Rabbi Aqiva

Midrash and the Site of Revelation

Azzan Yadin

In his learned, sprawling study of rabbinic exegesis and its theological un-derpinnings, Abraham Joshua Heschel paints a dramatic portrait of Rabbi Aqiva as the paramount Jewish interpreter: “When Rabbi Akiva found difficult or strange language in the Torah, his ears would widen, for in his view strangeness in the text was a gateway to the discovery of the Torah’s secrets … Rabbi Akiva, who extracted from every jot and tittle in the text piles and piles of halakhot, believed it impossible that there be in the Torah a single superfluous word or letter. Each word, each letter issues the invita-tion: ‘Interpret me!’”1 Though Heschel’s view of Rabbi Aqiva is attested in countless descriptions of this tanna, both traditional and modern (Heschel was both), two recent studies offer new insights into Rabbi Aqiva’s inter-pretive practices. These articles – Menahem Kahana’s “On the Fashioning and Aims of the Mishnaic Controversy” and Yishai Rosen-Zvi, “Who Will Uncover the Dust From Your Eyes”2 – approach the question from dif-ferent directions. Kahana’s study analyzes a number of key disputes in the Mishnah and argues that they reflect a shift within the tannaitic world from a legal discourse based on received traditions (shemu‘ot) to one increasingly founded on logical argument (din),3 and that Rabbi Aqiva (along with Rabbi Yehoshua) played an important role in effecting (or at least representing) this change. Rosen-Zvi, who focuses on m. Sotah 5:1–5, suggests Rabbi Aqiva is a key figure in a second shift, in which scriptural prooftexts are adduced to buttress received legal traditions, or, as I suggested at roughly the same time with regard to the halakhic midrashim, “[t]he Sifra … extols Rabbi Aqiva’s interpretive prowess precisely because he is able to anchor existing extra-scriptural halakhot in Scripture, thereby making Scripture

1 Abraham Joshua Heschel, Heavenly Torah as Refracted through the Generations, trans-lated by Gordon Tucker with Leonard Levin (New York and London: Continuum, 2007), 41 and 47.

2 M. Kahana, “On the Fashioning and Aims of the Mishnaic Controversy,” Tarbiz 73 (2004), 51–81; Yishai Rosen-Zvi, “Who Will Uncover the Dust From Your Eyes: Mishnah Sotah 5 and Rabbi Akiva’s Midrash,” Tarbiz 75 (2005–2006), 95–128.

3 See especially the conclusion of Kahana, “On the Fashioning and Aims of the Mishnaic Controversy.” The term din refers especially to qol va-ḥomer arguments.

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the handmaiden and support of extra-scriptural traditions.”4 The present essay further develops both Rosen-Zvi’s and my own arguments in two directions. First, the need to move beyond the Mishnah  – an apodictic text – and discuss the interpretive practices of the Sifra, the legal midrash most closely associated with Rabbi Aqiva.5 Second, to address the dramatic difference in the way Rabbi Aqiva’s midrash is represented in tannaitic ver-sus post-tannaitic sources. To put it bluntly, the familiar portrait of Rabbi Aqiva as a brilliant interpreter of Scripture (Heschel’s view cited above) is only attested in the latter. Tannaitic sources, in contrast, represent Rabbi Aqiva as an interpreter of Scripture, but one committed to the priority of extra-scriptural traditions, halakhot. Ultimately, then, this is an essay about the scripturalization of divine revelation, at least inasmuch as it is associated with the figure of Rabbi Aqiva.

Tannaitic Sources

Before examining the Mishnah and the Sifra, a word is in order regarding the choice of these sources. Needless to say, the Mishnah and Sifra do not exhaust tannaitic literature, and so my findings here may require emen-dation or nuancing in light of future analysis of the Tosefta and the Sifre Deuteronomy. The Mishnah and the Sifra are, however, the outstanding representatives of the apodictic and Rabbi-Aqiva-midrashic genres within tannaitic literature. And even though the Sifra is a collection of rabbinic dicta that cannot be directly attributed to any one rabbinic school or figure,6 there can be little doubt that Rabbi Aqiva is the rabbinic protagonist of the Sifra: he is cited more times than any other sage, his teachers and disciples figure prominently in the work, and, as the following discussion demon-strates, he is repeatedly lauded for his interpretive skills. Also, since the second part of the study deals with the reception of Rabbi Aqiva in later rabbinic sources, it makes good sense to examine the most authoritative and most influential tannaitic sources.

4 Azzan Yadin, Scripture as Logos: Rabbi Ishmael and the Origins of Midrash (Philadel-phia: University of Pennsylvania Press, 2004), 154. See also Azzan Yadin, “Resistance to Midrash? Midrash and Halakhah in the Halakhic Midrashim,” in Current Trends in the Study of Midrash (ed. C. Bakhos; Leiden: Brill, 2006), 35–58.

5 The above-quoted conclusion from Scripture as Logos was preliminary, based only on a number of passages that thematize the relationship between Scripture and extra-scriptural tradition, with no analysis of the Sifra’s hermeneutic practices.

6 For a discussion of the constitutive parts of the Sifra, see Menahem Kahana, “The Ha-lakhic Midrashim” in The Literature of the Sages (ed. S. Safrai et al; Assen: Van Gorcum, 2006), 2.5–100.

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More substantively, by focusing on the Mishnah and the Sifra, I hope to call into question the widely accepted view that the key division within tannaitic literature is one of genre, with the apodictic (Mishnah and Tosefta) on one side and the midrashic (the Midreshei Halakhah) on the other. I consider this division problematic, as the generic unity of the tannaitic midrashim masks a profound difference in the understanding of Scripture, readership, and the interpretive process within these sources, a difference that largely corresponds to the division into the Rabbi Ishmael and Rabbi Aqiva midrashim.7 At least as far as the role of midrash and its relation to halakhot are concerned, the Sifra is much more in line with the Mishnah than with the Rabbi Ishmael midrashim, as both the Sifra and the Mishnah are substantively in agreement with J. N. Epstein’s assertion that “While scriptural prooftexts are provided for halakhah, one does not derive or in-novate legal traditions on the basis of Scripture.”8

I. Rabbi Aqiva in the Mishnah: Recipient and Defender of Tradition

Though tractates vary with regard to their use of scriptural prooftexts, the Mishnah as a whole contains relatively little legal midrash, presenting legal decisions as apodictic dicta. This tendency is reflected in the figure of Rabbi Aqiva, who does engage in midrash,9 but is represented first and foremost as a tradent of legal teachings not anchored in Scripture. Rabbi Aqiva’s practical commitment to halakhot is thematized in m. Keritot 3:7–10, a series of mishnaiyot in which Rabbi Aqiva poses questions to his teachers (Rabban Gamliel and Rabbi Yehoshua in mishnaiyot 7–9, Rabbi Eliezer in mishnah 10) regarding a range of transgressions committed during a spell of forgetfulness, and the purity status of a limb of a dead animal. In each case they say lo’ shama‘nu, they “have not heard,” or, in Danby’s precise

7 See Yadin, Scipture as Logos, 142–154.8 J. N. Epstein, Prolegomena to Tannaitic Literature (Tel Aviv and Jerusalem: Dvir and

Magnes Press, 1957) (Hebrew) 511. Epstein’s view was vigorously defended by E. E. Ur-bach, “The Derashah as the Basis for Halakhah and the Problem of the Scribes” in idem, The World of the Sages (Jerusalem: Magnes, 1988), 50–66. See also Daniel Schwartz, “Hillel and Scripture: From Authority to Exegesis,” in Hillel and Jesus: Comparative Studies of Two Major Religious Leaders, edited by James Charlesworth and Lorn Johns (Minneapolis: Fortress, 1997), 335–62.

9 Among the relevant passage are m. Yebamot 12:3 (Rabbi Aqiva disputes with Rabbi Eliezer regarding the ceremony that releases a potential husband from levirate marriage, with the two offering competing interpretations of Deuteronomy 25:9); m. Keritot 2:5 (Rabbi Aqiva the status of the servant woman who must bring an offering is learned from Leviticus 19:20); m. Makkot 1:7 (Rabbi Aqiva interprets the witness injunctions of Deuteronomy 17:6); m. Shabbat 9:1 (an idol conveys uncleanness by carrying, learned by Isaiah 30:22); m. Sanhedrin 10:4 (people executed on the pilgrimage holidays, learned by Deuteronomy 17:13); m. Peah 7:7 for a midrashic dispute involving the status of a vineyard containing fallen or defective clusters.

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translation, “we have heard no tradition about this.”10 When such traditions are known, Rabbi Aqiva transmits them on the authority of his master, as when he cites a teaching concerning cucumber-gathering sorcerers “in the name of Rabbi Yehoshua” (m. Sanhedrin 7:11). Rabbi Aqiva’s willing obe-dience to the authority of Rabbi Yehoshua’s traditions is also emphasized in m. Ta‘anit 4:4, which opens with Rabbi Aqiva’s statement regarding the cultic procedures in the temple on three occasions: when the Hallel was ap-pointed, when an additional offering was made, and when wood offerings were made. However, Ben Azzai responds by stating that Rabbi Yehoshua had different traditions regarding these days. Upon hearing Ben Azzai’s correction, Rabbi Aqiva does not challenge either the attribution or the tradition itself, but rather changes his teaching to reflect that of his master, and the mishnah concludes: “Rabbi Aqiva retraced and taught according to Ben Azzai.”11 In a passage I will discuss more fully below, Rabbi Aqiva states explicitly that “The prohibition concerning wild animals and birds is not derived from Scripture” (m. Ḥulin 8:4), but rather, presumably, from extra-scriptural halakhah. In a number of passages, Rabbi Aqiva is referred to as the originator of a full-fledged oral tradition:

These are the kinsmen [that are not qualified to be witnesses or judges]: a suitor’s father, brother, father’s brother, mother’s brother [etc.]. Rabbi Yose said: Such was the Mishnah of Rabbi Aqiva (zu mishnat rabbi Aqiva), but in the first Mishnah also a suitor’s uncle, first cousin, and all that are qualified to be his heirs. (m. San 3:4)12

Rabbi Aqiva, then, is clearly a tradent of halakhah13 and there may have cir-culated a collection of halakhot associated with him. However, in addition to being an exemplary tradent of halakhot, Rabbi Aqiva is also portrayed

10 English translations of the Mishnah are based on Herbert Danby (Oxford: Oxford University Press, 1933). See the discussion of this passage in M. Kahana, “On the Fashioning and Aims of the Mishnaic Controversy,” 71–76, who highlights the shift in Rabbi Aqiva’s role as the series progresses, from merely posing the questions, through responding to Rabbi Yehushua’s answer, and finally arguing forcefully with Rabbi Eliezer.

11 The same type of exchange, with Rabbi Aqiva relinquishing his initial position and adopting that of his interlocutor, occurs in m. Ḥulin 4:2 (adopting the position of Rabbi Yes-hbav, citing the position of Rabbi Yehushua), and several times in the Tosefta as well: t. Zavim 1:6 (the position of Rabbi Shimon); t. Uqtzin 3:2 (the position of Rabbi Yehudah). Only in the first of these, however, is Rabbi Aqiva’s reversal due to the authority of the tradent of the tradition. In both m. Ta‘anit 4:4 and t. Ḥulin 2:9 the tradent in question is Rabbi Yehoshua, and these sources should be added to Rosen-Zvi’s list of passages in which Rabbi Aqiva sup-ports his master’s halakhot (“Who Will Uncover the Dust from Your Eyes,” 125, n. 147).

12 The phrase, “the Mishnah of Rabbi Aqiva,” also appears in t. Ma‘aser Sheni 2:1 and 2:12. Lieberman (Tosefta ki-feshuta: Zera‘im, 731) offers a minimalist understanding of this phrase, as though referring to a specific halakhah, but see Albeck, Introduction to the Mishnah (Jerusalem: Mossad Bialik, 1967), 74–75.

13 Unless otherwise specified, “halakhah” refers specifically to extra-scriptural tradition (as opposed to midrash or din), not to the general system of rabbinic law.

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as their defender. Here, for example, Rabbi Tarfon hears a tradition that he is sure has been transmitted erroneously:

Any movable object conveys impurity if it is as thick as an ox-goad. Rabbi Tarfon said: May I bury my children if this is not a perverted halakhah which the hearer heard wrongly: when a husbandman passed by [a tomb] with the ox-goad over his shoulder and the one end of it overshadowed the tomb, they declare him impure by virtue of the law of the vessels which overshadow a corpse. Rabbi Aqiva said: I will amend [this halakhah] so that the words of the Sages shall be sustained. Any mov-able object conveys uncleanness to him that carries the object if it is as thick as an ox-goad; and the object conveys the uncleanness to itself whatsoever its thickness, but to other men and vessels only if it is one handbreadth wide. (m. Ohalot 16:1)

Our mishnah begins with an anonymous statement regarding the size re-quired of a movable object in order that it convey impurity. Rabbi Tarfon, however, disputes the legitimacy of this tradition, arguing that it was per-verted in the course of transmission. The correct halakhah, according to Rabbi Tarfon, indeed refers to the ox-goad but in the context of its breadth, inasmuch as a herdsman who carries one over his shoulder creates a canopy of sorts, an ohel, and is thus susceptible to the impurity of a tomb he passes by, even if he has not touched it. There are, then, two competing oral tradi-tions that refer to the ox-goad, and Rabbi Tarfon clearly considers the two to be mutually exclusive – his is the correct tradition, and the anonymous statement that opens our mishnah should have been identical with his, but was perverted in the course of transmission: “the hearer heard wrong.” This possibility, however, does not sit well with Rabbi Aqiva. True, Rabbi Tarfon is himself citing an oral tradition and in no way undermining the legitimacy of extra-scriptural halakhah, but he is asserting that a particular tradition ought be rejected outright, a possibility that spurs Rabbi Aqiva to action. He will “amend [this halakhah] so that the words of the sages shall be sus-tained.” By proposing a third legal statement that incorporates elements of both the anonymous tradition and Rabbi Tarfon’s tradition, Rabbi Aqiva is able to legitimate both. The anonymous tradition rightly states that an ob-ject of the breadth of an ox-goad convey impurity, but Rabbi Tarfon clari-fies the meaning of this statement by specifying that this occurs in the way described in his tradition (carried and not merely touched). Interestingly, Rabbi Aqiva’s statement is not anchored in tradition, but in his ingenuity as an interpreter of traditions (not Scripture), i. e., in his ability to reconcile and thus “amend” the received tradition.

