is regarding the purity status of a city (’Ohalot 18:9), the transfer of property (Giṭṭin 5:6), and food consumption (‘Avodah Zarah 2:6). With the possible exception of determining the new moon, the rabbinic courts in the Mishnah do not adjudicate in any way but perform the juristic legal function of determining what the law is; as in the examples portraying rabbis as jurists, the law is in the domain of Jewish ritual practice in most of these cases.41 Thus even in these exceptional cases in which rabbis are part of courts, the depiction seems to be an extension of the more common portrayal of rabbis as jurists in the area of traditional Judaean ritual law.42
Authority over Judaean Ritual Practice
By portraying themselves as jurists who issue rulings in matters of ritual law, the rabbis of the Mishnah were not merely claiming to be authoritative arbiters of this body of law in an academic sense. Nor were they merely maintaining that their version of the traditional way of life was correct. By imagining themselves issuing rulings, the rabbis were also asserting that Judaeans facing an ambiguous matter of ritual practice should consult with them. They were arguing that Judaeans should perform these rituals the way they say and that their rulings were universally applicable, to rabbis and non-rabbis alike. Even if no Judaeans besides rabbis had access to the text of the Mishnah, either directly or through informal communication with rabbis, the portrayals of rabbis therein still make the argument that all Judaeans should be following the dictates of the rabbis and should practice the traditional
