Scripture, Interpretation, or Authority? Motives and Arguments in Jesus' Halakic Conflicts

In memory of my father

Roland Kazen

1936–2009

and a vision of restoration for the marginalized

Preface

A book on motives and arguments in Jesus’ conflicts with his contempo-raries about various halakic issues is not really too much of a departure in view of my earlier studies on purity and impurity. In my dissertation (Je-sus and Purity Halakhah, 2002; corrected reprint edition 2010; see also Issues of Impurity in Early Judaism, 2010) I asked questions not only about what Jesus did or did not do, but also about his attitudes. Attitudes undeniably have to do with motives and purposes.

The idea of this specific topic was born in 2006 when Peter Tomson in-vited me to respond to a paper by Friedrich Avemarie on Jesus and purity at a Leuven conference. Our conclusions differed, which is, of course, nothing new in the scholarly world, but a well known phenomenon that some consider part of the game and others take as proof that the task of history is hopeless and beyond redemption. This happened, however, in spite of the fact that I believe we shared a basically similar outlook, ex-pecting Jesus to fit well into his contemporary Jewish milieu, not being in any way in opposition to the Torah as such. As it turned out, our dis-agreement had mainly to do with whether or not Jesus objected to post-biblical halakah in favour of Scripture.

This is in a sense a question of motives. Why did Jesus come into con-flict with some of his contemporaries about legal issues? It is hardly pos-sible to claim that he had no disagreements at all – when it came to ha-lakic interpretation and practice most Jewish groups had disagreements. We rather have to ask: with whom did he agree and with whom did he dis-agree? And the natural follow-up is, why?

A number of possible motives have suggested themselves throughout the history of research on the historical Jesus. Some suggestions are clearly outdated. I will not spend much time in refuting ideas of Jesus op-posing or “abrogating” Jewish law in principle; the ghosts of some of the “new questers” have been adequately laid by others. There are other sug-gestions, however, such as Jesus defending Scripture against halakic elaborations or favouring spiritual matters over cultic concerns, or the idea of a personal authority, often bound up with messianic or christological implications, all of which deserve more attention. As will become clear through this study, I am suspicious of these suggestions as explanations of

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the motives of the historical Jesus, often finding that they mirror early Christian reflection on the theological meaning of the Jesus tradition.

Certain interpretations seem to reflect confessional concerns; while Stephen Westerholm’s Jesus and Scribal Authority is still a valuable piece of research and has served as a point of departure for a number of students – I remember devouring it as a young undergraduate – its description of Jesus as viewing God’s will not as statutory commands but as something only to be fulfilled “by a heart in tune with the divine purposes,” now seems rather pietist and suspiciously anachronistic. In the end, however, I will suggest that there is something about Jesus’ view of torah which, combined with a prophetic outlook and a utopian vision of inclusive resto-ration, results in an attitude focused on the priority of human need and the pragmatics of human welfare. I will also suggest that such a vision was borne and supported by popular understanding and expectation, and that the authority associated with Jesus’ stance is best explained by its collec-tive and prophetic underpinnings.

The present volume builds to some extent on a paper presented in 2007 at the Annual Meeting of the Society of Biblical Literature in San Diego. While that was no great performance – at least I hope it was my last speed-reading exercise ever – I am grateful to Bob Webb who overlooked that and not only kindly made me realize that this was an outline for a book rather than an article, but also encouraged me to write it.

My writing then partly took a different turn, when I encountered Aharon Shemesh’s recent book on halakic development (Halakhah in the Making, 2009). Here I found tools that were extremely useful, not only for Shemesh’s purposes, but also for analyzing those parts of the Jesus tradi-tion that are relevant to this book. Shemesh, along with other scholars, such as Daniel Schwartz, Adiel Schremer, and Vered Noam, to name but a few, are carrying on a discussion of the development of halakah, which is based to a large extent on close analyses of the Qumran texts and has a bearing on the issue of dating rabbinic traditions – in fact it is crucial in certain areas. These insights provided me with sharper tools to continue the task that I had already begun: to disentangle various motives and as-sign them to those places along a trajectory of ideas where they were most likely to belong. The reader will have to decide how far my attempts have been successful, and to what extent success, or a lack thereof, is due to the methods employed.

As will become evident to the reader, I do not attempt to offer anything like a full history of research or lengthy bibliographies; they are provided by other scholars and there is no point in repeating what is already known and recorded simply for the sake of producing a thicker book, if additional pages do not display anything new in outlook. The content and quality of

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the argument will have to show whether or not I have interacted with rele-vant research.

For the sake of simplicity, I often speak of the gospel texts as if of per-sons: Matthew, Mark, Luke and John, or in the course of discussion, sometimes only as “he.” As should be clear from the wider discussion, this convenient shorthand says little about my view of the authorship of the gospels, their tradition history, or various possible levels of redaction.

This study has been through a lengthier process than any of my previ-ous work. It would not have been possible, were it not for the Stockholm School of Theology, which encourages scholarship by offering consider-able time for research, and for Owe Kennerberg’s generous pragmatism when it comes to research leave. I have had several opportunities to pre-sent parts of this material, both in fairly premature form (Åbo/Turku and Uppsala, Oct 2010) and towards the end of the process (Cambridge, Oct 2012; Durham, April 2013). Aharon Shemesh read an earlier draft of the first two chapter, and I have enjoyed several stimulating conversations with Lutz Doering. I have also received grants from the following Swedish research funds: Gunvor och Josef Anérs stiftelse, Helge Ax:son Johnsons stiftelse, Stiftelsen Lars Hiertas Minne, Birgit och Gad Rausings stiftelse, SKY stipendiefond, and C E Wikströms minne. These have made possible several shorter periods of research leave, during which most of this book was written. Travel grants from Kungliga Vitterhetsakademien (Swedish Royal Academy of Letters) financed several shorter trips to Cambridge, where superior library resources have speeded up research and writing. A sabbatical grant from the Wenner-Gren foundation made a longer stay possible, during which I was able, among other things, to complete this manuscript. For all of this I am grateful. I would also like to thank Jim Kelhoffer for suggesting Mohr Siebeck as publishers and, finally, Jörg Frey and Henning Ziebritzki for accepting the manuscript for the WUNT series.