A similar dynamic is apparent in both m. Pesaḥim 9:6 and m. Yebamot 8:4.14 In the former, Rabbi Yehoshua cites conflicting oral traditions regard-

14 Referred to in Rosen-Zvi, “Who Will Uncover the Dust from Your Eyes,” 125, n. 147 (the mishnah in Pesaḥim is erroneously cited as 6.6).

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ing a substitute for the Paschal offering, and Rabbi Aqiva offers to resolve the contradiction: “I will explain it: if a Passover offering was found before the slaughtering of a substitute, it must be left to pasture … but if it was found after the slaughtering of the substitute … it can be offered as a well-being offering (shelamim).” In the latter, the pattern repeats with Rabbi Yehoshua citing conflicting halakhot as to whether a eunuch submits to the ḥalitzah ceremony (which releases a family member of the deceased from the obligation of levirate marriage).

In the preceding Mishnah passages Rabbi Aqiva harnesses his intellec-tual acuity to the task of establishing or defending the meaning of received halakhot. Interestingly, Rabbi Aqiva also employs scriptural interpretation in the service of oral tradition, the most explicit example being the famous discussion of the impurity of the third loaf:

“[And if any of [the unclean dead creatures] falls into an earthen vessel] everything inside it shall be unclean (יטמא)” (Lev 11:33): Rabbi Aqiva says: It does not say “is unclean” (טמא) but “shall be unclean” (יטמא) meaning that it transmits uncleanness to other objects, indicating that the loaf of bread that has second level uncleanness imparts third level uncleanness to other objects. Rabbi Yehoshua said: Who will remove the earth from your eyes, Rabbi Yohanan ben Zakkai, for you used to say that a future generation will declare the third level loaf clean since it is not scriptural – but your disciple Rabbi Aqiva adduced a scriptural prooftext for its impurity, as it is written “everything inside it shall be unclean (יטמא)” (m. Sotah 5:2).

As noted above, I have discussed this passage in an earlier study, and it has received a much more detailed analysis in Yishai Rosen-Zvi’s article, so there is no need to rehearse the legal issues at length.15 The critical point for our purposes is that, according to Rabbi Yehoshua, his teacher, Rabban Yohanan ben Zakkai, feared that a purity law will be forgotten or ignored by future generations since it “is not scriptural.” Rabbi Aqiva, however, is able to in-terpret Leviticus 11:33 so as to support this ruling and thus posthumously allay Rabbi Yohanan Ben Zakkai’s fears. Rabbi Yehoshua’s dramatic address of his deceased teacher – “Who will remove the earth from your eyes, Rabbi Yohanan ben Zakkai, for you used to say that a future generation will declare the third level loaf clean since it is not scriptural” – states in no uncertain terms that Rabbi Aqiva’s midrash did not establish the ruling in question; it was authoritative to the previous generations of sages who knew nothing of his interpretation. At least with regard to the impurity laws in question, extra-scriptural tradition enjoys priority (both chronological and axiologi-cal) over scriptural interpretation. Whether midrash serves to buttress the authority of these halakhot or perhaps as an aide-memoire is unclear, but in

15 Yadin, “Resistance to Midrash?” 54; and more fully, Rosen-Zvi, “Who Will Uncover the Dust From Your Eyes,” 96–101.

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either case it is for his service to these extra-scriptural traditions that Rabbi Aqiva receives such praise. The importance of m. Sotah 5:2 lies in its explicit characterization of Rabbi Aqiva’s interpretive prowess. At the very least, the testimony of this mishnah indicates that scriptural interpretation need not stand in opposition to (or competition with) extra-scriptural traditions; legal midrash is, at least in certain instances, the maidservant of received halakhot and so it is in principle possible that the midrashic arguments the Mishnah preserves in the name of Rabbi Aqiva are to be understood along these lines, even when their relationship with halakhah is not enunciated.

Before taking leave of the Mishnah and turning to the Sifra, let me address a possible objection, namely, that it is not altogether surprising that a legal codex that accords primacy to extra-scriptural tradition and marginalizes midrash would represent Rabbi Aqiva in precisely these terms. After all, the Mishnah is indeed divorced from Scripture on many levels: its structure is topical, rather than following the biblical order of presentation; the vast majority of its rulings are cited (whether attributed or anonymous) without reference to Scripture; and it contains a number of references to the ideol-ogy of Oral Law. The most famous of these is the scholarly genealogy in the first chapter of m. Avot, but also Rabbi Aqiva’s assertion, “Received tradition is a fence around Torah” (m. Avot 3:14), and the characterization of the sage in terms of extra-scriptural tradition as one who “asks accord-ing to halakha … and of what he has heard no tradition he says ‘I have not heard’” (m. Avot 5:7). To this a number of responses should be made. First, the existence of such a collection is not preordained; it is a striking cultural fact in its own right, so while the representation of Rabbi Aqiva is consist-ent with the Mishnah’s broader ideology, this fact does not constitute an explanation, merely additional evidence for the primacy of extra-scriptural traditions. Second, Rabbi Aqiva and his students form the backbone of the Mishnah, so it is not surprising that he is represented as the exemplar of the Mishnah’s preference for extra-scriptural tradition over midrash. Finally, the question of the Mishna’s genre is clearly not dispositive since the Sifra too endorses a similar view.

II. Rabbi Aqiva in the Sifra: Explicate Scripture and Accord with Received Tradition

It should be stated at the outset that there is something counter-intuitive about a work of midrash favoring extra-scriptural tradition over scriptural interpretation. Be that as it may, the Sifra exhibits a number of characteris-tics that bespeak a strong affinity for precisely this view. For one thing, the Sifra is not always engaged in midrash, as it regularly transmits legal rulings that are not anchored in Scripture, at times even employing the characteris-

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tic terminology of extra-scriptural transmission, e. g., when legal views are transmitted “in the name of” (mishem)16 a sage:17

1. Rabbi Elazar says in the name of Rabbi Yose: If one desecrated (piggel) in matters performed outside [the Temple]… (Tzav pereq 13.6. Weiss 37a; TK, 164)18

2. Rabbi Shimon ben Yehudah says in the name of Rabbi Shimon: every bald patch (neteq) that is pure for one hour cannot receive impurity forever-more. (Tazri‘a Nega‘im pereq 9.15. Weiss 66b; TK, 475)

3. Rabbi Yehudah said in the name of Rabbi Elazar: [The priest] stands in his place and purifies all (Aḥarei Mot pereq 4.10. Weiss 81b; TK, 347)19

Similarly, the Sifra speaks of the “testimony” of sages, a technical term for the transmission of halakhot:

1. Rabbi Zadoq testified that the brine of impure locust is pure. (Shemini pereq 5.10. Weiss 51a; TK, 212)

2. This is the testimony Hezekiah the father of ’Aqesh bore before Rabban Gamliel, when he said in the name of Rabban Gamliel the Elder: Any earthen vessel that does not have an internal space (tokh), no regard is paid its external space (ahorayim). (Shemini parasha 7.4. Weiss 53b; TK, 224)20

3. Rabbi Yose ben Yoezer of Tzereda testified regarding the liquids of the house of slaughter that they are pure. (Shemini parasha 8.5. Weiss 55a; TK, 230).

Alongside these explicit halakhot, the Sifra also contains many non-mid-rashic statements that either stand alone or, as in the following example, are incorporated into a scriptural discussion:

“[Whatever touches its flesh shall become holy] and if any of its blood is spattered upon a garment, the bespattered part shall be laundered in a holy place” (Lev 6:20): This refers to the blood of a ritually fit animal (keshera) not of a ritually unfit animal (pesula). Rabbi Ya‘akov21 says, if it had a period of ritual fitness (she‘at kosher) and was rendered unfit its blood requires laundering, but one that did not have a period of ritual fitness but was then rendered unfit – its blood does not require laundering.

16 This is consistently the reading of Assemani 66. Later witnesses often have mishum. 17 Note that this term may introduce a midrashic argument as well, e. g., in Nedava pereq

19.4; Ḥova parashah 7.7; Aharei Mot pereq 4.10. 18 Sifra citations are followed by page number to the H. Weiss edition (Sifra: Commentar

zu Leviticus [Vienna: Schlossberg, 1862]) and to the facsimile edition of MS Assemani 66 published by L. Finkelstein (Sifra or Torat Kohanim [New York: JTS, 1956]).

19 See also the tradition attributed to Somchos in the name of Rabbi Meir in ’Emor pereq 8.5

20 This is the reading of MS Assemani 66.21 Thus MS Assemani 66 and the Tosefta parallel. Other manuscripts: “Rabbi Aqiva.”

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Rabbi Shimon says, even if it had a period of ritual fitness but was rendered unfit, its blood does not require laundering. (Tzav pereq 6:1, Weiss 32a–b; TK 143)

The verse in question refers to the purification offering (ḥattat), whose blood is employed as a “ritual detergent”22 that removes impurity from the altar. In so doing, however, the blood absorbs the contamination and itself becomes impure. The first part of this derashah refers to the verse under discussion, identifying the blood as belonging to a ritually fit ani-mal, perhaps on the basis of the pronominal heh (though this is unclear). The sense in which this engagement of the verse is interpretive I leave for another discussion. But even assuming the first part of the passage is some-how interpretive, the second half  – the dispute between Rabbi Ya‘akov and Rabbi Shimon – is clearly not. Neither side makes reference to the verse nor attacks the other on interpretive grounds. The two positions are apodictic statements of law that rest on the authority of the respective sages, couched in precisely the same terms we would expect to find in the Mishnah or Tosefta. Though not the norm, many halakhot are cited throughout the Sifra.

III. The Sifra as Midrash

Though a detailed discussion of the Sifra’s interpretive practices lies beyond the scope of the present essay, it should be noted that even when the Sifra engages Scripture, the precise nature of this engagement is often unclear. Perhaps the most striking derashot in this regard are those that gloss a verse but provide no substantive argument in support of their interpretation. Consider the Sifra’s interpretation of Leviticus 10:12–14:

“Moses spoke to Aaron and to his remaining sons, Eleazar and Ithamar: Take the cereal offering that remains from the Lord’s food gifts and eat it unleavened beside the altar … But the breast of elevation and the thigh of contribution you, and your sons and daughters after you, may eat in any pure place” (Lev 10:12–14): “Breast” this is the breast; “of the elevation” this refers to the elevation of the basket; “thigh” this is the thigh; “of contribution” this is the contribution of the thanksgiving offer-ing. (Shemini pereq 1.9; Weiss 47a; TK 201).

Note how biblical words or phrases are cited and glossed, without discus-sion or justification: A is B; C is D, etc. This is curious, first and foremost in that the Sifra in no way suggests that it is responding to some element in the biblical text – a sharp contrast to the Rabbi Ishmael midrashim, which con-sistently identify some problematic element in the biblical verse (anomalous

22 Jacob Milgrom, Leviticus: A New Translation and Commentary (The Anchor Bible; New York, 1998–2000), 1.254.

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spellings, redundancies, the potential for misinterpretation, etc.) to which the interpreter putatively responds.23

And while these glosses may be merely the visible conclusion of a robust but otherwise invisible interpretive engagement (though I think this is not the case) it is striking that a work of midrash contains a significant number of derashot whose structure excludes discussion of the biblical verse.

The issue takes on added significance once we consider the very different types of interpretation the Sifra attaches to the words of the verse. Leviti-cus distinguishes two offerings that the priests may eat in any sacred place, that is, anywhere within the Tabernacle compound, and not specifically by the altar: “the breast of elevation and the thigh of contribution,” both of which are discussed elsewhere. The breast of elevation (ḥazeh ha-tenufah) is mentioned in Exodus 29:27, in the cultic instructions concerning the Tabernacle’s consecration ritual; in Leviticus 7:30, where it is part of the individual’s well-being offerings (shelamim); and in Leviticus 9:21, as part of the Tabernacle’s consecration, again as an offering of well-being. The thigh of contribution (shoq ha-terumah) appears in conjunction with the breast of elevation in these passages, as it too is part of the consecration ritual (commanded at Exodus 29:27–28, carried out at Leviticus 9:21) and of the well-being offering (Lev 7:32). Both phrases are in the construct form, so the second noun functions adjectivally: ḥazeh ha-tenufah and shoq ha-terumah mean “the breast characterized by the act of elevation” and “the thigh given as a contribution,” respectively.24

The Sifra, however, reads the two nouns as an asyndetic coordination, with each standing as an independent element: ha-tenufah means “the eleva-tion” (in the nominative), rather than “of the elevation (in the genitive). The same approach is adopted for the second phrase, shoq ha-terumah, the thigh of contribution, as the Sifra interprets each term as a free-standing element. Pried from their meaning within the construct state, the second elements of the two phrases are glossed in ways that are by no means self-evident. Ac-cording to the Sifra, “the elevation” (or: “of the elevation,” calling attention to the disparity between the biblical phrase and the Sifra’s reading) refers to the basket, i. e., to the basket of unleavened breads mentioned in Leviticus 8:2 and 8:26 as part of the consecration of the Tabernacle; “of contribution” refers to the thanksgiving offering. In both cases, then, the Sifra expands

23 See Yadin, Scripture as Logos, 48–79. It is no coincidence that Daniel Boyarin’s Intertex-tuality and the Reading of Midrash (Bloomington: Indiana University Press, 1994), the most sophisticated description of rabbinic midrash as a response to biblical gaps or irregularities, grew out of a close engagement with the Mekhilta of Rabbi Ishmael.

