At a crucial stage of my early career as I was considering a topic for my dissertation, I came across the masterful yet challenging essay of the late E.P. Sanders, “Did the Pharisees eat Ordinary Food in Purity?”[1] I was first struck by the ability of a presumably “outsider” to the field of rabbinics to articulate the methodological and halakhic issues to such precision that would mark the necessary directions for advancing the field. (This however should not have surprised anyone who read his confession that he “fell in love”, in his own words, with the rabbis and he insisted on an unmediated knowledge of their writings[2]).
Ultimately, I was captivated by Sanders’ original vision for advancing the study of early Jewish law, which challenged my own scholarly traditions. This included a novel approach to rabbinic source criticism; social contextualization of current legal discourse, and the consideration of the actual real-life experience of Jewish law. In what follows I will briefly relate to these three aspects, which amount to a new image of Jewish Law in practice, resonating with his concept of “common Judaism.”
Reconstructing Early Texts
In the above-mentioned article Sanders re-examined Jacob Neusner’s characterization of the Pharisees as a “pure food club.” Neusner arrived at this description by isolating the explicit traditions regarding Pharisees and the rabbis associated with them in early rabbinic literature.[3] From its earliest stages Neusner’s minimalist approach was formed in opposition to the traditional and in his view uncritical attempts to uncover a comprehensive layer of the “first Mishnah,” which culminated in Jacob Nahum Epstein’s introduction to Tannaitic literature. Epstein’s work, however, deeply influenced Sanders, who even considered translating it. As he writes: “What I learned is that it is possible to do critical historical work with the literature, and in particular to identify the anonymous voice in each tractate or even each chapter.”[4]
At the same time, Sanders admitted that he was unqualified to develop an independent textual approach. Therefore, he chose to rely on Neusner’s more limited data. Sanders side-stepped the problem of attributions by assuming that it was more important to determine the scope of issues treated by the Pharisees rather than the exact details of their views, which may have been distorted by later transmitters. The truth is however that there is no good way to circumvent meticulous textual analysis.
Take, for example, Mishnah Sheqalim 8:6, where the Houses of Hillel and Shammai dispute where to dispose of impure sacrifices. This dispute seems to imply that the Houses had the pretension to supervise over priestly practice (as is famously characteristic of later rabbinic depictions of the Temple). But was it really so? Notably, none of the Houses’ disputes relate to priestly worship and Temple management.[5] Rather, the laws discussed by the Houses are limited to the earlier stages of pilgrimage to Jerusalem, bringing the sacrifices and consuming them. In other words, these Pharisees only sought to regulate popular practice and not priestly conduct. As textual analysis confirms, the surprising dispute in Mishnah Sheqalim regarding sacrifices is a secondary application of another very similar dispute, which originally related to the disposal of impure Second Tithe by the pilgrims (m. Ma‘aser Sheni 3:9). This and additional sources demonstrate the later rabbinic tendency to use the traditions of the Houses for creating a body of rabbinic Temple law.[6]
As this case makes clear, while we may not immediately believe each attribution, it is possible to uncover the earlier forms of Second Temple traditions, and trace their transformation within rabbinic corpus, thus allowing us to discern their earlier forms. This brings us back to Sanders anticipation that “perhaps when the personalities of the present day are forgotten” both modes of analysis (those of Epstein and of Neusner) will be undertaken, by competent talmudists who are open to Neusner’s principles and methods.[7] The message couldn’t have been clearer. Consequently, I took it upon myself to develop more sophisticated and critical textual tools, combining internal literary analysis and external comparative analysis, that would allow us to securely contextualize rabbinic traditions.
Social Contextualization of Legal Discourse
The book Jewish Law from Jesus to the Mishnah appeared in 1990, followed by Judaism Practice and Belief two years later. In the same year Yaacov Sussman published his seminal article on the early history of Jewish law.[8] While sharing the conviction that practice rather than theology determined one’s group affiliation and identity during the Second Temple period, Sanders and Sussman offered two opposite models regarding how Jewish law shaped the contours of Jewish society.
Following the scholarly interest in the legal ideologies of the leading Judean parties, Sussman contrasts the stringent uncompromising Sadducean priests and the flexible Pharisees, who were attentive to the religious needs of the general public. Notably, within this scholarly tradition the actual implementation of the different legal positions within Jewish society is almost insignificant. What matters is the way these Judean elites fit their halakhic rulings into ideological structures. Legal discourse is thus conceived primarily as an arena for ideological dispute. The evident problem with this perspective is that any assumption regarding Pharisaic affinity to popular practice, requires us to consider the actual nature of the widespread norm. However, the study of legal discourse cannot provide relevant insights into this matter.