As with my previous book on emotions in biblical law, Naomi Hallan has corrected my English. Her accuracy and patience are exceptional; all remaining flaws are entirely my own responsibility.

This book is dedicated to the memory of my father, Roland Kazen, who died all too suddenly from cancer in January 2009, the year in which I be-gan to work seriously on this study. His services in training leprosy sur-geons across Africa were and are still badly needed. While largely un-known, reconstructive leprosy surgery provides physical restoration and human dignity to some of the most marginalized and despised people in the world. Such engagement is a question of motives, too.

Märsta and Cambridge, Spring 2013 Thomas Kazen

Table of Contents

Preface ......................................................................................................... VII Abbreviations ............................................................................................... XV

Chapter 1: Introduction: the historical Jesus and halakic development .................................................................. 1

1.1 The problem: whose motives? ........................................................... 1

1.2 The background: Jesus and the law .................................................. 6

1.3 The conditions: prospects of history ............................................... 13

1.4 The methods: criteria, critical analyses, and historical hypotheses ............................................................... 22

1.5 The aims: goals, intentions, and psychological criticism ................ 29

1.6 The new turn: development of halakic reasoning ............................ 31

1.7 The way forward – in this case ....................................................... 48

Chapter 2: The Sabbath ................................................................... 53

2.1 State of discussion .......................................................................... 53

2.2 Texts and sources ............................................................................ 58

2.3 The development of contemporary Sabbath halakah ....................... 71

2.3.1 Prohibited work in early halakah ..................................................... 72 2.3.2 The Mishnah and forbidden acts of labour ...................................... 80 2.3.3 Life-saving and healing .................................................................... 84

2.4 Motives in the Jesus tradition ....................................................... 100

2.4.1 The cornfield incident .................................................................... 100 2.4.2 The Sabbath healings ......................................................................105

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Chapter 3: Purity ............................................................................. 113

3.1 State of discussion ........................................................................ 113

3.2 Texts and sources .......................................................................... 123

3.3 The development of contemporary purity halakah ......................... 140

3.3.1 Sources of impurity ........................................................................ 141 3.3.2 The corpse and corpse impurity ..................................................... 143 3.3.3 People with skin disease ................................................................ 150 3.3.4 Genital dischargers ......................................................................... 155 3.3.5 Graded purification and the defilement of hands ........................... 162

3.4 Motives in the Jesus tradition ....................................................... 176 3.4.1 Divine command against human tradition ..................................... 179 3.4.2 The central saying ...........................................................................182 3.4.3 Halakic innovation and anachronism ..............................................186 3.4.4 Realism in Luke and P. Oxy. 840 ...................................................191

Chapter 4: Divorce ......................................................................... 195

4.1 State of discussion ........................................................................ 195

4.2 Texts and sources .......................................................................... 207

4.3 The development of contemporary divorce halakhah ..................... 221

4.3.1 Law of no return ............................................................................. 223 4.3.2 Supposed criticism of divorce ........................................................ 229 4.3.3 Remarriage and grounds for divorce .............................................. 242 4.3.4 Women’s right to divorce .............................................................. 259

4.4 Motives in the Jesus tradition ....................................................... 264

4.4.1. The conflict story .......................................................................... 265 4.4.2 The separate saying ........................................................................ 269 4.4.3 The exceptive clause ...................................................................... 271 4.4.4 Who will marry a divorcee? ........................................................... 276

Chapter 5: Roles and motives in the conflict narratives ......... 283

5.1 Models of halakic development ..................................................... 283

5.2 Summarizing results ...................................................................... 285

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5.3 Innovation and interpretation ....................................................... 290

5.4 Authority and uniqueness .............................................................. 293

5.5 Motives and beyond ...................................................................... 301

Appendix: Synoptic comparison of key texts ........................... 303

Bibliography ................................................................................................ 315

Source index ................................................................................................ 341 Author index ................................................................................................ 353 Word index .................................................................................................. 357

Abbreviations

AASF: DHL Annales Academiae Scientiarum Fennicae: Dissertationes Humanarum Litterarum

AASOR Annual of the American Schools of Oriental Research AB Anchor Bible ABRL Anchor Bible Reference Library AfO Archiv für Orientforschung ALGHJ Arbeiten zur Literatur und Geschichte des hellenistischen Judentums AOTC Apollos Old Testament Commentary ARGU Arbeiten zur Religion und Geschichte des Urchristentums ASBT Acadia Studies in Bible and Theology ASNU Acta Seminarii Neotestamentici Upsaliensis ATANT Abhandlungen zur Theologie des Alten und Neuen Testaments AYBRL Anchor Yale Bible Reference Library BAR Biblical Archaeology Review Bib Biblica BIS Biblical Interpretation Series BJS Brown Judaic Studies BRLJ The Brill Reference Library of Judaism BTB Biblical Theology Bulletin BTS Biblisch-theologische Studien BZAR Beihefte zur Zeitschrift für altorientalische und biblische Rechtsgeschichte BZAW Beihefte zur Zeitschrift für die alttestamentliche Wissenschaft ConBNT Coniectanea Biblica New Testament Series CRINT Compendia Rerum Iudaicarum ad Novum Testamentum CSCO Corpus Scriptorum Christianorum Orientalium DJD Discoveries in the Judaean Desert DSD Dead Sea Discoveries EC Early Christianity ESCO European Studies on Christian Origins ETL Ephemerides Theologicae Lovanienses EvTh Evangelische Theologie FDV Franz-Delitzsch-Vorlesung FJCD Forschungen zum jüdisch-christlichen Dialog FRLANT Forschungen zur Religion und Literatur des Alten und Neuen Testaments GNS Good News Studies HBM Hebrew Bible Monographs HTR Harvard Theological Review HUCA Hebrew Union College Annual ICC International Critical Commentary IEJ Israel Exploration Journal