24 For the linguistic and historical arguments in favor of this terminology (as opposed to the more common “heave” or “wave offering” for the tenufah and, confusingly, “heave of-fering” for terumah, see Milgrom, Leviticus, 1.461–481.

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the scope of the biblical verse, a move that may be motivated by exegetical considerations. For example, the inclusion of the basket of unleavened bread in the category of sacrificial foods eaten at a distance from the altar may be an attempt to find a place for the basket, which is part of the consecration ritual but the location of its consumption (more accurately: of the consump-tion of its remnants) is not specified. A robust midrashic justification of this connection would connect the word matzot in 10:12 with the absence of sal ha-matzot, “the basket of unleavened bread,” suggesting the latter belongs to the foods that may be eaten elsewhere in the Tabernacle compound. But it is not clear that this is the midrashic process underlying the gloss (one could argue, perhaps more plausibly, that the mention of matzot in v. 12 points to the inclusion of sal ha-matzot), or that there even is such a process.

The picture is much the same in the second gloss, which links “of contri-bution” with the thanksgiving offering. As noted, the thigh of contribution is identified in Leviticus 7:32 with the well-being offerings, and the gloss may be playing on that connection. However, in other passages the thanks-giving offering and the well-being offering are distinct, as when Leviticus 22:21 instructs regarding “whenever any person presents … a well-being offering” and then, in verse 29, “[w]hen you sacrifice a thanksgiving offer-ing …” Moreover, the Mishnah refers to each individually in consecutive mishnayot (m. Zebaḥim 5:6–7).25 Here too, then, the Sifra’s gloss may be based on an interpretation of Scripture, but if it is, the interpretation in question is altogether opaque.

Despite its brevity, the above discussion points to a core difficulty in glossing derashot: their form suggests that they draw new conclusions from the biblical text (e. g., both the basket of unleavened bread and the thanks-giving offering may be consumed anywhere within the Tabernacle com-pound) but they do not state – or even intimate – what in Scripture leads to these conclusions. The same difficulty is evident, albeit in a different form, in the glosses of the first element of the two construct state phrases (the nismakhim or nomina regentes): “‘Breast’ this is the breast … ‘thigh’ this is the thigh.” What is the force of these tautological glosses? The fact that they are tautological does not ipso facto indicate they are not interpretive. In a cultural milieu in which far-reaching interpretation is the norm, an affirma-tion of the plain sense of a word – e. g., by tautology – can count as a forceful argument. A famous example is Freud’s notorious (and evidently defensive) quip that sometimes a cigar is just a cigar, a tautological statement that does interpretive work because the association of the cigar with the phallus is so compelling within the framework of Freudian symbolism. Asserting that “breast” is a breast and “thigh” is a thigh (and recalling that we have left the

25 For a discussion see Milgrom, Leviticus, 2.413.

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realm of Freudian interpretation and returned to levitical offerings) could be meaningful if alternative readings were thereby rejected. But the Sifra does not suggest this is so. Absent a compelling reason to assume the sacrificial cuts in question are other than their plain meaning it is difficult to under-stand what work is performed by the Sifra’s gloss.26

IV. ’ ish ’ish

A related set of difficulties is evident in the Sifra’s interpretation of Leviticus 17, which contains a number of laws governing sacrifice: It is prohibited to spill sacrificial blood other than at the Tent of Meeting (v. 4); when a sacrifice is brought to the Tent of Meeting, the priest is to splash the blood of the ani-mal onto the altar (v. 6); any person who makes a sacrifice (zebaḥ) or a burnt offering (‘olah) elsewhere, shall be cut off from his people (karet) (v. 9). The chapter continues with the following verse, cited with the Sifra’s gloss:

“And if anyone (’ ish ’ ish) [literally: person person] of the house of Israel or of the alien who reside among them ingests any blood …” (Lev 17:10): “Israel” – this is Israel. “Alien” – these are the aliens [= proselytes].27 “Who resides” to include the wives of the aliens. “Among them” to include women and slaves. If so, why is “per-son person” stated? Rabbi Eliezer the son of Shimon says, to include the offspring of an Israelite women from a gentile or from a slave. (Aḥarei Mot parashah 8.1–2. Weiss 84b; TK 363)

The verse prohibits ingesting blood, a prohibition the scope of which the Sifra is determined to expand, even though the verse is inclusive from the outset: “And if anyone of the house of Israel or of the aliens who reside among them ingests any blood.” In its interpretation, the Sifra conjures a series of sub-categories – the wives of the aliens, the women, and the slaves – and links them to discrete elements of the verse. Both the identifi-cation of elements in the verse (again involving the separation of construct phrases) and of the connection between these elements and the halakhic sub-categories, appears to be arbitrary, and in this similar to the derashah discussed immediately above. The focus of the present analysis, however, is on the second part of the derashah, which is motivated by the phrase ’ ish ’ish. Having exhausted the sub-categories to be justified by the verse, the Sifra asks: “If so, why is ’ ish ’ish stated?” – suggesting that the rep-etition (“person, person”) is intrinsically marked. Biblical grammarians will argue that this is not, in fact, a redundancy, rather the repetition of the noun produces a distributive sense. Just as “You shall set aside year

26 It would be wrong to say that such derashot are completely absent from the Rabbi Ishmael midrashim, but they are very rare in the legal sections.

27 The word ger means ‘stranger’ or ‘resident alien’ in Biblical Hebrew, but comes to mean ‘proselyte’ in rabbinic Hebrew, a meaning then retrojected onto the biblical text.

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year (shanah shanah) a tenth part of all the yield …” (Deut 14:22) means “every year,” and “much as she coaxed Joseph day day (yom yom) …” (Gen 39:10) means “every day” – so too “person person” refers to every person.28 But let us take the Sifra at its word and assume it understands ’ ish ’ish as a redundancy that invites the rabbinic reader to include elements not sanctioned by Scripture.

But this assumption – a charitable reading of the Sifra that seeks to make sense of its practices on its own terms – leads to another difficulty, namely, the Sifra’s inconsistent engagement of (putative) hermeneutic markers. For just a few verses before this passage we read:

“If anyone (’ ish ’ ish) of the house of Israel slaughters an ox or sheep or goat in the camp, or does so outside the camp … [bloodguilt shall be imputed to that person]” (Lev 17:3–4): Might it be that one who slaughters the purification offering in the south is liable? Scripture teaches, saying “outside the camp.” Then perhaps [one is not liable] until he slaughters outside all three camps, so whence do we learn of li-ability even while in the Levitical camp? [Scripture] teaches, saying “in the camp.” (Aḥarei Mot parashah 6.3. Weiss 83b; TK, 358)

Leviticus 17:3 introduces the prohibition against non-ritual slaughter, ḥullin, a procedure that was interpreted differently in tannaitic sources. One view, attributed to Rabbi Aqiva, holds that the prohibition is against the non-ritual consumption only of those animals intended for sacrifice; another, associated with Rabbi Ishmael, understands these verses as a much broader prohibition against the consumption of non-ritual meat as such. The Sifra’s interpretation is, as expected, in line with the former. For the question at hand, however, the derashah is more significant for what it does not inter-pret, namely, it does not address – or even acknowledge as hermeneutically meaningful – the repetition ’ ish ’ish. There is similarly no discussion of ’ ish ’ish in Leviticus 22:4, though there the omission is more glaring:

“Any man [’ ish ’ ish] of Aaron’s offspring and he has scale disease or a chronic dis-charge may not eat of the sacred donations until he is pure” (Lev 22:4): “of Aaron’s offspring” – from this I learn only regarding Aaron’s offspring, whence do I learn regarding Aaron himself? [Scripture] teaches, saying “ and he has scale disease or a chronic discharge.” (Emor pereq 4.1; Weiss, 96b; TK 427)

What is so striking about this passage is that the Sifra ignores the repetition of ’ ish ’ish even though the derashah opens with a ribbui, an argument that extends the scope of the biblical verse, this being precisely the function that ’ ish ’ish plays in the other derashot. This inconsistent engagement of ’ ish ’ish – and the same argument could be made for other putative mark-

28 Waltke and O’Connor, An Introduction to Biblical Hebrew Syntax (Winona Lake, Ind.: Eisenbrauns, 1990), 7.2.3. On this phrase in the priestly literature see Milgrom, Leviticus 1.906 and 2.1453.

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ers, e. g., the accusative marker ’et, the word nefesh, and more – goes to the heart of the notion of hermeneutic markedness, which presents midrash as a response to Scripture, and so not initiated by the human reader. It is, of course, possible for readers (or schools) to differ on what counts as a marker, but once established, markers can only be meaningful if they func-tion consistently. If they do not, the specter of arbitrariness reemerges, even if once removed: why does the sage choose to interpret the marker in one instance but not in the other? For the repetition ’ ish ’ish to be midrashically significant, it must be significant in Leviticus 17:10 and in adjacent verses. Since this is not the case, the Sifra’s engagement with Scripture appears to be arbitrary or, at least ambiguous as to what Scriptural elements elicit – and thus legitimate – the rabbinic response.

But the Sifra’s engagement of Scripture involves a second type of am-biguity, this one tied to the relationship between the biblical phrase and the rabbinic legal conclusion to which it corresponds. Consider the Sifra’s discussion of Leviticus 22:17:

“YHWH spoke to Moses, saying … Whenever any person (’ ish ’ ish) from the house of Israel or from the aliens in Israel presents an offering … You shall not present any that has a blemish” (Lev 22:17–20): “Israel” – this is Israel; “Alien” – these are the aliens; “Who resides” – to include the wives of the aliens; “in Israel” – to include women and slaves. If so, why is ’ ish ’ ish stated? To include the gentiles, that they be held accountable on matters of vows and freewill offerings like Israel. (Emor parashah 7.1; Weiss 98a; TK 434)

The verse in question is very similar to Leviticus 17:10, as is the Sifra’s re-sponse. In fact, the glosses are mostly identical (the only difference is that here “in Israel” includes women and slaves; in Leviticus 17:10 it is “among them”). The concluding interpretation of ’ ish ’ish, however, is quite differ-ent as it includes not the children of unions between Israelite women and gentile or slave men but rather gentiles. Indeed, we find a long list of ’ ish ’ish derashot, with little commonality in the conclusions they offer:

– “And if anyone (’ish ’ish ) from among the Children of Israel or any alien who resides among them hunts down an animal or a bird that may be eaten, he shall pour out its blood and cover it with earth” (Lev 17:13). “Israel” these are Israel; “alien” these are the aliens; “who resides” to in-clude the women of aliens; “among them” to include women and slaves. If so why does it say ’ish ’ish ? Since it says “hunts.” From this I know only regarding hunting. Whence do I learn regarding one who purchases, inherits, or receives as a present? [Scripture] teaches saying ’ish ’ish. (Aḥarei Mot pereq 11.1; Weiss 84b; TK 364)

– “When any man (’ish ’ish) has a discharge” (Lev 15:2): … From this I learn only regarding the man (’ish), whence do I include the woman and

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the minor? [Scripture] teaches saying, ’ish ’ish. These are the words of Rabbi Yehuda.29 (pereq zavim parashah 1.1; Weiss 74b; TK 311).

– “If anyone (’ish ’ish) … offers up a burnt offering or a (well-being) of-fering …” (Lev 17:8): … why does [Scripture] state ’ish ’ish? To include two individuals who offered an offering – the words of Rabbi Shimon. (Aḥarei Mot pereq 10.2; Weiss 84a; TK 361)

– “No one (’ish ’ish) shall approach anyone of his own flesh to uncover nakedness” (Lev 18:6): … why does [Scripture] state ’ish ’ish? To include the gentiles, who are warned against sexual transgressions when among Israel. (Aḥarei Mot pereq 13.1; Weiss 85b; TK 370)

– “If any man (’ish ’ish) dishonors his father or his mother, he must be put to death” (Lev 20:9): … From this I learn only regarding the man (’ish), whence do I include the woman? [Scripture] teaches saying, ’ish ’ish. (Qedoshim pereq 9.8; Weiss 92a; TK 411)

As this list demonstrates, ’ ish ’ish “includes” quite a diverse set of elements. In some cases they are discrete groups such as “the gentiles” or “women” or combinations of groups, e. g., “women and minors”; in other cases, they represent very specific legal scenarios, such as individuals who receive or purchase an edible animal or bird rather than hunting it. All these pas-sages are, of course, further examples of the Sifra’s tendency to juxtapose scriptural elements (here ’ ish ’ish) and legal conclusions without justifica-tion, but the problem is more intractable here since the same hermeneutic marker (sometimes in almost identical derashot) yields different conclu-sions. Taken on its own, then, any of these glosses might be the result of an unstated interpretive process that the modern reader may or may not be able to recover. But what interpretive process could produce such a disparate collection of conclusions from the same ’ ish ’ish? This is not a matter of modern incredulity, but of the structural constraints that attend interpreta-tion as such. Setting aside the question of the plausibility of any one of these readings, it is extremely unlikely that the same interpretive process that underlies the movement from ’ ish ’ish to “one who purchases, inherits, or receives [a bird] as a present,” also underlies the movement from ’ ish ’ish to “the woman,” and “the woman and the minor,” and “the gentiles, who are warned against sexual transgressions,” and so on.30

29 Thus MS Assemani 66. Other witnesses attribute this saying to Rabbi Ishmael.30 Note that the Rabbi Ishmael offer a more elegant and consistent solution when, in its

discussion of Exodus 21:18, it suggests that women are analogous to men in all matters of torts.

