The "Oral Torah":

History and Literature

Earliest Records:

Josephus Flavius, Jewish Antiquities 13:297:

The Pharisees had passed on to the people certain regulations handed down by previous generations, but not written down in the Law of Moses. For this they were rejected by the Sadducee party.

Rabbinic Traditions about the earlier period:

Many laws were transmitted and derived, but only one dispute ("laying of hands").

Mishnah Hagigah 1:8:

Absolution of vows
hover in the air without any support. Laws of the
Sabbath,

Pilgrimage Offerings,

Sacrilege
are like mountains hanging by a hair. They have little Scriptural support, but many halakhot.
Civil laws,

Sacrificial worship,

purity and impurity and

prohibited marriages
have much support. They are the essentials of the Torah.

Hillel and Shammai (1st century B.C.E.):

Hillel the Elder, from Babylonia

Seven hermeneutical rules.
Enactments (e.g., prosbul).

Shammai

Apparently a conservative. No discernible legal philosophy.

A handful of disputes recorded between Shammai and Hillel--No consistent pattern.

The "Houses" of Shammai and Hillel and the Proliferation of Disputes

Rabbinic sources record hundreds of diputes between the "Houses." The institutional character of these schools is unclear, as are their chronology and numbers.

In general, the House of Hillel is more lenient (but there are many exceptions to this rule).

Reasons suggested for proliferation of disputes at this time:

Collapse of decision-making mechanism; multiple factions in the Sanhedrin.
Confusion created by heretical and foreign influences.
"The students did not attend their teachers sufficiently."
Debate is a healthy phenomenon that enriches the process of scholarship.

Earliest strata in the Mishnah appear to have been redacted in the generation preceding the Destruction, especially material related to Temple worship (J. N. Epstein). Why?

In the Wake of the Destruction:

Rabban Yohanan ben Zakkai:

A respected Pharisee spokesman before fall of Jerusalem, he expressed views that deemphasized the importance of the Temple.

Talmudic legend states that before the fall of Jerusalem he defected to the Roman camp and established an academy (?) at Yavneh (Jamnia).

The discussions at Yavneh are described in considerable detail, including the citation of prooftexts and logical arguments.

Interplay or tension between received tradition and logical argumentation.

The Riddle of the Tractate Eduyyot ("Testimonies"):

Unique Tractate of Mishnah consists of "testimonies" of halakhic traditions cited by Yavnean Rabbis, arranged according to the names of the transmitters. Most of the material has parallels elsewhere in the Mishnah. Why include such a tractate?

Talmudic tradition (Tosefta Eduyyot 1:1) describes how the Rabbis of that generation, fearing that the [Oral] Torah would be forgotten, initiated a collection of the traditions, commencing with the traditions of Shammai and Hillel.

According to H. Albeck, this was the first tractate of the Mishnah. The rest of the Mishnah evolved as an expansion of the material in Eduyyot.

Note that the Rabbinic sources do not see the activities of the Yavnean Rabbis as a response to the historical events, but as an internal evolution in the history of religous scholarship.

The 2nd Century: The Schools of Rabbis Akiva and Ishmael:

The schools are better known for their respective systems of Midrash, ways of reading the written Torah in light of the oral tradition.

Rabbi Ishmael's method was more respectful of the literal meaning of the Biblical text, often making allowances for human quality of the language.

Rabbi Akiva attached signficance to every detail of the text, including particles and extra letters. He was thereby able to produce an extremely flexible vehicle of linking oral traditions to the words of the Torah. Both teachers initiated schools which produced midrashic commentaries on the legal sections of the Pentateuch.

It appears that Rabbi Akiva was involved as well in the organization of traditions according to the "Mishnah" method: by topics, not following the order of the Bible. There is no evidence of such activity among the students of Rabbi Ishmael.

The major component of the Mishnah consists of teachings of the students of Rabbi Akiva, in the generation of "Usha" following the Bar Kokhba revolt and the resultant migrations to from Judea to the Galilee. There is a likelihood that the School of Rabbi Ishmael fled to Babylonia, where their views seem to have exerted an influence upon the traditions that developed there.

A Talmudic tradition identifies anonymous statements in the Mishnah with the teachings of Rabbi Akiva's student Rabbi Meir. This can be corroborated to some extent by internal evidence, though this is true (to a lesser extent apparently) of other students of Rabbi Akiva as well. This has been construed as implying that the Mishnah was based mainly on a preliminary redaction by Rabbi Meir, which was supplemented by material from several of his colleagues. Underlying all these hypothetical Mishnah compendia were the teachings of Rabbi Akiva himself, which are usually taught anonymously.

Rabbi Judah Ha-Nasi (the Prince, the Patriarch) and the Redaction of the Mishnah:

Rabbi Judah ben Simeon (usually referred to as "Rabbi" or "our Holy Rabbi") served as Nasi, the political representative of Palestinian Jewry and head of the Jewish religious assembly, the "Sanhedrin."

All ancient traditions credit him with the redaction of the final version of the Mishnah.

Rabbi Judah had studied with all of the important teachers of the "Usha" generation (Rabbi Meir and the other disciples of Rabbi Akiva). and was able to collect their teachings in an authoritative form.

The collection immediately gained acceptance by the Rabbinic communities of Palestine and Babylonia.

Scholars disagree over several key issues regarding Rabbi's objectives in producing the Mishnah:

Did he impose his personal views on the received text, or did he merely record the normative views (presumably decided by majority vote in the Sanhedrin)?
Did he introduce changes into the received traditions? It is generally agreed that he combined the traditions very creatively.
Was his intention to produce a usable codex of law, or merely an anthology of traditions?
The previous question is closely linked to the explanation of why and how disputed opinions were incorporated into the Mishnah. Later generations devised rules for choosing among the various views; e.g., an anonymous view overrides a named one. Did Rabbi Judah have such rules in mind in presenting the materials, or was he merely collecting the different opinions without intending to indicate a preference?

The widespread acceptance of the Mishnah is indicated by the fact that subsequent works of Tannaitic literature, including Midrashic compendia from the School of Rabbi Ishmael and the Tosefta, were edited so as to serve as supplements to the Mishnah.