Abbreviations

XVI

IGTC International Greek Testament Commentary JAJ Journal of Ancient Judaism JAJSup Journal of Ancient Judaism Supplements JBL Journal of Biblical Literature JBLMS Journal of Biblical Literature Monograph Series JCPS Jewish and Christian Perspectives Series JCS Journal of Cuneiform Studies JJS Journal of Jewish Studies JQR Jewish Quarterly Review JSHJ Journal for the Study of the Historical Jesus JSJ Journal for the Study of Judaism in the Persian, Hellenistic and Roman

Period JSJSup Journal for the Study of Judaism Supplement Series JSNT Journal for the Study of the New Testament JSNTSup Journal for the Study of the New Testament Supplement Series JSOT Journal for the Study of the Old Testament JSOTSup Journal for the Study of the Old Testament Supplement Series JSPSup Journal for the Study of the Pseudepigrapha Supplement Series JSQ Jewish Studies Quarterly JSS Journal of Semitic Studies LAI Library of Ancient Israel LHB Library of Hebrew Bible LHJS Library of Historical Jesus Studies LNTS Library of New Testament Studies MdB Le monde de la Bible MTS Marburger theologische Studien NICOT New International Commentary on the Old Testament NovT Novum Testamentum NovTSup Supplements to Novum Testamentum NTAbh Neutestamentliche Abhandlungen NTTSD New Testament Tools, Studies and Documents NTL New Testament Library NTS New Testament Studies NTTS New Testament Tools and Studies OBO Orbis Biblicus et Orientalis OTL The Old Testament Library OTS Old Testament Studies PFES Publications of the Finnish Exegetical Society PRR Princeton Readings in Religions RGRW Religions in the Graeco-Roman World RevQ Revue de Qumran SANT Studien zum Alten und Neuen Testament SBL Society of Biblical Literature SBLDS Society of Biblical Literature Dissertation Series SBLRBS Society of Biblical Literature Resources for Biblical Study SBLSBL Society of Biblical Literature Studies in Biblical Literature SBLSP Society of Biblical Literature Seminar Papers SBLSymS Society of Biblical Literature Symposium series SBLWAW Society of Biblical Literature Writings from the Ancient World Series SCJ Studies in Christianity and Judaism

Abbreviations

XVII

ScrHier Scripta Hierosolymitana SemeiaSt Semeia Studies SFSHJ South Florida Studies in the History of Judaism SJ Studia Judaica SJC Studies in Judaism and Christianity SJLA Studies in Judaism in Late Antiquity SNTSMS Society for New Testament Studies Monograph Series STDJ Studies on the Texts of the Desert of Judah StPB Studia Post-Biblica StUNT Studien zur Umwelt des Neuen Testaments SupJSJ Supplements to the Journal for the Study of Judaism TANZ Texte und Arbeiten zum neutestamentlichen Zeitalter TENTS Texts and Editions for New Testament Study TS Theological Studies TSAJ Texts and Studies in Ancient Judaism/Texte und Studien zum antiken

Judentum VT Vetus Testamentum VTSup Supplements to Vetus Testamentum WBC Word Biblical Commentary WMANT Wissenschaftliche Monographien zum Alten und Neuen Testament WUNT Wissenschaftliche Untersuchungen zum Neuen Testament ZAW Zeitschrift für die alttestamentliche Wissenschaft ZNW Zeitschrift für die neutestamentliche Wissenschaft und die Kunde der Älteren

Kirche

Chapter 1

Introduction: the historical Jesus and halakic development

1.1 The problem: whose motives?

In the gospels, Jesus is portrayed as being involved in conflicts regarding legal practice and interpretation, and this is true of all strata. While the gospel of John associates such conflicts with extraordinary claims of au-thority and divinity, such a framework is less clear in the Synoptics. In spite of this it has often been taken for granted also by modern interpret-ers. Not only do we encounter suggestions that Mark, Matthew, or Luke made christological use of these conflicts in their narrative constructs; we also find that the historical Jesus is frequently assigned a self-understanding which somehow places him in a position superior to the law, or even outside the law. A concern with authority, with or without divinity, is often combined with an interest in Jesus as a teacher, who is thought either to have advocated God’s plain law over against human tra-ditions, or else to have argued for another halakic interpretation than those of his adversaries.

The problem is, of course, that the Jesus who argues in favour of Scrip-ture, interprets it differently, or exercises his authority, is, in the first place, the Jesus of Mark, Matthew and Luke. Indeed, sometimes he is not even that, but rather the modern Markan, Matthean, or Lukan scholar’s Jesus, since the theologies of the gospel authors can be quite subtle and implicit, needing modern scholars to identify and expound them. And even when their theologies seem clear enough, the Synoptic authors are using prior traditions, whether written or oral, which may have had their own agendas that have partially spilled over into the texts as we now have them. We thus find a number of explicit or implicit motives associated with Jesus’ conflicts on legal issues, which may be variously assigned to the modern interpreter, the history of interpretation, the author of a par-ticular gospel, early sources (whether written or oral), or the historical Jesus. This is the problem addressed by the present book and its aim is to disentangle motives that may with some degree of probability be assigned to the historical Jesus from those that are more likely to have originated

Chapter 1: Introduction: the historical Jesus and halakic development

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with early tradition, the Synoptic authors, or their respective communities, or even as later interpretations with little foothold in the texts themselves.1

In my dissertation on purity halakah more than a decade ago, I tried to ask questions about the place of Jesus in his environment: “[w]here did he differ, how did he differ and, if possible, why did he differ”?2 That study gave emphasis to non-conflict narrative traditions. Although I still find this to be a valid approach, especially for analyzing Jesus’ stance on that particular question, the present study differs in its aims by giving more emphasis to the why question, and by approaching the issue from a slightly different angle, examining the conflict stories in particular. Why all these conflicts around legal issues? This is very much a question of motives. Various answers suggest various motives, but whose motives are they?