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V. Yekhol and Minayin

The gap between the biblical text and the midrashic conclusion is evident in the Sifra’s most commonly employed interpretive terms, yekhol and minayin. The former is usually understood as the equivalent the Rabbi Ishmael midrashim’s shome‘a ’ani, as both introduce interpretations that are eventually rejected. In fact, however, the two terms perform very different interpretive functions. Shom‘a ’ani regularly introduces interpretations that must be rejected (or qualified) once additional biblical verses, or additional units from the same verse, are taken into account:

“[the Israelites shall slaughter it] at twilight” (Exod 12:6): I might understand this to mean at the morning twilight, but [Scripture] teaches, saying “there alone shall you slaughter the passover sacrifice, in the evening, [at sundown, the time of day when you departed from Egypt]” (Deut 16:6). If it is in the evening, I might understand this to mean after it is already dark, but [Scripture] teaches, saying “at sundown” (Deut 16:6). Perhaps “at sundown” refers to the time of “you shall eat it roasted” (Exod 12:8), but [Scripture] teaches, saying “the time of day when you departed from Egypt.” (Mekhilta Pisḥa 5, p. 17; Lauterbach 1.42)

The question here involves the ambiguity of the term dimdumim, twilight, which can refer to the time the sky grows red at night, or when it does so in the morning. As is its wont, the Mekhilta resolves the question by introduc-ing another verse (Deuteronomy 16:6) that refers explicitly to the evening as the time of sacrifice. The Mekhilta then puts forth a second hypothesis, that the sacrifice may be held night, but the next part of Deuteronomy 16:6 provides an answer to that: the sacrifice is to occur at sundown. This last shome‘a ’ani and its rejection may be a continuation of the “dialogue” between Exodus 12:6 and Deuteronomy 16:6, or perhaps it is both raised and rejected from within Deuteronomy 16:6. It does not matter. Indeed, my point here is that it does not matter, since the Rabbi Ishmael midrashim can reject a shome‘a ’ani hypothesis by introducing a new verse, or by calling to the fore different elements of the same verse. Either way, it is an intertextual dialogue: an interpretation that might be possible if the word or phrase in question were to stand alone, is not ultimately possible.

And while yekhol introduces interpretations that are then rejected, the role Scripture plays in these derashot is quite different:

“And it shall be when he is guilty in any of these matters …” (Lev 5:5): It could be (yekhol) that in imparting impurity to the Temple and its sancta, a transgression pun-ished by extirpation, one is liable for each and every action, but regarding transgres-sions related to hearing a statement regarding a public adjuration or the utterance of an oath – transgressions not punished by extirpation – perhaps one is liable only for one action. Scripture teaches, saying “in any,” asserting liability for each and every action. It could be (yekhol) that concerning the Temple purity on its own and the purity of the sancta on their own, even in cases of a single bout of forgetfulness, one

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is liable only for one, but [Scripture] teaches saying, “in any,” asserting liability for each and every action. (Ḥova pereq 14.2–3; Weiss 23b)

The interpretive dynamic of this derashah is completely different from that of shome‘a ’ani, first and foremost, because the rejection of the interpreta-tions introduced by yekhol is not due to the introduction of additional information found in another verse. Rather, the Sifra anchors the rejection in a single scriptural element located in the verse under discussion: the fact that Leviticus states one is guilty “in any of these matters” is proof that the legal scenarios introduced by yekhol are incorrect. That is, shome‘a ’ani offers an interpretation of one verse but reject the interpretation in light of another, while yekhol does not introduce a second scriptural element.31 This is not a matter of stylistic difference. The former follows a certain hermeneutic logic: an interpretation appears to be viable but, seen in light of the second verse (or phrase) adduced, must be rejected. This logic does not hold for the Sifra, which rejects the yekhol interpretation without recourse to a second textual element, solely on the evidence of word or phrase under discussion. But if the incorrectness of the interpretation is evident from the verse – why propose it in the first place? Unlike shome‘a ’ani, which introduces a plausible reading, the Sifra’s yekhol introduces a slew of legal scenarios whose connection to the verse is unclear. Nor, for that matter, is any interpretive argument made as to why “in any of these matters” in Le-viticus 5:5 refers specifically at the case of a public adjuration or of distinct oaths involving the temple and its sancta, and so forth. In short, neither the interpretation introduced by yekhol nor its rejection appears to be deeply rooted in Scripture.

The same disconnectedness from the verse is apparent in the many de-rashot (some 500 in the Sifra) that begin with minayin, “whence.” Struc-turally, minayin derashot are the mirror image of yekhol: where yekhol introduces legal rulings that are then rejected, minayin introduces rulings that will ultimately be accepted. For example:

“[If any of the flesh of his sacrifice of well-being is eaten on the third day] it shall not be acceptable; it shall not count for him who offered it” (Lev 7:18): It could be (yekhol) that “it shall not be acceptable” refers only to a sacrifice made outside its proper time and place, whence do we know (minayin) that it applies to sacrifices made at night, and to those whose blood was spilled, or whose blood trickled beyond the partition of the Tabernacle, or whose blood was not ritually tossed, or whose flesh protruded, or whose blood was collected and tossed by unfit priests, or in the cases of sacrifices whose blood is to be smeared on the lower part of the altar but it was smeared on the upper part, or whose blood is to be smeared on the upper part of the altar but it was smeared on the lower part, or those from within the sanctuary

31 I refer to “scriptural elements” rather than verses because some derashot contrasts phrases that make up part of the same verse. The dynamic is the same in either case.

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offered outside the sanctuary, or those outside the sanctuary offered within the sanc-tuary, and the Paschal offering and the sin offering made without proper intention, [Scripture] teaches saying, “it shall not be acceptable; it shall not count from him who offered it” for the eater (Sifra Tzav pereq 13.3; Weiss 36b; TK 163).

As with yekhol (which opens the derashah), the scope of minayin is lim-ited to the verse under discussion. Here, the Sifra suggests that Leviticus 7:18 refers “only to a sacrifice made outside its proper time and place,” presumably since time is the relevant parameter in the verse (freewill and votive offerings are to be consumed on the day of the sacrifice with the remainder consumed on the morrow), perhaps here understood as a me-tonymy for “time and space.” As with the previous derashah, however, no textual argument is offered for rejecting this restrictive interpretation, which is, after all, a straightforward reading of Leviticus 7:18. Instead, the Sifra asks minayin, “whence do we learn,” regarding a slew of sacrificial missteps, all of which are anchored in the phrase “it shall not count.” The verse is unambiguous, and though “it shall not count” is arguably redun-dant given that it is preceded by “it shall not be acceptable,” how does this redundancy indicate that the phrase prohibits “sacrifices made at night, and those whose blood was spilled, or whose blood trickled beyond the partition of the Tabernacle, or whose blood was not ritually tossed … etc. etc”? The problem is similar to the one we encountered in discussing ’ ish ’ish (how can a single phrase give rise to a variety of legal conclusions) but perhaps more visible here because the conclusions are introduced in a single derashah. Can Leviticus 7:18 be said to address the twelve legal cases cited in the derashah? Unlikely. But more importantly, the Sifra does not appear to be making this claim, since this derashah (and countless derashot like it) does nothing to bridge the gap between the biblical verse and the legal decisions appended to it.

– Surveying the evidence thus far, we find a series of difficulties that arise in the attempt to understand the midrashic practices of this text:

– The Sifra is often obscure regarding the precise scriptural elements that putatively give rise to its interpretation.

– Even when these are explicitly specified, the Sifra does not engage the marked word or phrase regularly (as when instances of ’ish ’ish do not elicit interpretation).

– The same biblical element can be used to introduce or reject a long list of different legal conclusions.

Overall, the Sifra maintains a tenuous, at times even arbitrary relationship with the biblical text. How, then, are we to make sense of the Sifra as a mi-drashic text? It seems to me the simplest way is to recognize that the Sifra (or at least many parts of the Sifra) is not a midrashic text, if by “midrashic”

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we refer to an interpretive process that takes Scripture as its starting point. It is rather an ex post facto engagement of Scripture, a sustained attempt at finding biblical “hooks” on which to hang already existing halakhot. The Sifra, in other words, accords with the view of Epstein and Urbach regard-ing the relationship between midrash and extra-scriptural halakhot.32 It is a “belated” text, not in the sense put forward by David Stern in which the rab-binic enterprise recognizes its historical belatedness relative to the Bible and must resort to midrash as a substitute for ongoing revelation,33 but rather as valorized belatedness that stems from the secondary status of midrash relative to the more authoritative extra-scriptural halakhot.

The risk in this interpretation is that it may be born of my failure fully grasp the hermeneutic of the Sifra and a concomitant desire to cover over this failure by asserting that there is no hermeneutic to be grasped. This risk, however, is mitigated by two positive arguments. First, many of the conclusions affirmed by the Sifra appear as halakhot in the Mishnah and the Tosefta. Among the derashot discussed thus far:

– Tzav pereq 13.6 (Rabbi Elazar’s statement about one who desecrates by performing Temple functions outside the Temple) has a parallel at t. Zebaḥim 5:5.

– Tazri‘a Nega‘im pereq 9.15 (Rabbi Shimon ben Yehudah’s statement about the bald patch that is pure for one hour) has a parallel at m. Nega‘im 10:8.

– Shemini pereq 5.10 (Rabbi Zadoq’s testimony regarding the brine of locust) has parallels at m. Terumot 10:9, m. Eduyot 7:2, and t. Eduoyot 3:1.

– Shemini parasha 7.4 (Hezekiah the father of ’Aqesh’s testimony regarding earthen vessels with no internal space) has a parallel at m. Kelim 2:3.

– Shemini parasha 8.5 (Rabbi Yose ben Yoezer of Tzereda’s testimony re-garding the liquids of the house of slaughter) has a parallel at m. Eduyot 8:4.

– Tzav pereq 6.1 (discussing Leviticus 6:20; the laundering of the blood depending on whether the animal has had a period of ritual fitness) has a parallel at t. Zebaḥim 10.9.

– Ḥova pereq 14.2–3 (the long list of legal cases introduced by yekhol and decided by Leviticus 5:5, “in any”) assumes a connection between the commandments regarding Temple holiness, public adjurations and the audible utterance of an oath – as asserted in m. Horayot 2:5.

32 See above, n. 8.33 David Stern, Midrash and Theory: Ancient Jewish Exegesis and Contemporary Literary

Studies (Evanston, Ill.: Northwestern University Press, 1996), 32.

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– Tzav pereq 13.3 (the long list of cases introduced by minayin and decided by Leviticus 7:18, “it shall not be acceptable”) introduces elements found in a number of sources, including t. Zebaḥim 8.21 and m. Zebaḥim 9:2.34

Setting the Sifra and the Mishnah/Tosefta sources side by side does not resolve questions about historical priority or modes of transmission, but it does indicate that the Sifra’s interpretations often do link halakhot to bibli-cal verses, very much in keeping with the Mishnah’s description of Rabbi Aqiva’s midrashic practices.

VI. Rabbi Aqiva as Interpreter in the Sifra

The second positive argument in favor of this interpretation is that a number of derashot in the Sifra deal explicitly this the relationship between midrash and halakhah, and invariably represent interpretation as handmaiden to extra-scriptural tradition, a point made repeatedly through the characteri-zation of Rabbi Aqiva as an interpreter. Indeed, the Sifra, like the Mishnah, lauds Rabbi Aqiva precisely for his ability to produce midrashic argu-ments that support existing halakhot, as we see from a number of parallel Mishnah-Sifra derashot, some of which likely originate in the Sifra.

One passage found in both the Mishnah and the Sifra is Rabbi Aqiva’s interpretation of the impurity of the third loaf (Sifra Shemini, parshata 7.12; Weiss 54a; TK 226), discussed at length above. Since in the Sifra it is part of a broader discussion of impurity and in the Mishnah it is part of a chain of mishnaiyot that deal with Rabbi Aqiva’s interpretive approach,35 it stands to reason that the Sifra’s context is the more original. Strikingly, the Sifra con-tains the same conclusion as the Mishnah, Rabbi Yehoshua reassuring his now dead master who “used to say that a future generation will declare the third level loaf clean since it is not scriptural, but … Rabbi Aqiva adduced a scriptural prooftext for its impurity.” In other words, the Sifra lauds Rabbi Aqiva as interpreter for his ability to provide ex post facto biblical support for existing halakhot.

Another possible36 example is found in the Mishnah’s discussion of the marriage prohibitions against the Ammonites and the Moabites, whose men are forbidden from marriage with Israelites for all time, though their women are permitted in marriage. A similar situation holds with the Egyptian and

34 See also the detailed discussion of Tazri‘a pereq 1.1 (Weiss 58a) and its parallel at m. Shabbat 19:5, and of Ḥova parashah 8.5–7 and its parallel at m. Shevuot 4:3, 9–11 in Yadin, “Resistance to Midrash?” 44–48.

35 As argued by Rosen-Zvi, “Who Will Uncover the Dust from Your Eyes?” 36 These passage may or may not be relevant, depending on the nature of the din, i. e.,

the qol va-ḥomer argument under consideration, since there are numerous examples of qol va-ḥomer based on extra-scriptural traditions, alongside those that are based on Scripture.

