historical perspectives: from the hasmoneans to bar kokhba in light ...

"[T]HE[Y] DID NOT READ IN THE SEALED BOOK" 1 1 7
institutional authority was their main source of legitimacy. 37 This line
of thought has been adopted by other scholars as well. 38
The context in which Urbach has dealt with this phenomenon
was the much debated question of which form of study of the unwritten
law was prevalent and common prior to the rabbinic
period: midrash or, in this context, mishnah (i.e., fixed laws
without any reference to Scripture). This question, which can be traced
back to Maimonides and Nachmanides (as representatives of the opposing
views), has occupied the minds of Jewish scholars for generations.
Urbach's contribution lay in his attempt to discuss it in a historical
manner and to argue for an evolution and a historical change.
I too wish to follow a similar path and to argue, with Urbach,
that in the period when these rulings were given, the appeal to
Scripture was simply uncommon. The context, however, into which
I put the matter is slightly different; I focus on the mode of religiosity
presented by the change. Therefore, I would stress not only
institutional authority but also the possibility that in halakhic matters,
arguments and justifications were drawn from the simple sense of the
matter under discussion and that any appeal, if necessary, was to the
paradosis tan pateron, the tradition of the fathers, not to textual evidence. 39
IV
The minor role played by the text of the Torah in halakhic contexts
in those remote days becomes more and more apparent as we
look closely at the earliest passages where reference to Scripture is
to be found: by and large their use of the biblical text is in a manner
very close to its plain meaning. At times, they even seem to be
a mere repetition—in a paraphrase or in another language—of the
relevant verses to the halakhic issue under discussion. 40 This fact,
37 Urbach, "The Drasha."
38 See, for example, Herr, "Continuum," 53-54.
39 So too Schwartz, "Hillel," 337. See also M. D. Herr, "The Role of the Halacha
in the Shaping of Jewish History," Contemporary Thinking in Israel 1 (1973): 32-35.
40 See, for example, Yose ben Yoezer's halakhic testimony
(m. 'Ed. 8:4), which seems to be a mere translation into Aramaic of Num. 19:11:
("One who touches a corpse ... is unclean
for seven days"). See Rosenthal, 451-52 n. 15. Cf. Halivni, Midrash,
Mishnah, and Gemara, 27-30; J. M. Baumgarten, "The Pharisaic-Sadducean Controversies
about Purity and the Qumran Texts," JJS 31 (1980): 161.