One of the ideas that was common among the “new questers,” was that Jesus opposed or “abrogated” Jewish law in principle.3 I consider that idea not only to have been repeatedly refuted, but also to be incompatible with the contemporary presuppositions of historical Jesus research; hence it will receive little attention in this study.

Related ideas of Jesus opposing certain laws by virtue of his own au-thority,4 usually bring with them implicit or explicit christological claims. Even John P. Meier, who repeatedly warns against both christological in-terpretations and any expectation of a clear principle underlying Jesus’ stance on various issues, still speculates that we could explain Jesus’ atti-tude by his charismatic authority; Jesus simply experienced a pipeline ac-cess to the divine will.5 Such a view, however, belongs to a tradition that understands Jesus’ attitude as a result of his individual inherent authority, which I doubt as a plausible explanation for the behaviour of the historical Jesus. I rather think that such claims must be related to a textual level that primarily reflects early Christian redaction and has a christological intent. This does not mean that the issue of authority is irrelevant in discussing the legal attitude and practice of the historical Jesus. As will become clearer below, however, I think that with regard to the historical Jesus the

1 By “motives” I mean underlying reasons for taking a particular stance or behaving

in a particular way. Motives may seem close to arguments, but the concept is broader. I consider an argument to be an explicitly expressed reason for a standpoint or a behav-iour. A motive can be expressed in an argument, but it can also be implicit in it, or con-cealed behind it. Arguments are rhetorical means. Motives are convictions, attitudes, and reasons for particular behaviour.

2 Kazen 2002 (now in corrected reprint 2010): 34. 3 Cf. Käsemann 1964 (1954): 39–40; Lambrecht 1977: 76–77; Schweizer 1971

(1967): 70–77, 145–147, 151–52, 234. 4 Cf. Banks 1975: 262–63. 5 Meier 2009: 5–8, 415.


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issue of authority in a sense belongs in an eschatological kingdom context, while the emphasis on personal authority betrays Christian interpretation.6

Similar considerations apply to ideas of Jesus emphasizing compassion rather than cult. This line of reasoning finds its roots in arguments of clas-sical prophecy against social injustice and personal greed. Quotations from the prophets were often used by early Christ-believers to defend their “lib-eral” practice or non-observance against Jewish opponents.7 While this type of argument in the Jesus tradition must often be classified as redac-tional, too, especially when utilized to denounce legal observance in gen-eral, it does typically represent Jewish attitudes during the Second Temple period, when taken in a relative sense. A good deal of halakic discussion, as reflected in later rabbinic texts, deals with prioritizing between weight-ier matters of law relating to human need and danger of life, and more mundane rules, when they come into conflict with one another. Is it likely that Jesus would have been part of such discussion, and that some of the friction between him and those opposing him was due to different ways of setting those priorities? Here, too, I will suggest that his particular type of restorative vision played a decisive role; the priority of the kingdom utopia at times relativized other concerns.

Diverging views between various Jewish groups depended on the inter-pretation and application of Scripture to various realities of life. One op-tion, not infrequently argued for by scholars, is that Jesus defended the plain meaning of Scripture against the paradosis, the traditional interpre-tation, the halakah, of his opponents.8 This can be argued in certain cases that will be dealt with more in detail below. But here, too, we may expect to see the results of early Christian interpretative activity, from a time and an environment in which negligence of halakic observance was defended with reference to the teachings of Jesus. In this study I will argue that at the level of the historical Jesus, Scripture versus tradition is rarely, per-haps never, the issue. Since there is seldom any plain meaning, in practical life everyone needs some sort of halakah.9 Although as a hermeneutical insight, this might seem a fairly modern statement, the truth of it is never-theless apparent in the Jesus tradition.

6 Or, to be more specific, an underlying urge to prove Jesus’ uniqueness and ulti-

mately to ground it ontologically. 7 Typical examples are the use of Hos 6:6 by Matthew (Matt 9:13; 12:7), and the ref-

erence to Isa 29:13 in Mark 7:6–7. Cf. how various allusions to Isa 29 were generally used in early Christian polemics (e.g. Rom 9:20; 11:8; 1 Cor 1:19; Col 2:22); see Westerholm 1978: 76.

8 This view is fairly common; for an example, see Avemarie 2010. 9 One convincing explanation for the evolution of halakah is simply the exigencies of

life. See Doering 2006: 16; Doering 2012: 452–54, in particular note 20 (p. 453) with further references.


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While it will be argued that disagreement between Jesus and his oppo-nents in many regards was an issue of conflicting halakic interpretations, this is not the whole picture. Conflicts may also have concerned scriptural commands in themselves. We cannot avoid questions about Jesus possibly opposing or modifying rules of the Torah, although without any notion of “abrogation.” This phenomenon comes to the surface in discussions where some kind of “creation principle” is used as an argument against the ex-press words of Scripture. It is also evident when humanitarian concerns are understood as taking priority over legal precepts. As we will see, these ways of arguing are in no way “un-Jewish.” Also, we should not necessar-ily expect to find one single principle governing all issues. We may well find evidence for Jesus’ motives and arguments varying from case to case.