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the Edomite, whose male and female members are forbidden to Israel in marriage for three generations – thus the anonymous voice of the Mishnah. Rabbi Shimon, however, offers a different view: since in the stricter case of the Ammonites and the Moabites, whose men are eternally forbidden from marrying an Israelite, the women were allowed to marry immediately, does it not stand to reason that the Egyptian and Edomite women also be allowed to marry an Israelite right away? Rabbi Shimon presents his argument, but the other sages are suspicious: If this is halakhah, we receive it; but if it is a logical argument (din), rebuttal is possible” (m. Yebamot 8:3).37 The same statement is attributed to Rabbi Aqiva himself in m. Keritot 3:9, in response to a tradition concerning multiple sacrificial transgressions committed dur-ing a single bout of forgetfulness,38 and appears in the Sifra as well (Ḥova pereq 1.12; Weiss 16b; TK 71 [in the margins]).

Finally, consider a striking passage about the relationship between mid-rash and extra-scriptural tradition, one that appears only in the Mishnah but employs the midrashic techniques of the Sifra:

Rabbi Aqiva says: The prohibition concerning wild animals and birds is not derived from Scripture, for three times it is written “You shall not boil a kid in its mother’s milk” (Exod 23:19; 34:26; Deut 14:21), thereby excluding [lehotzi’] wild animals and birds and unclean beasts. (m. Ḥulin 8:4)

This is an extraordinary passage, first because it is rare for a biblical repeti-tion to function as a mi‘ut, an excluding argument.39 More importantly, mi‘ut arguments indicate that an element or elements that might have be-longed to some legal or ritual category in fact do not. For example, the Sifra counts “it” (or “it is”) as a mi‘ut,40 especially when it appears as part of an apparently superfluous restatement of the topic addressed in a biblical passage, as when “(You shall add frankincense on it;) it is (a meal offering [minḥa hi’])” (Lev 2:15) serves “to exclude the two loaves of bread that do not require either oil or frankincense” (Vayiqra pereq 15.5; Weiss 13a; TK 55). In a normal mi‘ut argument, then, the phrase “excluding wild animals and birds and unclean beasts” would mean that these sub-categories are not subject to the biblical prohibition, that is, can be cooked in milk. But this is not Rabbi Aqiva’s argument at all. Rather, the repetition excludes these

37 Rabbi Shimon’s response further corroborates the priority of received tradition: “Not so [i. e., it is not a logical argument], but I declare an oral tradition [halakhah].”

38 As noted, Kahana discussed these mishnayot in “On the Fashioning and Aims of the Mishnaic Controversy,” 71–76.

39 Perhaps the excluding force of the derashah derives from the sequence of repetitions, akin to the rabbinic rule that a ribbui that follows a ribbui serves as a mi‘ut. However, this rule is applied to ribbuim that occur within a single verse or passage, not over the span of different biblical books.

40 Shemini pereq 1.5 (Weiss 47a; TK 200)

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sub-categories from the realm of biblical prohibition altogether: “The pro-hibition concerning wild animals and birds is not derived from Scripture.” The prohibition stands, but is not scriptural. According to Rabbi Aqiva, the biblical repetition of the prohibition paves the way for the introduction of non-biblical law; Scripture contracts itself, as it were, vacating space for the introduction of halakhot.

Alongside these derashot, there are a number of Sifra passages not attested in the Mishnah that represent Rabbi Aqiva’s exegesis as providing support for existing halakhot:

A. Sifra Vayiqra, parshata 4.5 (Weiss 6a; TK 21)

The first involves a debate between Rabbi Aqiva and Rabbi Tarfon41 on the proper understanding of Leviticus 1:5, “[The offerer] shall slaughter the bull before the Lord; and Aaron’s sons, the priests, shall offer the blood, dashing the blood against all sides of the altar which is at the entrance of the Tent of Meeting.” This is the first reference in Leviticus to the blood manipulation of the offering, a manipulation that could involve sprinkling (hizah; e. g. Lev. 4:6) or daubing (natan; e. g., Lev 4:7), but here requires dashing (zaraq). Our verse leaves out one step, the collection of the blood, a step the Sifra provides by means of a gloss: “‘[the priests] shall offer’ – this refers to the collection of the blood.” Rabbi Aqiva then asks: “And whence do we learn (minayin) that the collection of the blood cannot be performed except by a ritually fit (kasher) priest, wearing the sacerdotal vestments (kli sharet)? For it speaks here of priestly duties and there of priestly duties. Just as the priestly duties spoken there involve a ritually fit priest wearing the sacerdotal vestments, so too the priestly duties spoken here involve a ritually fit priest wearing the sacerdotal vestments.” Rabbi Aqiva, through gezerah shavah (an argument by analogy), argues that since “there,” that is, in another verse, the priestly duties are assigned explicitly to priests that are ritually fit wearing the sacerdotal vestments, the same criteria apply to Leviticus 1:5 as well. Rabbi Aqiva does not cite the source for the analogy (later commentators have identified Numbers 3:3 as the implied verse42) though its identity is less important for our purposes than Rabbi Tarfon’s response:

Rabbi Tarfon said to him: Aqiva, how much longer will you pile up [verses]43 against us. May I lose my sons if I did not hear a clear distinction between the collection of the blood and its dashing, but I cannot explain it.

41 See my discussion in Scripture as Logos, 151–152.42 See, for example, Rabbenu Hillel ad loc.43 “Verses,” ha-ketuvim, is not attested in Assemani 66 and may be a late addition.

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What we have here is an argument about temple procedure: Rabbi Tarfon rejects Rabbi Aqiva’s argument since collecting and dashing are substan-tively different matters and thus not suitable for the kind of analogy re-quired by gezerah shavah. But there is more at stake, since Rabbi Tarfon’s response hints at a tension between two sources of authority: Rabbi Tarfon has heard – that is, he has received an extra-scriptural, oral tradition – re-garding a distinction between the collection and the dashing of the blood, while disparaging Rabbi Aqiva’s midrash, “how much longer will you pile up verses against us.”

Rabbi Aqiva, it should be noted, does not call into question the assump-tions that underlie Rabbi Tarfon’s attack by arguing that Scripture is the ultimate source of rabbinic authority and thus trumps any non-scriptural challenge. Rabbi Aqiva accepts Rabbi Tarfon’s scolding, and responds with the deferential “allow me to say before you a matter that you have taught me,” followed by the difference between the collection of the blood (where the priest’s intent is not constitutive) and the dashing (where it is). The legal upshot of this is that the blood of an animal ritually unfit for sacrifice may be collected with the intent of offering the animal as a sacrifice without the act counting as a transgression, but dashing with such an intent does so count. More importantly, Rabbi Aqiva demonstrates that his midrashic argument does not conflict with Rabbi Tarfon’s received tradition – there is a difference between the collection and the dashing of the blood but not one that invalidates Rabbi Aqiva’s analogy – the implication being that if the textual analysis did contradict the extra-scriptural tradition, it would have to be discarded. All of which paves the way for Rabbi Tarfon’s concluding statement:

Rabbi Tarfon said to him: May I lose my sons! You have not swerved to the right or the left. It was I who received the oral tradition but was unable to explain while you explicate [doresh] and agree with the oral tradition. Indeed, to depart from you is to depart from life itself.

The entire narrative has built toward this celebration of Rabbi Aqiva’s midrashic prowess. Rabbi Tarfon, the venerable repository of Temple tradi-tions, has been completely swayed, shifting from acrimonious criticism to superlative praise. But what precisely is being celebrated? Contrary to Me-nahem Fisch’s assertion that the story conveys a “strong antitraditionalist bias,”44 the passage is, almost in a technical sense, traditionalist to the core. For Rabbi Tarfon celebrates Rabbi Aqiva’s ability to interpret Scripture in a way that accords with – i. e. does not contradict – the received tradition. There is also a stronger sense in which the derashah accords with tradition.

44 Menachem Fisch, Rational Rabbis: Science and Talmudic Culture (Bloomington and Indianapolis: Indiana University Press, 1997), 106.

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The challenge Rabbi Tarfon issues to Rabbi Aqiva’s derashah is based on a vague recollection of a distinction between the collection and the dashing of blood. Rabbi Aqiva’s response does not involve his correct recollection of the halakhah, but rather proposes an interpretation that helps clarify a halakhah that had been partially forgotten, and thus preserve the oral tradition. Rabbi Aqiva’s interpretive genius is celebrated for its service to extra-scriptural tradition: “You explicate and agree with the oral tradition. Indeed, to depart from you is to depart from life itself.”

B. Sifra to Leviticus 7:12

“If he offers it for thanksgiving, he shall offer together with the sacrifice of thanks-giving unleavened cakes with oil mixed in, unleavened wafers spread with oil” (Lev 7:12): Rabbi Aqiva said: if it said ‘with oil’ once I would say it were like all offerings with regard to the log, but when it says ‘with oil’ [a second time] it forms a ribbui [an expanding argument] and a ribbui that follows another ribbui indicates a limita-tion, so it limited this case to half a log … Rabbi Elazar ben Azariah said to Rabbi Aqiva, even if you argue that ‘with oil’ limits or ‘with oil’ expands from morning until night – I won’t accept your argument. Rather a half log of oil for thanksgiving offerings … is [established by] halakhah from Moses at Sinai (Sifra Tzav pereq 11.4, 6; Weiss 34b).

I have discussed this passage in an earlier study,45 where I emphasized that Rabbi Aqiva and Rabbi Elazar ben Azariah are in complete agreement with regard to the Temple procedure under discussion – both agree that the thanksgiving offering requires one half of a log (a rabbinic measure of volume) of oil. The dispute hinges on the fact that Rabbi Aqiva associates this rule with Scripture, while Rabbi Elazar ben Azariah holds it to be al-ready established by extra-scriptural tradition, so the midrashic argument is unwarranted. It is possible that Rabbi Aqiva is unaware of the halakhah le-moshe mi-sinai46 status of the half log, in which case Rabbi Elazar is first and foremost informing him that this is the case. But Rabbi Elazar ben Azariah’s anger suggests that Rabbi Aqiva knows full well that the conclusion already exists and is trying to provide an ex post facto anchor for it in Scripture (as in the case of the third loaf), and Rabbi Elazar ben Azariah is having none of it: “even if you argue that ‘with oil’ limits or ‘with oil’ expands from morning until night – I won’t accept your argument!”

All these passages thematize Rabbi Aqiva’s role as interpreter, working under the assumption that halakhot enjoy primacy over midrash and are supported by it. In other words, Rabbi Aqiva the interpreter is represented

45 “Resistance to Midrash?” 56–57.46 On this term in tannaitic sources see Christine Hayes, “Halakhah le-Moshe mi-Sinai in

Rabbinic Sources: A Methodological Case Study,” The Synoptic Problem in Rabbinic Litera-ture (ed. S. J. D. Cohen; Providence, R. I.: Brown Judaic Studies, 2000), 61–117.

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in the Sifra much in the same way as in the Mishnah; the genre difference is of no consequence here, as the Sifra, despite its midrashic form, is no less committed to halakhot than the Mishnah.

All of which brings us back to the interpretive practices of the Sifra, as they find expression in terms such as ribbui, mi‘ut, yekhol, and minayin and to the fact that they may reflect Rabbi Aqiva’s commitment to halakhah no less than his spirited defenses of the sages’ dicta in the Mishnah, or his tradition-affirming disputes with Rabbi Tarfon. Needless to say, the Sifra does not offer meta-interpretive commentary to every midrash it offers, so there is no way to establish the Sifra’s view(s) with absolute certainty. The textual evidence, however, is fairly one sided: the Sifra cites rulings in the name of sages with no scriptural basis, refers explicitly to certain rabbinic laws having no scriptural basis, is generally disinterested in a consistent engagement of biblical “cues,” links radically different conclusions to the same biblical word or phrase, uses hermeneutic canons that at times do little more than introduce laundry lists of halakhot, and lionizes Rabbi Aqiva for his midrashic support of halakhot. Occam’s Razor firmly in hand, it appears the simplest conclusion is that the Sifra lauds Rabbi Aqiva because of his ability to anchor halakhot in Scripture.47

Before turning to the post-tannaitic sources, it is important to emphasize that I am not arguing that midrash functions as a support to halakhot in rabbinic or even tannaitic literature as a whole. As I have argued at length elsewhere, the midrashim associated with Rabbi Ishmael do not share this view.48 To the contrary, they exhibit a hermeneutic that is strongly focused on Scripture and maintain an ambivalent relationship with extra-scriptural authority.49 This point deserves emphasis for at least two reasons. First, it

47 This does not mean that Rabbi Aqiva’s midrash never innovates. As Yishai Rosen-Zvi notes (personal communication) Menahem Kahana (Sifre Zuta on Deuteronomy: Citations from a New Tannaitic Midrash [Jerusalem: Magnes, 2002], 367–374) cites a number of in-novative Rabbi Aqiva midrashim. Still, it remains the case that the Sifra lauds Rabbi Aqiva for his “conservative” tendencies.

48 See Scripture as Logos, 142–154.49 David Henschke’s (Festival Joy in Tannaitic Discourse [Jerusalem: Magnes, 2007])

critique of my view regarding Rabbi Ishmael’s limiting of the role of extra-scriptural ha-lakhot is based, in part, on the meaning of Sifre Deuteronomy 122 (“three places halakhah circumvents Scripture”). According to Henskhe, the derashah in question does not refer to legal decisions that are merely not anchored in Scripture, but rather to those that are incompatible with Scripture, “as is clear from the cases cited” (וכמפורש בדוגמאות). But the cases reveal nothing of the sort. Deuteronomy 15:17 specifies that the ear of the slave is to be pierced with an awl, but the halakhah states it may be done with any instrument; Le-viticus 17:13 states “he shall pour out its blood and cover it with earth” (Lev 17:13) while the halakhah says, with anything that grows plants (and not only earth); Deuteronomy 24:1 states that “he writes her a document of divorce” while the halakhah says, [he may write] on anything that was separated from the ground (and not only on a document).

