In the famous opening mishnah of Tractate Avot, in the Babylonian Talmud, the members of the Great Knesset are cited: “They said three things: Be moderate in your judgments, produce many students and make a safety fence around the Torah” (Tractate Avot 1:1). This mishnah is addressed to the members of the new intellectual class that became prominent in Jewish society during the era of the classical sages – the talmidei hahamim (talmudic scholars). The instructions given to these scholars cover three spheres of their responsibility: their role as judges and their duty to pass judgments; their role as scholars and the academic aspect of their function, which they carry out in the talmudic academy where they clarify issues, analyze relevant verses, quote and discuss ancient rabbinical sayings; and their role as legislators responsible for creating new laws. This brief academic discourse concludes with the first aspect of their role, whose praxis occurs by means of the minyan, the counting – the vote taken among the members of the rabbinical court in order to reach decisions.
After the Temple in Jerusalem was destroyed and the Jews in Palestine lost their political rights, talmudic scholars could no longer fulfill their role as judges – they could no longer sit in rabbinical courts and be active members of the judicial system. This point is obvious with regard to dinei nefashot (laws involving life), and even as judges in matters of dinei mamonot (laws involving money), talmudic scholars probably had only limited powers. Nonetheless, and perhaps because of this fact, the judicial procedures appearing in the mishnayot of the Babylonian Talmud’s Tractate Sanhedrin primarily concern courtroom procedures – how judges should deal with laws involving life and laws involving money, how testimony should be taken, how the punishment of lashing (malkot) should be administered, how executions should be carried out and how the sentence of exile should be implemented. The other two roles of talmudic scholars – academic study and legislation – are hardly mentioned in these mishnayot.
In contrast, in the Tosefta to Tractate Sanhedrin, one finds an entire series of complex rules concerning legislative and academic procedures that were apparently followed in the rabbinical court in Yavneh after the Temple’s destruction. In the opening passage of this list, one reads: “Rabbi Yossi taught: ‘In the beginning [barishona], disputes in Israel were dealt with in a court that had 71 judges and which held its proceedings in the Chamber of Hewn Stone [lishkat hagazit, situated in the Temple Mount area. The other rabbinical courtrooms, consisting of 23 judges each, were situated in small towns throughout the Land of Israel. There were three rabbinical courts in Jerusalem – one on the Temple Mount, one in the area adjacent to the Temple’s external supporting walls [and the Great Rabbinical Court in the Chamber of Hewn Stone in the Temple Mount area].
“People in need of a judgment on a matter of Jewish law would go first to the courtroom in their own city. If there was no courtroom in their city, they would go to the courtroom in the nearest city. If the judges had an answer to the question, they would say so; if not, the applicant and a representative of that court would go to the court on the Temple Mount. If the judges had an answer to this question, they would say so; if not, the applicant and a representative of that court would go to the court in the area adjacent to the Temple’s external supporting walls. If the judges there had an answer to this question, they would say so; if not, the applicant and the representatives of the lower courts would go to the Great Rabbinical Court in the Chamber of Hewn Stone in the Temple Mount area. Although generally speaking the Great Rabbinical Court in the Chamber of Hewn Stone consisted of 71 judges, it could also function with a minimum of 23…. There the judges would sit from the time of the Permanent Sacrifice of Early Dawn [(olat) tamid shel shahar] until the time of the Permanent Sacrifice of Twilight [(olat) tamid shel bein ha’arbayim]. On the Sabbath and on religious holidays, they would sit [and study] in the talmudic academy on the Temple Mount. A question [concerning religious law] would be asked of them. If the judges had an answer to this question, they would say so; if not, they would vote. If most of the judges ruled that the item in question was ritually impure, then the verdict was ‘Impure’; if most of them ruled that the item in question was ritually pure, then the verdict was ‘Pure.’ That verdict would then be disseminated throughout the Land of Israel” (Babylonian Talmud, Tractate Sanhedrin, Tosefta 7:1).
Rabbi Yossi opens his statement with the word “barishona” (In the beginning) and the reader immediately realizes that he is describing a situation that no longer exists. In this idyllic historical portrait, he graphically describes a hierarchical judicial system for decisions on matters of religious law that is applied throughout the land.
This description of the way matters of religious law are decided is incongruent with the role of the Great Sanhedrin as depicted in the Mishnah, where it is described as being in charge not only of legislation related to religious law but also of judicial procedures over such serious issues as the fate of an entire tribe, the verdict for a High Priest on trial, or a false prophet, or the decision as to whether or not a war should be launched (Babylonian Talmud, Tractate Sanhedrin, Mishnah 1:5). What is the meaning of this discrepancy between the Mishnah’s description of a Sanhedrin serving in a judicial capacity and the Tosefta’s description of a Sanhedrin serving in a legislative capacity?
In an article in Hebrew, “The ‘Protocol’ of the Court in Yavneh: A New Look at the Tosefta to Sanhedrin, Chapter 7,” Ishay Rosen-Zvi proposes that the Tosefta’s description of the Great Rabbinical Court in Jerusalem is simply a concealed midrash interpreting verses in this week’s Torah portion. In Parashat Shoftim (Deuteronomy 16:18-21:9), God commands the Israelites to establish a judicial system: “If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke, even matters of controversy within thy gates; then shalt thou arise, and get thee up unto the place which the Lord thy God shall choose. And thou shall come unto the priests, the Levites, and unto the judge that shall be in those days; and thou shalt inquire; and they shall declare unto thee the sentence of judgment. And thou shalt do according to the tenor of the sentence, which they shall declare unto thee from that place which the Lord shall choose; and thou shalt observe to do according to all that they shall teach thee” (Deuteronomy 17:8-10).
The description in the Tosefta of the individual who goes from one courtroom to another is a reworking of these verses: The words “If there arise a matter too hard for thee in judgment,” are rendered in this midrash as, “People in need of a judgment on a matter of Jewish law,” whereas the words “then shalt thou arise, and get thee up unto the place which the Lord thy God shall choose” are rendered in the midrash, as “they apply to the third court in Jerusalem – the Great Rabbinical Court in the Chamber of Hewn Stone in the Temple Mount area.” Similarly, the phrase, “and thou shalt observe to do according to all that they shall teach thee,” becomes, “That verdict would then be disseminated throughout the Land of Israel,” while the three levels in the judicial system appearing in the Tosefta are a midrashic interpretation of, “And thou shall come unto the priests, the Levites and unto the judge.”
While the Mishnah presents an idyllic picture, the Tosefta presents a judicial system that is a reflection of the one operating in Yavneh after the Temple’s destruction. The passage in the Tosefta about what the judges did on the Sabbath and on Jewish holidays is highly illustrative. The Tosefta says, “On the Sabbath and on religious holidays, they would sit [and study] in the talmudic academy on the Temple Mount,” which means that the Great Court was primarily a talmudic academy, one that on weekdays functioned as a court.
According to Rosen-Zvi, the Mishnah portrays a Temple that functions apart from the political reality, whereas the Tosefta depicts a Temple that is functioning in the political reality of a post-Temple era. The sages imagine the destroyed Temple as a replica of their talmudic academy and thus create a historical continuum between the above verses from this week’s Torah reading and the actual praxis in their era.