The textual basis for my investigation consists mainly of the Jesus tra-dition in the Synoptic gospels. I will refer to some extra-canonical sources, although in most cases they add little new and are often thought to be sec-ondary, even if some of them might possibly provide independent attesta-tion. I will not be using the gospel of John to any extent, except for occa-sional references, although I admit that it contains certain material with a historical background. This is not because of any belief in the Synoptics being historical while John is theological; the Jesus traditions are all thor-oughly dyed with theological and christological ink. John, however, goes beyond the narrative christology of the Synoptics, by making Jesus’ su-premacy over the Jewish law an interpretative framework, which not only structures the narrative but also informs the sermons, all with the effect to demonstrate Jesus’ ontology. Such a Jesus hardly needs any motives other than his own self, making even John’s view of Jesus’ motives difficult to retrieve.

The time when Jesus could be construed apart from his Jewish envi-ronment is (almost) gone. Most scholars today are very conscious of past misinterpretations and envisage Jesus in a historical context that is thor-oughly Jewish.10 One might think that such changes would make a great difference to the portraits of Jesus that are painted. Interestingly enough this is not necessarily the case. There is another important factor involved, namely the role or type or root model assumed for the figure of Jesus.11 This model works as a lens through which much other evidence is inter-preted. It makes a great deal of difference whether Jesus is envisaged pri-marily as a teacher, a prophet or a charismatic. All three are equally possi-

10 This has been one of the characteristics of the so-called third quest, exemplified in

the titles of some of the seminal works since the 1970s, such as Vermes 1973, followed by several books; Sanders 1985; Crossan 1991; Meier 1991; 1994; 2001; 2009; Fredrik-sen 2000; Freyne 2004.

11 Cf. my discussion in Kazen 2008a.


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ble within a thoroughly Jewish context during the Second Temple period. There are, of course other possibilities and more nuances, but these three function as a starting-point. Jesus the teacher is easily seen in the light of subsequent rabbinic Judaism as a teacher of law, a maker of halakah, a responsible and reasonable discussion partner of Shammaites, Hillelites, Sadducees and even Essenes, although the latter are only possibly alluded to in the gospel tradition.12 Jesus the prophet is plausibly understood as a fierce and divinely commissioned critic of the establishment, including the religious authorities and the cult, representing an archaic, theocratic, or perhaps popular perspective on legal tradition and interpretation.13 Jesus the charismatic does not necessarily have to be so critical, but on the other hand moves about quite independently, allowing himself and others cer-tain liberties by virtue of his personality and inherent authority.14 We find that Scripture, interpretation, and authority are key elements relating to the roles or root models through which Jesus is regularly interpreted.

Although Käsemann’s interpretation of Jesus as “striking at the presup-positions and the plain verbal sense of the Torah and at the authority of Moses himself”15 meets little acceptance today, the tension between a rab-binic and a charismatic Jesus is difficult to avoid. Käsemann’s alternative to “the widely current picture of the pious Jew … studying the Scriptures day and night,” namely, a Jesus who “felt himself in a position to override, with an unparalleled and sovereign freedom, the words of Torah and the authority of Moses,”16 may still seem attractive, even if exaggerated. Doesn’t the prophet Jesus criticize the law? Doesn’t even the rabbi Jesus stretch legal interpretation beyond borders? And Jesus, the charismatic man of God, what licence does he need to deviate from all sorts of norms if an overriding authority is located in his own person? The latter role es-pecially may easily produce christological motives for Jesus’ conflicts on legal issues, which become implausible when assigned to the Jesus of his-tory. Many scholars, however, have a peculiar tendency to resort to claims of inherent authority, in order to explain Jesus’ stance on various issues and the conflicts evidenced by the gospel tradition. An autonomous and

12 For studies emphasizing Jesus as teacher or rabbi, or else emphasizing his activity

as legal interpreter, see among others Sigal 2007 (1986); Byrskog 1994; Chilton 2000. 13 Many scholars regard Jesus as a prophetic figure, without developing the idea to

any extent. Some emphasize his apocalyptic or eschatological prophetic role; see for example Allison 1998; Ehrman 1999; Hägerland 2011. For studies taking various per-spectives on a prophetic and critical Jesus, see for example Herzog II 2005; Horsley 2011; 2012; Casey 2010.

14 See for example Vermes 1973; Craffert 2008. A combination of the prophet and the charismatic is found in Borg 1984.

15 Käsemann 1964 (1954): 39. 16 Käsemann 1964 (1954): 40.


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authoritative Jesus is attractive and explanations from uniqueness easily take over when motives for Jesus’ conflicts are proposed.17

The Torah and its interpretations were being constantly negotiated and at times also rewritten by various groups in Second Temple Judaism. Au-thority was being claimed, denied and reclaimed through continuous de-bates and conflicts. Aharon Shemesh has recently outlined three areas of dissent around which much intra-Jewish discussion revolved: one is the relationship between divine revelation and human exegesis, another is the role of tradition or custom in relation to the explicit words of Scripture, and a third concerns the divine will as an expression of the nature of real-ity and the order of creation, as opposed to an arbitrary decree.18 All of these cases relate to questions of authority, but none of them demands an extraordinary type of authority being claimed by an individual and autono-mous leader figure. They suggest other motives, however, soon to be ex-plored more in detail. These are motives that are very similar to those sug-gested by the Jesus tradition. The conflict narratives in the Synoptic gospels imply or refer to issues such as divine will, the order of creation, scripture, interpretation, tradition and authority, all of which are identical with, or very similar to, the principal points of dissent identified by Shemesh as underlying the development of halakah. We thus find a high degree of correspondence between motives that figure in the Synoptic con-flict stories and these intra-Jewish conflicts and discussions during the late Second Temple period and Tannaitic times. This also means that the diffi-culties in disentangling Jesus’ motives from those ascribed to him by later followers involve two large methodological issues, neither of which is close to being settled or embraced by anything near consensus: evaluating the Jesus tradition and dating halakic traditions. Although the same issues of interpretation and authority figure both in the gospels and in other types of early Jewish literature, we are speaking of a period that covers several centuries. The need to distinguish early from late and to discern levels of textual and ideological development is a challenging task, which will be addressed further below.