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highlights the difficulty in trying to assign tannaitic literature a single theo-logical voice – if the status of extra-scriptural halakhah and of Scripture are matters of deep controversy, the rifts within these sources run deep indeed. On some level, this should not come as a surprise, as we are dealing with what is still a largely inchoate community, in a time of extreme social and religious change, putting forward unprecedented claims to authority. Despite all this, there has been a strong tendency in academic circles (qol va-ḥomer more traditional scholars) to speak of a discrete and coherent tannaitic worldview. A second, related issue is the prevalent tendency to explain developments within tannaitic sources in diachronic terms, as when Urbach speaks of the shift from the practices of the scribes to the sages and beyond,50 and, more than half a century later, Kahana refers to “the shift from rabbinic law based on received traditions to an increasing recourse to logical arguments (din).”51 If I am right about the fundamental differ-ences between the Rabbi Ishmael and Rabbi Aqiva midrashim, many of the changes that have heretofore been understood diachronically, ought (or: ought also) be explained in terms of the synchronic theological and interpre-tive differences within tannaitic sources.

Post-Tannaitic Sources: Rabbi Aqiva, Midrash, and the Site of Revelation

Thus far I have argued that both the Mishnah and the Sifra represent Rabbi Aqiva as an interpreter (primarily of Scripture but also of received tradi-tions) whose primary goal is to support existing halakhot, and that the core midrashic practices of the Sifra indicate it is best understood precisely in those terms – a sustained attempt to link existing halakhot to biblical verses. How, then, do we account for the widely, perhaps universally held view of Rabbi Aqiva as the rabbinic interpreter of Scripture, as the midrashist without equal in rabbinic Judaism?52 Before suggesting an answer to this

I think it is fairly plain to see that the three derashot cited here are expand the scope of the scriptural injunction, in precisely the way the Sifra expands the scope of innumerable verses. They certainly are not “מנוגדות לכתובים” (Henschke’s emphasis) in any particular way. Henschke goes on to state that my argument is opposed to the overall Talmudic tradition (הטיעון … מנוגד … לכלל המסורת התלמודית) and cites a number of passages from the Babylonian Talmud that portray Rabbi Aqiva as an interpreter and Rabbi Ishmael as up-holder of tradition. I touch on this issue later in this essay, but even absent the discussion below: does anyone at this stage in the development of academic rabbinic scholarship still consider (Aramaic!) Bavli dicta evidence for tannaitic views?

50 Urbach, “The Derashah as the Basis for Halakhah and the Problem of the Scribes,” 50–66.

51 M. Kahana, “On the Fashioning and Aims of the Mishnaic Controversy,” 81.52 See A. J. Heschel’s florid but otherwise typical description at the beginning of this paper.

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question, I want to highlight the radical transformation the image of Rabbi Aqiva as interpreter undergoes in later rabbinic sources, through an analysis of two passages, the tale of Moses’ visit to Rabbi Aqiva’s bet midrash, fol-lowed by the story of Rabbi Aqiva’s initiation into scholarship in Avot de Rabbi Natan.

I. Babylonian Talmud Menaḥot 29b

We begin with the famous description of Moses’ visit to Rabbi Aqiva’s bet midrash:

Rabbi Yehudah attributed the following to Rav. When Moses ascended to the heav-ens he found God adorning the letters of the Torah with crowns. He said to Him, “Master of the Universe, on whose account are you delaying [the completion of the Torah]?” He said: “There is a person who will come in several generations named Akiva ben Yosef, and he is going to interpret (lidrosh) from every qotz mountains of halakhot. He [Moses] said to Him: “Show him to me.” He said, “Return.” So Moses went and sat behind the eighth row [in Rabbi Akiva’s bet midrash], and could not understand the discussion. He grew weary. Finally they came to a particular issue and the students said [to Rabbi Akiva]: “Master, how do you know this?” He said to them, “It is halakhah le-moshe mi-sinai.” [Moses’] mind was at ease.

He went before God and said to Him: “Master of the Universe, you have such a person and yet you give the Torah through me?” God said: “Shut up, this is what I deem right.” He said: “You’ve shown me his greatness in Torah, now show me his reward.” He [God] said: “Return.” He went back and saw that they [=the Romans] were raking his [Akiva’s] flesh. He said [to God]: “Such is Torah and such is its re-ward?” God said: Shut up, this is what I deem right.”(b. Menaḥot 29b)

This passage has received a great deal of scholarly attention and will, I am confident, receive much more in the coming years, not least because of Shelomo Naeh’s brilliant philological analysis of the word qotz (which I have left untranslated). Though commonly taken to refer to a scribal flour-ish, Naeh demonstrates that the term likely refers to a section or pericope of the Torah.53 But Naeh’s demonstration refers to the original sense of this phrase, and there are good reasons to hold that this is not its meaning in this passage. The Menaḥot narrative opens with Moses observing God adorning the letters of the Torah with crowns, so we would expect that Rabbi Aqiva’s interpretive brilliance be couched in terms of his ability to interpret the crowns of the Torah. Instead, the terminology shifts from ketarim (crowns) to qotz, for no apparent reason – a fairly clear indication that the redactor is constructing the story from different sources, one of which included the

53 Naeh presented his findings at the Fourteenth Annual Gruss Colloquium in Jewish Studies, held at the University of Pennsylvania, April 29–May 1, 2008, and they are slated to be published in Leshonenu.

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qotz (pericope) praise of Rabbi Aqiva.54 But the same shift also indicates that the redactor is using qotz (against its original meaning) as a gloss for keter, purposely reframing it to mean a jot or scribal flourish – a graphic sign that plays an important role in what I hope to show is Menaḥot’s thor-oughgoing textualization of Rabbi Aqiva’s midrash.

The dramatic setting of the aggadah is the giving of the Torah (the writ-ten Torah, as God’s adorning of the letters makes clear) and it is at the Sinai epiphany that we learn a startling fact: the Torah was composed from the outset with a single interpreter in mind – “There is a person who will come in several generations named Akiva ben Yosef, and he is going to interpret from every qotz mountains of halakhot.” This is the reason Rabbi Aqiva’s interpretation far surpasses Moses’s own understanding, even though the latter is the prophet through whom the Torah was given, a point the Bavli emphasizes both when Moses is relegated to the last row, unable to follow the argument, and when God tacitly admits to Moses that Rabbi Aqiva is, in fact, the master of Torah. Rabbi Aqiva’s greatness, then, is explicitly textual, a function of his status as the reader for whom the Torah was composed.

But reader of what? Part of what is so remarkable about this passage is that Rabbi Aqiva interprets the textual elements that are meaningless and thus uninterpretable. I will discuss the broader significance of this fact below, but for now it is worth noting that these non-semantic elements, crowns or jots, are textual in a way that words are not. They cannot be expressed vocally, which is to say, they cannot be transmitted orally. Taken on its own, it is a stretch to suggest that the inescapably graphic nature of Rabbi Aqiva’s interpreted text is relevant to questions of oral transmission, but in fact the relationship between midrash and halakhah runs through the entire Menaḥot narrative. The statement that Rabbi Aqiva “is going to interpret from every qotz mountains of halakhot,” for instance, is strik-ing because in tannaitic sources halakhot are extra-scriptural traditions: one “receives” or “hears” halakhot, rather than derive them scripturally,55 yet b. Menaḥot describes Rabbi Aqiva as interpreting halakhot. Now, the juxtaposition of doresh and halakhot does appear in one tannaitic source, namely in t. Sanhedrin 11:5:

Rabbi Aqiva says, Rabbi Eliezer interpreted (haya doresh) three hundred halakhot in the matter of “You shall not tolerate a sorceress” (Exod 22:17), but I only learned two matters from him: If two were gathering cucumbers [by sorcery] one gatherer may not be culpable and the other gatherer may be culpable; he that performed the act is culpable, but he that deceived the eyes is not culpable.

54 Naeh discusses this shift at some length.55 This is probably the reason that the parallel in Avot de Rabbi Natan A 25 reads shoneh,

“recite” rather than doresh. See Hans-Jürgen Becker (ed.), Avot de-Rabbi Natan: Synoptische Edition beider Versionen (Tübingen: Mohr Siebeck, 2006), 204–205.

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At first blush, this passage appears to contradict my claim that the juxtaposi-tion of doresh and halakhot in b. Menaḥot 29b is novel: the same activity is attributed to Rabbi Eliezer in the Tosefta. But the matter is not so simple. First, what Rabbi Aqiva learns are halakhot and not derashot  – neither statement concerning the cucumber gatherers refers in any way to Exodus 22:17, and there is no reason to think they derive from it. Moreover, the same teachings appear as halakhot in the Mishnah:

Rabbi Aqiva in the name of Rabbi Yehoshua says: If two were gathering cucum-bers [by sorcery] one gatherer may not be culpable and the other gatherer may be culpable; he that performed the act is culpable, but he that deceived the eyes is not culpable. (m. Sanhedrin 7:11)

Since Rabbi Aqiva is reciting “in the name of Rabbi Yehoshua,” his master, it is clear that the authority of the teaching lies in its extra-scriptural trans-mission. Finally, the phrase doresh halakhot is syntactically ambiguous – it can refer to interpretive activity that produces halakhot or, alternately, to the interpretation of halakhot. Since there are numerous examples of extra-scriptural traditions serving as the basis for further interpretation, especially by means of qol va-ḥomer, it is possible that Rabbi Eliezer, who was famously committed to extra-scriptural tradition, was not interpret-ing Scripture at all, but rather elaborating halakhot.56 In Bavli Menaḥot, in contrast, the overarching textuality of Rabbi Aqiva’s scriptural interpreta-tion makes it clear that he is, paradoxically, producing halakhot scripturally.

Comparing the portrait of Rabbi Aqiva as interpreter here and in earlier strata, we find the change he undergoes is profound. His scriptural interpre-tations are not lauded for their ability to provide support to extra-scriptural halakhot, but rather for his ability to penetrate more deeply into the hidden meaning of the Torah than even Moses at the peak of his powers. He is – ontologically, cosmically – the reader of Torah since it was written for him; Rabbi Aqiva is present in God’s mind while the Torah is being composed. If we assume that lidrosh halakhot is a conscious attempt to assimilate ha-lakhah into the category of midrash (the sophisticated appropriation of t. Sanhedrin 11:5 helping to blur the novelty of the argument) – the picture becomes starker still: Rabbi Aqiva goes from interpreting Scripture in the

56 To put it in different terms, the halakhot are the direct object of lidrosh (the thing be-ing interpreted) rather than the thing being produced by the interpretation. For an exam-ple of qol va-ḥomer applied to halakhot see the discussion of m. Keritot 3:7–10 above, and the literature cited therein. The prevalence of such interpretation in early rabbinic strata may provide indirect testimony regarding the practices the Qumran community criticizes, assuming the phrase חלקות הלכות is intended to invoke דורשי On this question see .דורשי L. H. Schiffman, “Pharisees and Sadducees in Pesher Nahum,” in: Minḥah le-Nahum: Biblical and Other Studies Presented to Nahum M. Sarna in Honour of his 70th Birthday (Sheffield: JSOT Press, 1993), 272–90.

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service of halakhah, to an interpretive model so thoroughly textual that it leaves no space for halakhot as an independent, extra-scriptural source.

All of which brings us to the dramatic conclusion of the first section: Moses is confounded by Rabbi Aqiva’s argument. When one of the students ask Rabbi Aqiva how he knows these teachings, he replies that they are halakhah le-moshe mi-sinai. This response casts Moses in a dual role – he is both the confounded auditor, trying but failing to follow Rabbi Aqiva’s argument, and the authorizing figure for the very same arguments. It also highlights the paradoxical relationship between the Sinai epiphany and its rabbinic Rezeption. But paradox aside, what does this response mean? Read as a straightforward response, it constitutes a break with everything that came before it: it is no longer the textual interpretation that enjoys priority but extra-scriptural halakhah. And if the exchange “Master, how do you know this? It is halakhah le-moshe mi-sinai” was an independent unit used by the redactor of the Menaḥot story,57 this may indeed have been its mean-ing.58 But in the narrative as it stands before us, with its emphasis on Rabbi Aqiva’s unique textual skills, the conclusion points in the opposite direction, though how strongly it does so cannot be determined with certainty. It may be making the strong claim that, at the end of the day, halakhah le-moshe mi-sinai is scriptural interpretation – either because it agrees with Scripture or derives from it – in which case Moses’ relief is the ironic apex of the story. It may also be making the weaker claim that scriptural interpretation contains an element of halakhah le-moshe mi-sinai inasmuch as the herme-neutic rules that guide the process are handed down from master to disciple (a view attested in medieval sources),59 in which case Moses’ relief is justi-fied. In either case (and I do not think there is sufficient evidence to decide the matter one way or another), here too Menaḥot introduces the trope of extra-scriptural halakhah into a narrative that explicitly valorizes midrash.

57 As with the shift from keter to qotz, there is an incongruity here as well, since the first half’s “set up” (Rabbi Aqiva is able to interpret crowns/flourishes) has no “pay off” in the second half. The response to the question “how do you know this?” should, by the narrative logic of the story, involve the interpretation of a flourish.

58 Cf. the story in b. Niddah 45a about a woman who had sexual intercourse forced on her before she reached the age of three and asks Rabbi Aqiva about her status regarding the priesthood. After the woman and Rabbi Aqiva discuss the matter, his students question his answer and the exchange ends with the assertion that “all the Torah is a tradition that was handed to Moses at Sinai.” There is some ambiguity as to who makes this last statement, Rabbi Aqiva or his students, though the logic of the dialogue as a whole, and the stam’s qualification: “Rabbi Aqiva too made his statement only for the purpose of exercising the wits of the students,” suggest the former. In either case, this is another passage that equates the Torah with halakhah.

