The authorities of the sages : how the Mishnah and Tosefta differ

Abstract

The Mishnah and Tosefta are two related works of legal discourse produced by Jewish sages in Late Roman Palestine. In these works, sages also appear as primary shapers of Jewish law. They are portrayed not only as individuals but also as “the SAGES,” a literary construct that is fleshed out in the context of numerous face-to-face legal disputes with individual sages. Although the historical accuracy of this portrait cannot be verified, it reveals the perceptions or wishes of the Mishnah’s and Tosefta’s redactors about the functioning of authority in the circles. An initial analysis of fourteen parallel Mishnah/Tosefta passages reveals that the authority of the Mishnah’s SAGES is unquestioned while the Tosefta’s SAGES are willing at times to engage in rational argumentation. In one passage, the Tosefta’s SAGES are shown to have ruled hastily and incorrectly on certain legal issues. A broader survey reveals that the Mishnah also contains a modest number of disputes in which the apparently sui generis authority of the SAGES is compromised by their participation in rational argumentation or by literary devices that reveal an occasional weakness of judgment. Since the SAGES are occasionally in error, they are not portrayed in entirely ideal terms. The Tosefta’s literary construct of the SAGES differs in one important respect from the Mishnah’s. In twenty-one passages, the Tosefta describes a later sage reviewing early disputes. Ten of these reviews involve the SAGES. In each of these, the later sage subjects the dispute to further analysis that accords the SAGES’ opinion no more a priori weight than the opinion of individual sages. They result in a narrowing of the scope of the SAGES’ opinion and a broadening of the scope of an individual sage’s opinion. By applying rational criteria, these reviews have the effect of undermining the SAGES authority. However, the full body of twenty-one Toseftan reviews is apparently motivated by an increased emphasis on rational analysis rather than an agenda to undermine that authority. This approach prefigures the later, more comprehensive use of rational analysis to evaluate the whole of tradition that is found in the Babylonian Talmud.