1.2 The background: Jesus and the law

The relationship of Jesus to Jewish law has been discussed since the New Testament texts took shape. This is a result of the Christian church at-tempting to negotiate its relationship with its mother religion, on whose

17 Cf Meier 2009: 415 as already mentioned above, and similarly, but much earlier, Westerholm 1978.

18 Shemesh 2009.


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Bible it is dependent. It soon became clear that an increasingly Gentile church related differently from the main body of Judaism to Pentateuchal law as well as to those subsequent interpretations that were continuously added and some of which were systematically shaped into texts from the time of the Mishnah and onwards.

The church came to explain and justify these differences by distinguish-ing between ritual and ethical commands. Ritual commands, including sacrificial laws as well as laws of purity, were rejected with the help of christological or soteriological arguments; Jesus was simply understood to have “fulfilled” these parts of the mosaic law. Ethical principles, however, were still regarded as binding, although their application often depended on re-interpretation.

However, this picture is far too simple. While certain practices, such as circumcision, were soon abandoned, at least by Gentile Christians, other customs and rules were held on to much longer and a number of ritual rules were spiritualized, rather than discarded. Which parts of the law were considered to be valid, and in what manner, could be a matter of dis-cussion. The definition of ethical in contrast to ritual rules is, moreover, bound to be somewhat arbitrary; our understanding of ritual versus moral-ity, or convention/custom versus ethics, is context- and culture-dependent, as we are increasingly realizing today.19

In addition to abandoning, selecting and re-interpreting inherited rites and rules, Christians soon developed their own. Sometimes, Jesus’ own attitude and behaviour would be appealed to as part of the motivation for this development, or at least to explain the process. This has been the case with theological paradigms that combine christological, soteriological and supercessionist views to the effect that Jesus is understood to break with, supercede or fulfil the Jewish law in one way or another, thus making it obsolete. Such understandings lie behind many past attempts by biblical scholars to deal with “Jesus and the law.” Today the field is changing. While it is generally acknowledged that Jesus had conflicts with his con-temporaries over issues of law or legal interpretation, many no longer re-gard them as so serious as to have caused his condemnation and death, and few would today suggest that Jesus rejected the Torah in principle.

The Jesus tradition gives no easy answer to the question of Jesus atti-tude to Jewish law. According to Matthew’s gospel, Jesus says that he has come not to abolish the law but to fulfil it. He also claims that no part of the law will pass away before everything has happened.20 The meaning of these sayings is hardly obvious, since no explicit interpretation is given. Furthermore, in the Sermon on the Mount, these words are followed by the

19 For further discussion, see Kazen 2011: 20–31. 20 Matt 5:17–18.


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so-called antitheses, in which Jesus quotes Torah commandments as well as halakic rules, followed by “But I say to you.”21 This has been under-stood to mean anything from a common Jewish manner of discussing legal interpretation to an abrogation of law in principle or an implicit claim for divinity.

Regardless of how these words are interpreted, they are part of the Gos-pel of Matthew and thus reflect Matthean redaction and theology. From what we know of Matthew’s eclectic and thematic way of construing his text from previous traditions, we must acknowledge that the overall pic-ture that is given is his own, regardless of whether these particular words originate with the historical Jesus in whole or in part; in Jesus’ own con-text their meaning need not have been the same as in Matthew’s gospel.22 The gospels of Mark and Luke give somewhat different pictures of Jesus using partly the same or similar material. All three seem to view him as a “Christian” although to varying degrees as a Jew, too. It was this Jewish identity that more or less faded away from Christian consciousness as time went by.

The history of scholarship on Jesus and the law follows to a large ex-tent the development of the quest for the historical Jesus – a story that has been told and retold enough times not to be repeated again here, apart from a few relevant observations. In many of the “lives” of Jesus from the nineteenth century, Jesus is portrayed as a liberal, in contrast to legalistic Pharisees and enthusiastic apocalypticists. His Jewish traits are hardly visible. Albert Schweitzer is usually thought of as striking a decisive blow against this era of Jesus research by his seminal study in 1906.23

In spite of the fact that the first half of the 20th century is sometimes called the “no-quest” period,24 we do find scholars working on the histori-cal Jesus during this time, too. Some of the most prominent of these, such as Claude Montefiore,25 Joseph Klausner26 and B. H. Branscomb, con-sciously interpret Jesus within Judaism. The two former are often men-tioned as examples of Jewish scholars who, unfortunately, were not given much of a hearing in their time. It is interesting, however, to see how much of Branscomb’s treatment also actually predates or prefigures what has since then become a major approach in the so-called Third Quest. Says Branscomb:

21 Matt 5:21–48. 22 For a thorough and decidedly theological study on the Torah in Matthew, with a

focus on Matt 5:13–20, see Deines 2004. 23 Schweitzer 2000 (1906). 24 Cf. Wright 1996: 21–25. 25 Montefieore 1927. 26 Klausner 1925.