59 Louis Finkelstein. “On the Notion that the Thirteen Middiot are halakhah le-moshe mi-sinai,” in Sefer Zikaron le-Rabi Shaul Liberman (ed. S. Y. Friedman; Jerusalem and New York: Jewish Theological Seminary, 1993), 79–84.

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To appreciate the shift that occurs in moving from the tannaitic sources to b. Menaḥot 29b, consider their respective views regarding the location of revelation. For the Mishnah and Sifra, revelation has already occurred and its content is available by means of oral transmission. Biblical interpretation may offer succor to halakhot in various ways, buttressing their authority (apparently the function of Rabbi Aqiva’s midrash concerning the third loaf), serving as a proof against which to examine corrupted halakhot (as when Rabbi Aqiva corrects the poorly transmitted halakhah cited by Rabbi Tarfon) or forgotten halakhot (again Rabbi Tarfon60), and more. But in all these cases, midrash is secondary both temporally and axiologically – Rabbi Aqiva is lauded because he interprets Scripture and “agrees with Oral Tra-dition.” In the Menaḥot narrative, Rabbi Aqiva’s midrash becomes the site of revelation, for it is only with Rabbi Aqiva’s arrival on the scene that the Torah can be properly understood; it is only under the interpretive gaze of Rabbi Aqiva that God’s word is fully revealed for the first time; even the prophet who ascended Mt. Sinai and received the Torah directly from God, does not understand its true content. And how could he, when God’s word can only be unraveled by a sage capable of interpreting non-semantic ele-ments, inscrutable to all but Rabbi Aqiva? How could he, in other words, when the meaning of the Torah can only be recovered by what amounts to an oracular interpretation?

It is worth noting that the revelatory model of b. Menaḥot accords with the Second Temple trope that God’s word is first revealed enigmatically, through a prophet who cannot comprehend it, and only at a later historical point, after the right reader or group of readers has appeared on the histori-cal stage, is properly interpreted. This trope appears in the final chapter of the Book of Daniel, when the heavenly man informs Daniel of a future time of great knowledge: “And the knowledgeable will be radiant like the bright expanse of sky, and those who lead the many to righteousness will be like the stars forever and ever” (Daniel 12:3). Daniel, however, cannot grasp the meaning of the visions he has received: “I heard but did not understand, so I said, ‘My lord, what will be the outcome of these things?’ He said, ‘Go, Daniel, for these words are to remain secret and sealed to the time of the end’ … none of the wicked will understand, but the knowledgeable will understand” (Daniel 12:8–10). The initial recipient of God’s word, the prophet himself, is not qualified to understand it, so it is “to remain secret and sealed,” a written text61 inscrutable to contemporary readers. In a future

60 Most explicitly in Sifre Numbers § 75 (Horovitz edition, 70).61 The prophecy’s written nature is explicit a few verses earlier: “But you, Daniel, keep the

words secret and the book sealed until the time of the end” (Dan 12:4).

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time, however, there will arise an interpreter (or community of interpreters) that will be able to understand the true meaning of Daniel’s prophecy.

A similar interpretive model – this time viewed from the perspective of the later interpreter – underlies the Qumran pesharim, which are based on the notion that the teachings of the prophets are generally enigmatic, but not to one remarkable reader:

“Write down the vision and make it plain upon the tablets, that he who reads may read it speedily” (Hab 2:1–2): … God told Habakkuk to write down that which would happen to the final generation, but He did not make known to him when time would come to an end. And as for that which He said, “that he who reads may read it speedily”: interpreted this concerns the Teacher of Righteousness, to whom God made known all the mysteries of the words of His servants the prophets. (1QpHab 7.4–5)62

This brief passage contains all the elements that b. Menaḥot will associate with Rabbi Aqiva, centuries later. The prophet is instructed to preserve God’s word in writing, but is incapable of interpreting it as God “did not make known to him when time would come to an end.” Generations later, however, there will arise a reader who will properly understand the words of Habakkuk, for it is to this later reader – the Teacher of Righteousness – that “God made known all the mysteries of the words of His servants the prophets.”

The immediate point is that Rabbi Aqiva’s role in b. Menaḥot 29b paral-lels that of “the knowledgeable” in Daniel and the Teacher of Righteousness in Pesher Habakkuk, while Moses is relegated to the role of the transmitter of a message he cannot grasp (much like his fellow prophets Daniel and Habakkuk). In terms of the broader argument of this essay, then, Menaḥot 29b’s close affinity to the Second Temple model highlights the extent to which it differs from the understanding of midrash found in the tannaitic sources.

II. Avot de Rabbi Nathan A6

I now turn to the second post-tannaitic text we will discuss in detail, Avot de Rabbi Natan’s description of Rabbi Aqiva’s entry into scholarship.63 Mar-veling at the power of water to wear away a hard rock, and perhaps shamed by his ignorance of Scripture (“Aqiva, have you not read ‘The waters wear away the stones?’” [Job 14:19], say his anonymous interlocutors), Rabbi Aqiva sets off to learn Torah.

62 Geza Vermes, trans., The Complete Dead Sea Scrolls in English (Penguin: New York, 2004), 512.

63 That the motif of Rabbi Aqiva’s youthful ignorance and late entry into scholarship is argued in my “Rabbi Aqiva’s Youth,” JQR 100 (2010), 573–597.

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He went together with his son and they appeared before an elementary teacher. Said Rabbi Aqiva to him: “Master, teach me Torah.” Rabbi Aqiva took one end of the table, and his son the other end of the tablet. The teacher wrote down aleph bet for him and he learned it; aleph tav, and he learned it; the book of Leviticus, and he learned it. He went on studying until he learned the whole Torah.

Then he went and appeared before Rabbi Eliezer and Rabbi Yehoshua. “My mas-ters,” he said to them, “reveal the justification64 (ta‘am) of mishnah to me.” When they told him one halakhah he went off to be by himself. “This aleph,” he wondered, “why was it written? That bet, why was it written? This thing, why was it said?” He came back and asked them, and reduced them to silence.

[…]

Rabbi Tarfon said to him: “Aqiva, of you the verse says ‘the source of the river he probes; hidden things he brings to light’ (Job 28:11).” Things concealed from men, you Rabbi Aqiva brought forth to light.65

Kahana, in his article, cites this passage and characterizes it as a more ex-treme version of the basic lesson of m. Keritot 3:7–10 (discussed above), which portrays Rabbi Aqiva as initially receiving his masters’ teachings without comment, and growing progressively more willing to engage and even dispute them.66 But in focusing on these similarities, I believe Kahana has failed to appreciate how deeply the ADRN narrative differs from m. Keritot in its representation of Rabbi Aqiva, both in ADRN’s focus on the textual dimension of Rabbi Aqiva’s study, and in its concomitant margin-alization of extra-scriptural halakhah.

The centrality of Scripture to Rabbi Aqiva’s scholarly formation is ad-umbrated at the very beginning of his journey, as his query regarding the worn stones of the well is greeted with a rhetorical “Aqiva, have you not read ‘The waters wear away the stones?’.” But Aqiva has not read this verse nor any other since he is illiterate, and much of the story is devoted to his dogged pursuit of literacy. After enrolling with an elementary teacher along with his son, Rabbi Aqiva begins with studying the alphabet, then gradu-ates to Leviticus, and ultimately learns the entire Torah. Having mastered this corpus, Rabbi Aqiva sits before Rabbi Eleizer and Rabbi Yehoshua, the two men the Mishnah (and m. Keritot 3 is a prime example) portrays as his masters in the transmission of extra-scriptural halakhah. But rather than learn halakhot from these sages, he asks them: “reveal the justifica-tion (ta‘am) of mishnah to me.”67 The request is surprising on a number of

64 Goldin translates: sense.65 Avot de Rabbi Natan A, 6 (Becker edition, 80–81). The translation generally follows

Judah Goldin, The Fathers According to Rabbi Nathan (New Haven and London: Yale University Press, 1983), 41–42.

66 Kahana, “On the Fashioning and Aims of the Mishnaic Controversy,” 76–77. 67 I have opted to transliterate the Hebrew mishnah since ta‘am mishnah could be trans-

lated as “the justification of a mishnah” or “of the Mishnah.” Rabbi Yehoshua and Rabbi

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levels. First, on the basis of everything we know from tannaitic sources, we would expect Rabbi Aqiva to begin studying halakhot. Second, his ques-tions presupposes that the mishnah they will teach him is already linked to a ta‘am and that it is the latter that Rabbis Eliezer and Yehoshua are to teach Rabbi Aqiva. Finally, it is odd that Rabbi Aqiva’s first address of his great teachers is “My masters, reveal the justification (ta‘am) of Mishnah to me,” when earlier he had requested of the elementary teacher, “Master, teach me Torah.” At first blush the roles seem to be reversed – surely he comes to Rabbi Eliezer and Rabbi Yehoshua to learn Torah – but in fact the trajectory of the story makes it clear that his literacy allowed Rabbi Aqiva to “learn the whole Torah.” Rabbi Eliezer and Rabbi Yehoshua are relegated to a secondary role of providing a “justification” or “sense” for an extra-scriptural tradition. Their role is further marginalized by the fact that reading furnishes Rabbi Aqiva with a path into the world of Torah, even allowing Rabbi Aqiva to confound his masters from the outset. For after taking leave of them he wonders “this aleph, why was it written? That bet, why was it written? This thing, why was it said?” The third question makes sense in the context of the transmission of an oral halakhah, but the aleph and bet Rabbi Aqiva interrogates – what is their source? Per-haps the halakhah transmitted by Rabbis Eliezer and Yehoshua has been codified, in which case Rabbi Aqiva is examining the written halakhah itself. This is unlikely because it deprives the third question (“This thing, why was it said?”) of meaning. The more likely possibility is that Rabbi Aqiva is studying the ta‘am of the halakhah, that is, the biblical verse that justifies the extra-scriptural tradition, so he is trying to make sense of the relationship between written Scripture and oral teaching. In either case, the tannaitic model of master-disciple transmission is compromised: on the first interpretation because written halakhot do not require face-to-face transmission and so can circulate freely, on the second interpretation, because Rabbi Aqiva’s response to his masters assumes that halakhot are substantively dependent on Scripture – uncover a problem regarding the ta‘am and you have stumped the tradents of the halakhah itself. This too represents a shift, as tannaitic sources recognize the possibility of a hala-khah existing independently of a ta‘am:

When Rabbi Aqiva was arranging the halakhot for his students he said: Whoever has heard a justification (ta‘am) concerning another let him come forward and say it. (t. Zabim 1:2)68

Eliezer tell Rabbi Aqiva a single halakhah, a response that seems to suggest Rabbi Aqiva is speaking of “a mishnah,” but I see no way to decide the matter with certainty.

68 See also m. Menahot 4:3, “Halakhah is according to his words, but the ta‘am is not according to his words.”

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Here halakhot are prior to and independent of their ta‘am (and there is no reason to suppose every halakhah has a ta‘am), a view fully in agree-ment with the overall position of the Mishnah and the Sifra passages dis-cussed above: extra-scriptural tradition enjoys priority, while scriptural justifications are both temporally and axiologically secondary. This point is explicit in the Mishnah, when Rabbi Shimon ben Nanos states that the temple bread-offering cannot impair the lamb offering, and justifies his view with a scriptural analogy: “For like as we find that when Israel was in the wilderness forty years they offered lambs without the break-offering,” to which Rabbi Shimon responds: “Halakhah is according to the words of Ben Nanos, but the justification (ta‘am) is not according to this words” (m. Menaḥot 4:3). The halakhah in this case is correct irrespective of the justification.69 Were ADRN still guided by the principles that underlie the Mishnah and Tosefta, Rabbi Aqiva could have challenged the ta‘am offered by his masters, but not confounded them altogether.

But what of the main point of similarity Kahana draws between ADRN’s narrative and m. Keritot’s portrayal of an increasingly assertive Rabbi Aqiva, who is ultimately willing to challenge his teachers? Kahana is undoubtedly right that both sources paint a similar portrait of Rabbi Aqiva in this regard, but in terms of the present discussion, the language of Mishnah Keritot is significant, particularly Rabbi Aqiva’s statement that “if it is halakhah we must accept it, but if it is only an inference (din), there is a rebuttal,” and Rabbi Yehoshua’s reply: “Rebut it” (m. Keritot 3:9). Yes, Rabbi Aqiva is willing to challenge his teachers, but the Mishnah takes pains to delineate the scope of the challenge, namely, that it is not the halakhah as such that Rabbi Aqiva calls into question, only the secondary qol va-ḥomer argu-ments based on a particular oral tradition. In ADRN, however, the picture is not so clear. Rabbi Aqiva asks his masters to reveal to him ta‘am mishnah, but then we learn that “they told him one halakhah,” on the basis of which “he came back and asked them, and reduced them to silence.” At the very least, ADRN does not share the Mishnah’s desire to clarify that Rabbi Aqiva’s challenge is not directed at the halakhah itself, indeed, it is possible to read the passage as asserting that this is precisely what he does (as a result of his textual acumen).

The analysis thus far suggests that the ADRN narrative, like b. Menaḥot 29b, emphasizes the textual nature of Rabbi Aqiva’s learning, and, perhaps as a corollary, displaces extra-scriptural halakhah from the elevated status

69 Interestingly, in Tosefta Zavim Rabbi Aqiva invites the students to provide justification they have heard, not to open a Bible and interpret it; even if the justifications are scriptural (like the one Rabbi Aqiva himself provided for the impurity of the third loaf), they are transmitted orally.