Sanders on his part (presumably inspired by Josephus) avoided characterizing current halakhic systems. In his view, the careful observance of biblical law in all its forms was a general feature of the Judean way of life, and differences of practice only reflected diverse levels of scrupulousness. In fact, Sanders sought to neutralize the role of legal discourse as shaping distinct ideological systems, while focusing on the real-life experience it entailed. After all, everyone shared the same traditions (and covenant). In this vein, taking the laws of purity as an example, Sanders preferred breaking down the so-called ideal of “purity observance” into discrete sets of practices that were prevalent within Judean society to varying degrees.
Admittedly, this approach has its own limitations. On one level, some legal developments common to early rabbinic and Qumran literature seem to draw from widespread practices. At the same time, the shared concern for purity served a wide array of ideologies, which could be distinguished only through the subtle differences of legal detail.[9]
There is thus a complex relationship between the formal halakhic discourse associated with specific elite groups and popular practice. After Sanders turned the spotlight on “common Judaism” as a constitutive component of the Judean religious practice, we need to further sharpen our exegetical tools to distinguish between law as ideology and law as practice and determine the relationship between them.
Thinking Like an Archeologist
In the same article on purity Sanders dismisses the widespread assumption that women were completely segregated during their menstrual period.[10] He provides two considerations against this view. The first is practicality. In terms of social reality, he writes, it is simply unimaginable to provide menstruants with separate housing and to manage without their contribution to daily labor. Admittedly, we must be careful with this criterion of practicality. After all, our ability as modern and secular people to judge what is considered reasonable in the eyes of ancient pietists is quite limited.
Thus a second consideration that Sanders provides results from the careful reading of the sources themselves. Here he sets an important principle: When studying these detailed, and at times highly scholastic, rabbinic texts we must be attentive to its implicit assumptions concerning the practical reality against which it was formulated. Thus, for example Mishnah Tohorot 2.1 discusses how the indirect touch of a menstruant can contaminate the foods in a pot through the spread of liquids. This mishnah assumes that menstuants would prepare pure food, but they applied a routine of external handling in order not to contaminate the dish. What seems at first glance as rabbinic scholasticism, can in fact provide an insight into the most mundane daily habits, which assisted to normalize what would otherwise seem to require unreasonable efforts.
This is in fact the one major insight I owe to Prof. Sanders that enabled me to write my own history of purity in ancient Judaism. I realized that the substantial gaps between different sets of rabbinic laws of purity do not lie in the specific details of law (which are quite subtle) but in the social image they reflect. With respect to the laws of am ha-aretz (the “common” Jew), we encounter not only a change in rabbinic attitude, but different groups of sources, which assume a radically different social setting.
Thus, Sanders’ heightened sensitivity to the practicalities behind legal formulations (what he calls “thinking like an archeologist”) provided me with the key for tracing the development of purity law through different periods.[11] Arguably, what allows us to contextualize and historicize rabbinic legal literature, as part of our attempt to understand ancient Judaism more generally, is not necessarily the interpretation of the rabbis’ policy but their underlying assumptions regarding the reality to which they were responding.
Prof. Sanders contributed major breakthroughs to the study of rabbinic Judaism beyond the limited discipline of history of Jewish law, as I described here. Yet the least I could do is testify to my own immeasurable indebtedness to his insights and scholarship. יהי זכרו ברוך
[1] Ed P. Sanders, Jewish Law from Jesus to Mishnah: Five Studies, (London and Philadelphia: SCM Press, 1990), 131-254
[2] Ed P. Sanders, “Comparing Judaism and Christianity: An Academic Autobiography,” Redefining First Century Jewish and Christian Identities: Essays in Honor of Ed Parish Sanders, edited by Fabian E. Udoh et al. (Notre Dame: University of Notre Dame Press, 2008, 11-41 (19).
[3] Jacob Neusner, The Rabbinic Traditions about the Pharisees before 70. 3 vol., (Leiden: Brill, 1971).
[4] Sanders, “An Academic Autobiography,” 19-20
[5] The only exception is a theoretical discussion regarding the number of blood sprinklings (m. Zevahim 4:1).
[6] For a detailed analysis see Y. Fursteberg, “The Evolution of the Mishnah on the Temple: The Sources of Tractate Sheqalim 5-8,” Meḥqerei Talmud: Talmudic Studies 4, ed. S. Naeh and Y. Rosenthal (Jerusalem: Mandel Institute for Jewish Studies, 2023), 445-517 [in Hebrew].
[7] Sanders, “Did the Pharisees,” 167.
[8] Ya‘akov Sussman, “The History of Halakha and the Dead Sea Scrolls.” In Miqsat Ma'ase ha–Torah, Qumran Cave 4:5, DJD 10. Eds. Elisha Qimron & John Strugnell (Oxford: Clarendon Press, 1994), 179–200. The original Hebrew version was published in 1990.
[9] See Yair Furstenberg, Purity and Identity in Ancient Judaism: From the Temple to the Mishnah (Bloomington: University of Indiana Press, 2023)
[10] Sanders, “Did the Pharisees,”155.
[11] Furstenberg, Purity and Identity, 146-155.