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The divergence of alleged sayings of Jesus concerning the law preserved in the Synoptic Gospels is well known. Not only does one find expressed both extreme positions but a number of intermediate ones as well. One can construct a sort of chromatic scale made of sayings of Jesus in which all the notes are struck from the complete rejection of the law to its complete affirmation. … the answer to the problem cannot be gained by easy gen-eralisations nor a priori opinions. One must see clearly the point of view as to the law which was accepted unquestionably in Jesus’ day, recover the particular bias of our sev-eral Gospel writers, and then patiently examine in detail the evidence as to Jesus’ posi-tion which has been preserved.27

After having surveyed the place of the law in contemporary legal thought and Jesus’ attitude to the law in the synoptic gospels, including Q, Branscomb concludes that “Jesus’ teachings come from the main stream of Jewish religious life,”28 but that he anticipated in time the rabbinic move-ment,29 and opposed some of the halakic developments or priorities of his time. Branscomb suggests that Jesus neglected certain rules when they interfered with human need, since he regarded them as “subordinate to that primary duty.”30 His attitude towards written and towards oral Torah was similar, which brought him into conflict with the Pharisees, although he was equally in conflict with the Sadducees, and the latter should be seen as responsible for his death.31 Branscomb emphasizes that Jesus’ strength-ening of the ethical aspect of Judaism “did not rest upon any opposition toward the formal or ritual side of the religion”; he did not attack ritual practices,32 nor did the earliest Christians attack the law, although they might have been careless about it.

Branscomb has earned his place as a forerunner of attitudes and inter-pretations that did not get a proper hearing until several decades later. To some extent, however, Branscomb does see in Jesus “an attitude which was not characteristic of Judaism”33 and in the end he understands the dif-ference between Jesus and Pharisaism as a difference between regarding the Torah in terms of binding law, which Jesus at least implicitly denied, and understanding it as a set of overarching principles.34 There are simi-larities between this view and some early Third Quest approaches, such as those of Robert Banks or Stephen Westerholm,35 approaches that are se-verely criticized by others. Philip Sigal, for example, accuses Banks for

27 Branscomb 1930: 2–4. 28 Branscomb 1930: 256. 29 Branscomb 1930: 261. 30 Branscomb 1930: 264. 31 Branscomb 1930: 265–66. 32 Branscomb 1930: 266. 33 Branscomb 1930: 252. 34 Branscomb 1930: 268–71. 35 Banks 1975; Westerholm 1978.


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clinging to a fruitless and faulty conception of a legalistic Judaism, in which all requirements would have been considered as of equal impor-tance, in spite of the fact that Banks begins with an outline of torah as “in-struction” requiring interpretation and expansion.36 This aspect surfaces in Westerholm’s study, too, which concludes that Jesus did not regard the Torah as statutory law. In Westerholm’s case, the alternative is, however, rather one of inner disposition.37

I have always been hesitant about the claim that the 1970s and 1980s brought a completely new turn in historical Jesus research. At least with regard to how exegetes approach early Judaism it is difficult to see clear demarcations between one period and another. The more recent phase of scholarship on the historical Jesus grew out of previous phases, and New Quest assumptions and prejudices were sometimes taken over, at least ini-tially.

However, we are going too fast. In spite of their almost prophetic char-acter, early attempts to interpret Jesus within the Judaism of his time had little influence on the New Quest, at least in its German Gestalt. With Käsemann’s famous lecture as its starting point, the New Quest was char-acterized from 1950 onwards by a strong dependence on the criterion of dissimilarity for distinguishing “authentic” words of Jesus from layers of tradition and redaction. This approach resulted almost by definition in pic-tures of Jesus in opposition to Judaism.38 While scholars like David Daube and W. D. Davies during the 1950’s explored and emphasized the rela-tionship between the New Testament and Rabbinic Judaism,39 and al-though James Robinson, in 1959, suggested the presence of a considerable material “whose historicity is conceivable in terms of Jesus’ Jewish Pales-tinian background,”40 many scholars tended to interpret Jesus against Ju-daism rather than within it. These were predominantly post-Bultmannian German exegetes, for whom Jesus did not ground his ethics in biblical law, but rather in the immediate will of God, which he claimed to know, and by which every biblical command should be tested.41 The present vol-ume will make no attempt to trace the history of this theological trajectory

36 Sigal 2007 (1986): 17–23. 37 Westerholm 1978: 128–32. As we will see in the final chapter, an interpretation of

Jesus’ attitude as based on an understanding of torah more as instruction or guidance and less as “binding” or “statutory” law, can be argued. This, however, is nothing uncharac-teristic of Judaism, as Sigal points out. For a discussion of the process of “re-characterization” of torah in Second Temple Judaism, see LeFebvre 2006.

38 Cf. Holmén 1999; Theissen and Winter 2002 (1997). 39 Cf. Daube 1956; Davies 1955. 40 Robinson 1959: 104. 41 Banks 1975: 5, referring to Kümmel 1934, Schoeps 1950, and Niederwimmer

1966; cf. Bultmann 1952 (1948): 11–22.


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any further or to analyze its various components. Suffice it to say that ideas of the historical Jesus opposing or abrogating the Torah in princi-ple,42 assume an understanding of law that is to a large extent abstract. When we deal with the relationship of the historical Jesus to Jewish law, we are discussing very concrete matters, such as tithing, vows, fasting, Sabbath observance, purity and divorce rules, which involve both biblical law and subsequent interpretative tradition.43