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it enjoys in the tannaitic sources discussed in the first part of this study.70 The extent to which Rabbi Aqiva is transformed is evident from the coda of the ADRN narrative, i. e., Rabbi Tarfon’s exclamation: “Aqiva, of you the verse says ‘the source of the river he probes; hidden things he brings to light’ (Job 28:11). Things concealed from men, you Rabbi Aqiva brought forth to light.” As noted above, Rabbi Tarfon’s praise of Rabbi Aqiva the midrashist is a recurring trope in tannaitic sources, but here too surface similarity camouflages a deep break. In the earlier sources, Rabbi Tarfon consistently praised Rabbi Aqiva for his ability to interpret Scripture so as to uphold or recover a halakhah, e. g., “It was I who received the oral tradi-tion but was unable to explain while you explicate [doresh] and agree with the oral tradition. Indeed, to depart from you is to depart from life itself.” In ADRN, Rabbi Tarfon praises Rabbi Aqiva as a wondrous, singular in-terpreter, whose midrash constitutes a form of revelation: things that were hidden mi-bnei ’adam, from humanity, Rabbi Aqiva brings to light.

In my analysis of these two post-tannaitic sources (Moses in Rabbi Aqiva’s bet midrash and Rabbi Aqiva’s entry into scholarship) I have emphasized how differently they represent the relationship between midrash and extra-scriptural tradition relative to the Mishnah and the Sifra: extra-scriptural tradition is here diminished, and scriptural interpretation elevated, some-times to the point of becoming a revelatory or oracular moment. Are b. Menaḥot 29b and ADRNA 6 typical? Certainly few other sources revolve around the image of Rabbi Aqiva the midrashist to the same extent. Still, there are a number of passages in the Talmudim (and elsewhere) that as-sume Rabbi Aqiva’s midrash is a consistent and systematic enterprise, in a way not clearly stated in tannaitic sources. For example, when Shimon (or Nehemiah) Imsoni interpreted every ‘et in the Torah but one (“you shall fear [’et] the Lord your God” [Deuteronomy 6:13]), it is Rabbi Aqiva who interprets the verse and thus guarantees a consistent (and thus tannaiti-cally unattested) engagement of ’et (b. Peashim 22b; b. Bava Qama 41a). A number of statements identify hermeneutic rules that guide Rabbi Aqiva’s midrash: “Rabbi Aqiva expounds the conjunction and” (b. Sotah 28a)71; “Rab follows Rabbi Aqiva whose method it was to lay stress on superfluities of expression” (b. Nazir 7b; and see the similar statement at b. Bava Batra 138b); “Rabbi Aqiva derives rulings by analogy (gezerah shavah) even when

70 Ironically, this story, which lauds Rabbi Aqiva’s ability to confound his teachers after they told him a single halakhah, is part of Avot de Rabbi Natan’s commentary to Yose ben Yo‘ezer’s saying, “Let your house be a meeting place for sages; sit in the dust of their feet and thirstily drink in their words” (m. Avot 1:4).

71 See the analysis of this passage in Rosen-Zvi, “Who Will Remove?” 117–122.

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it is not vacated (mufneh)72” (y. Yoma 8, 3, 45a); as well as the introduction of the term shitah to signify an interpretive approach: “Rabbi Yose stated this in accordance with the opinion (shitah) of Rabbi Aqiva, his master, who interprets yitma, yetamme” (b. Pesaḥim 18a; see also y. Sukkah 4, 6, 54c).73

Concurrently, there are additional sources that characterize Rabbi Aqiva as a an oracular or prophetic figure: in b. Ḥagigah 15b, the angels wished to push Rabbi Aqiva away from the pardes – the heavenly realm to which he and three other sages ascended – but God detains them since Rabbi Aqiva is “worthy of using God’s glory,” where “using” renders lehishtamesh, a term that regularly refers to oracular consultation;74 the extra-canonical tractate Kallah Rabbati75 describes Rabbi Aqiva arguing against the positions of Rabbis Yehoshua and Eliezer and, despite the extreme improbability of his view, he is proven correct. This elicits a collective, anonymous response: “Blessed is He who revealed His secret to Rabbi Aqiva”  – and further sources could be cited. In short, even if b. Menaḥot 29b and ADRNA 6 are unusual in their formulation, the themes they introduce – the elevation of midrash and its representation in oracular terms – are elsewhere attested.

Conclusion

The present essay sets forth two arguments. First, that the Sifra no less than the Mishnah, represents Rabbi Aqiva’s interpretive prowess in terms of providing scriptural support for existing halakhot – and that this view may be constitutive of the Sifra’s own midrashic practices. Second, that (at least some) post-tannaitic sources break with this view sharply, repeatedly characterizing Rabbi Aqiva’s midrash as thoroughly textual, superior to extra-scriptural halakhot, and, at times, as an independent site of divine revelation. Is this shift unique to the figure of Rabbi Aqiva, or indicative of a broader development in rabbinic sources? Probably a little of both. It seems to me there is a general shift, evident in at least some post-tannaitic sources, toward understanding Scripture as the primary (or only) legitimate source of legal decisions, sometimes at the expense of halakhah. A near ubiquitous

72 On this term see Yadin, Scripture as Logos, 59–61.73 Note hwo the transmission of interpretive principles defines Rabbi Aqiva and Rabbi

Yose’s master-disciple relationship, rather than than the transmission of extra-scriptural halakhot – the norm in tannaitic sources.

74 As noted by Saul Lieberman, Hellenism in Jewish Palestine: Studies in Literary Trans-mission, Beliefs and Manners of Palestine in the I Century B. C. E.–IV Century C. E. (Jewish Theological Seminary: New York, 1962), 194–199.

75 Kallah Rabbati chapter 2, Michael Higger, Massekhet Kallah (New York: Moinester, 1936), 191–192. This passage was recently discussed, albeit from a very different perspective, by David Brodsky, A Bride without a Blessing (Tübingen: Mohr Siebeck, 2006), 146–148.

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example is the Babylonian Talmud’s’ frequent response to a tannaitic tradi-tion: mena hanei milei (“whence do we learn these matters?”), invariably answered with a biblical verse. That such a question can be posed is far from self-evident, since the tannaitic sages whose views make up the core of the Mishnah and the Sifra would have seen it as superfluous, at best. Rabbi Elazar ben Azariah’s response to Rabbi Aqiva’s scriptural justification of the half log libation for the thanksgiving offering indicates that some rabbis viewed these midrashic arguments as unacceptable encroachments into the domain of halakhah. In the world of the Mishnah (and if my argument is correct, the Sifra as well), the Bavli’s question is almost nonsensical. How can you cite the legal teaching of, say, Rabbi Eliezer, and then ask “whence do we know this”? The answer is already contained in the question – it is a legal teaching transmitted by Rabbi Eliezer! But the Bavli clearly does not see this as dispositive: the saying requires further legitimation in the form of a biblical verse. This scripturalization of extra-scriptural halakhot76 bears a surface similarity to the Sifra’s anchoring of halakhot in Scripture, but the two are in fact quite different. The Sifra recognizes and in some passages openly asserts the ex post facto nature of its midrash, thereby preserving the non-scriptural authority of the halakhot. The Bavli’s mena hanei milei, in contrast, implies that a tannaitic legal statement divorced from Scripture is not authoritative, and justification from the Torah is required.77

76 “Scripturalization” refers here to the linking of halakhot to biblical verses, and not to the phenomenon discussed by Liz Shanks in Transmitting Mishnah, i. e., the tendency of the post-tannaitic sages to apply to the Mishnah the same assumptions concerning language (economy, intentionality, reflexive self-awareness on the part of the text allowing for the juxtaposition of different passages) as to the Torah. I think the shift I am pointing to may be linked (conceptually and perhaps historically) with Shanks’ scripturalization, inasmuch as the midrashic model comes to be so dominant that its hermeneutic assumptions spill over onto other authoritative texts, and it annexes, as it were, the Mishnah to Scripture. See Elizabeth Shanks Alexander, Transmitting Mishnah: The Shaping Influence of Oral Tradition (New York: Cambridge University Press, 2006). It is worth noting that already the Mishnah itself contains examples of “scriptural” interpretations of oral traditions, as in the common practice of applying din arguments to halakhot (e. g., m. Keritot 3:7–10, discussed above) or interpretation from precise wording (e. g., m. Ohalot 2.7 [“They did not say ‘bones of a barleycorn’s bulk,’ but ‘a bone of a barlyecorn’s bulk’”]; m. Miqva’ot 3:3 [“They did not say ‘if many pour’ rather ‘if one pours’”]). These examples occur at a time when extra-scriptural tradition is still productive and indeed dominant, so the broader context is different from the post-tannaitic period.

77 This trajectory is precisely the opposite of the one David Weiss Halivni has proposed in a number of publications (arguing, usually implicitly, against Epstein and Urbach). The problem with Halvini’s argument is that he confuses references to extra-scriptural halakhah with its existence. Or, in Sam Brody’s succinct formulation, “There is a question here about whether Halivni conflates the phrase halakhah le-Moshe mi-Sinai, which appears a few times in tannaitic sources … with the existence of extrascriptural traditions as such and their defense by tannaitic sources” (Sam Brody, “Shuffling the Tablets: The Authority of ‘The Authority of Scripture in Rabbinic Literature’ in Contemporary Jewish Thought,” unpub-

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Discussion of why this shift occurred lies beyond the purview of the present study, and is undoubtedly the result of a number of factors that must be chronologically and geographically distinguished: the often scripturally based engagement with and polemic against what would eventually became Christianity; the canonization of the Mishnah; the geographic remove and genealogical discontinuity of Babylonian Jewry from the main tradents of extra-scriptural halakhah; the textualization of pagan oracular practices,78 and more.

Clearly, then, the shift toward Scripture is not an isolated phenomenon that finds expression only in conjunction with the figure of Rabbi Aqiva. Still, Rabbi Aqiva does appear to be the poster child for this change – no other tannaitic figure is so thoroughly identified in later sources with mi-drash, or as such an expert practitioner of it. This is somewhat perplexing, since at least two factors weigh against this identification: the tannaitic sources’ explicit characterization of Rabbi Aqiva’s midrash as intended to support halakhah, and the existence of a more robust midrashic position in the midrashim associated with Rabbi Ishmael. In other words, why take the tanna most explicitly associated with midrash in the service of halakhah and turn him into the constitutive midrashist par excellence? Though there is no way to reconstruct the considerations motivating this transformation, I would like to suggest that it is precisely Rabbi Aqiva’s loose allegiance to Scripture in the tannaitic sources that (at least in part) paves the way for the later representation of Rabbi Aqiva. If a biblical verse is merely a mnemonic or a support for an existing ruling, it is subject to much less stringent de-mands of consistency and coherence. For example, if Leviticus 17:13 states that the blood of a hunted bird must be poured out, and the Sifra already knows that this ruling holds for birds as such, irrespective of how they were acquired, it may use the repetition ’ ish ’ish as a convenient reference point for introducing this broader ruling. And if Leviticus 18:6 prohibits uncov-ering the nakedness of another, and the Sifra already knows that this ruling holds for gentiles as well as Jews, it may again use the repetition ’ ish ’ish as a trigger for introducing the broader ruling – and so on with the other ’ ish ’ish derashot. Similarly, if Leviticus 7:18 states that eating a sacrifice on the third day is unacceptable, and the Sifra already knows that there is a

lished paper written for a graduate seminar at the University of Chicago Divinity School, Spring, 2009).

78 On the last point, see Mary Beard, “Writing and Religion: Ancient Literacy and the Function of the Written Word in Roman Religion,” in Literacy in the Roman World (ed. J. H. Humphrye; Ann Arbor, MI, 1991), 35–58; Jacqueline Campeaux, “De la parole à la l’écriture: Essai sur le langage des oracles,” in Oracles et prophéties dans l’antiquité (ed. J. –G. Heintz; Strasbourg: De Boccard, 1997); David Frankfurter, “Voices, Books, and Dreams: The Diversification of Divination Media in Late Antique Egypt,” in Mantikê: Studies in Ancient Divination (ed. S. I. Johnston and P. T. Struck; Leiden and Boston: Brill, 2005), 233–254.

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long list of conditions that render sacrifice unacceptable – “sacrifices made at night, and to those whose blood was spilled, or whose blood trickled beyond the partition of the Tabernacle, or whose blood was not ritually tossed, or whose flesh protruded, etc. etc.” – it may use the Bible’s apparent redundancy “it shall not be acceptable; it shall not count” as a convenient hook on which to hang this broader ruling.79 But later rabbinic readers, ap-proaching the Sifra as heirs to the shift that elevated the status of midrash, may have assumed that the interpretation of Leviticus produces these rul-ings, and had no recourse but to assume the author of the Sifra possessed incomparable, perhaps superhuman interpretive powers. It is also possible that the later interpreters are consciously reworking the tannaitic sources while trying to create the illusion of continuity; I see no way to decide this question at the present time. In either case, once the Sifra is read as generat-ing its conclusions rather than supporting existing laws, it legitimizes many of the hermeneutic practices that later come to be associated with Rabbi Aqiva.80 Whatever the underlying motivation (and there is no reason to as-sume the existence of a single motivation for different geographic areas and historic periods), it is not surprising that legends and tall tales sprout about such a figure – ultimately leading to the portrait of Rabbi Aqiva familiar to us today.

79 My argument here is, in a sense, in dialogue with Günter Stemberger’s reconstruction of the redactional history of the Sifra. Stemberger claims that the earliest stratum of the Sifra consists of the midrashically unsophisticated identifications of biblical elements (“X is Y”), and that the dialectics were later superimposed onto this base. Though my own point is redactionally agnostic, it accords hermeneutic priority to the same (though I do not consider them midrashically unsophisticated, but rather not midrash at all). See G. Stemberger, “Zur Redaktionsgeschichte von Sifra,” in Approaches to Ancient Judaism Vol 11 (ed. J. Neusner; Atlanta: Scholars Press, 1997), 39–82.

80 I thank Moulie Vidas for helping me express this last point more clearly.