Mishnah and Halakhah
Files
Description
A comparison of the legal traditions we have from the days of the Second Temple and the halakhah in the Mishnah points to the extraordinary legal innovations that were produced in the academies of the rabbis. However, studying the details of these specific innovations obscures, at times, a greater, more fundamental and highly significant transformation: the very creation and emergence of halakhah itself. Although the Mishnah reveals a wide expanse of legal innovations, from the laws of Shabbat to the rules of capital punishment, it bears witness to something more foundational: the shift from Mitzvah (commandment) to halakhah. This transformation signifies one of the most essential characteristics of the Mishnah. If we wish to understand what the Mishnah is, it is essential to gain clarity on what halakhah is. Second Temple literature—the Apocrypha, Qumran Scrolls, the writings of Philo and Josephus—is full to the brim with different legal traditions, yet lacks anything akin to halakhah. For example, in an echo of the biblical commandment, the obligation to fulfill a vow appears in this literature several times. However, nothing even slightly resembling the complex mishnaic tractate of Nedarim (vows), with its eleven detailed chapters, appears in Second Temple literature. Even more so, the extensive interpretive elaboration of the rules entailing the taking of a vow, stretching on for dozens of pages in both the Bavli and Yerushalmi, would not have been possible based on the thin interpretive material of pre-rabbinic literature. The essence of the emergence of halakhah is the establishment of a dense field of highly specific instructions that are meticulously calibrated in great detail. The Mishnah represents, therefore, not only a shift in the content of halakhah, but rather the very emergence of halakhah. To make clearer the distinction between commandments and halakhah, and to gain a better grip on what is meant by halakhah, let us imagine the legal realm as a topographic map. In a topographic map the density and dispersal of the different elevation lines differ from one area to the next; a mountainous terrain will have a much higher density of elevation lines, which will appear from a distance as an indistinguishable blob, while a plain will be apparent through the sparseness of lines. Laying out the law in the form of a map will make apparent that the density of rules is not uniform; there are areas in which we have few rules, and areas that are saturated with rules. To define a certain normative space as halakhah, and not just as a commandment, a certain threshold of rule density must be reached. The map of biblical law will show that the only spheres that may be named halakhic are those associated with the Temple, and this is not mere coincidence; it aids us in defining the nature of the sacred place. The sacred is the space that is saturated with instructions, in which accessibility, movement, and actions are not immediate. In this highly regulated space, actions are mediated through specific and precise norms. The Temple is like a minefield in which one must walk carefully; the price of any mistake is very high, and the norms of traversing such a place must be very clear and precise. It is therefore not surprising that the densest legal context in the Torah is the chapter which deals with the entry of the high priest into the inner sanctum of the Temple, and the rituals of atonement and purification that took place on Yom Kippur. In creating legal realms rich with rules in vastly diverse fields, the rabbis initiate a major expansion of the domain of halakhah beyond the initial sacred space of the Temple. For example, the chapter in the Mishnah in the tractate of Sukkah, which deals with the four plant species that are taken on the holiday of Sukkot and defines, in far greater detail than the Torah, what exactly these plants are and what constitutes their proper state, amounts to a sanctification of these plants.
Source Publication
What Is the Mishnah? The State of the Question: The Proceedings of a Conference at Harvard University
Source Editors/Authors
Shaye J. D. Cohen
Publication Date
2023
Recommended Citation
Halbertal, Moshe, "Mishnah and Halakhah" (2023). Faculty Chapters. 1110.
https://gretchen.law.nyu.edu/fac-chapt/1110