In spite of earlier attempts, it was not until the 1970’s that new studies that emphasized Jesus’ Jewishness managed to make a decisive impact on a considerable number of biblical scholars. Geza Vermes, with his books on Jesus, beginning with Jesus the Jew in 1973, argued for Jesus as a Gali-lean ḥasid. E. P. Sanders’ studies, first in Paul and Palestinian Judaism in 1977, then followed by Jesus and Judaism in 1985, were crucial in pro-moting the idea of a non-antagonistic Jesus within a non-legalistic Juda-ism.44 Others continued on the same track, and the compass needle has swung, although in a number of disparate directions. Influenced by sociol-ogy and cultural anthropology, biblical scholars have painted pictures of Jesus as a Galilean cynic, a counter-cultural sage, a Mediterranean peas-ant, a marginal Jew, an eschatological prophet, a charismatic healer, a Pharisee and a Rabbi, to name but a few.45 Most of these pictures appeal in one way or another to Jesus’ Jewishness. Most of them have been accused of being nothing more than theological constructs.46 Some more obviously than others seem to suit a modern agenda. Some only superficially relate Jesus to the world of Second Temple Judaism.47 Many do, however, seri-ously attempt to place Jesus somewhere within the Jewish diversity found in first century Palestine, a diversity that later coalesced, after the war and during the second century, into Rabbinic Judaism.48

One important approach to the diversity of early Judaism is the study of halakah. Although this is a rabbinic term, the study of apocryphal and apocalyptic texts, as well as of Philo and Josephus, has long since made it clear that aspects of legal interpretation and practice were discussed and

42 Käsemann 1964 (1954): 38–45; cf. Lambrecht 1977: 76–77. 43 Cf. the topics discussed by Westerholm 1978. 44 Sanders 1977; 1985. 45 This is not the place to list examples and categorize the flood of historical Jesus lit-

erature. See major comprehensive works, such as Theissen and Merz 1998 (1996), or Dunn 2003.

46 Cf. Henaut 1997. 47 See the criticism of Meier 2009: 40–47. 48 For a seminal discussion of the “coalition” that emerged out of the diversity of the

Second Temple period, see Cohen 1984. For discussions of Jewish sectarianism and diversity, see for example Saldarini 1988; Baumgarten 1997; Grabbe 2000, especially 183–209.


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developed all through the Second Temple period, long before the forma-tion of rabbinic texts. Since the Dead Sea Scrolls were found and pub-lished, it has become increasingly obvious that alternative forms of what could rightly be called halakah were present at an early time,49 and since the delayed publication of the numerous Cave 4 fragments it is also evi-dent that in some areas such interpretation and instruction was present in advanced stages of development, although different in form and genre as compared to the Mishnah.50

The prospects for studying gospel traditions about Jesus from a halakic point of view have thus increased, and any study of the historical Jesus and the law needs to take into consideration concrete issues of legal inter-pretation. Within the context of Second Temple Judaism, a Jesus in sharp opposition to either torah or halakah in general or in principle would sim-ply be an irrelevant figure. We would rather expect Jesus in this context to have participated in such intra-Jewish conflicts over various issues of to-rah and halakah as are known from other ancient sources.

A number of studies of Jesus’ attitude to various points of halakah have been published during the last decades. Not all of these will be reviewed here; an excellent 70-page research overview has recently been provided by Peter Tomson.51 Some of the most relevant studies from the latest dec-ades will, however, be discussed in the subsequent chapters on the Sab-bath, purity, and divorce. The most recent study dealing with Jesus’ legal conflicts is John P. Meier’s fourth volume of A Marginal Jew.52 Meier discusses four topics: divorce, oaths, Sabbath observance and purity, as well as the love commandment. As with all of Meier’s work, this is a comprehensive and detailed study, leaving little aside. However, my inter-pretation differs from Meier’s on a number of points. Most importantly, I do not find the classical approach to the historical Jesus by way of criteria nearly as reliable as does Meier. Although he has developed the New Quest criteria, mainly by employing a criterion of “embarrassment” as a useful tool,53 his methodology in a sense still belongs to an earlier phase of historical Jesus research. As will become clearer below, I find a differ-

49 For a discussion of the presence of halakah during Second Temple times, see Meier

2003a; Meier 2009: 39–40, 63–67 (notes 62, 63); Tomson 2010a: 137–40. 50 Previously published texts, such as the Damascus Document (CD), the Community

Rule (1QS) and the Temple Scroll (11Q19), were complemented by texts with primarily halakic contents, e.g. 4Q251, 4Q274–278 (4Q Tohorot), and not least 4QMMT, which has been crucial for understanding halakic diversity and the character of ongoing halakic discussion among various groups, well before the fall of the temple and Yavnean devel-opments. See Qumran Cave 4, V (DJD 10) and Qumran Cave 4, XXV (DJD 35).

51 Tomson 2010a. 52 Meier 2009. 53 For further discussion, see below, section 1.4.

1.3 The conditions: prospects of history

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ent approach, also involving a more precise understanding of the halakic development during the end of the Second Temple period, more fruitful for judging the relevant Jesus traditions, and for relating them to the his-torical context and to early Christian interpretation and gospel redaction.


The nature of history and historiography is a subject constantly under de-bate.54 I gave this some thought in my book on Jesus and purity halakah,55 and will try not to repeat myself too much here, although this cannot be entirely avoided.

History has never been a matter of isolating purported facts only. His-tory is an unavoidable narrativization of past events. Human beings are dependent on narrativizing their existence – without narrative, discon-nected experiences would become quite meaningless to us. This is true of history, too; it needs a narrative framework. We can ask questions about single details, whether they are reasonably historical, traditional, redac-tional, legendary or mythical. But even simple components of the past consist of a number of still pictures being joined into an “event” by a ru-diment of narrative, inherent in our language or thinking. Without narra-tive there is no communication of meaning. History is “a narrative account … that we historians write to express an understanding of past events … based upon our interpretation of the traces … that have survived from those past events,” as Robert Webb puts it.56

We thus have to be pragmatic in dealing with history. It must be possi-ble to ask and attempt to answer factual questions about singular details, but also to provide plausible explanations for chains of events within par-ticular contexts. We must allow ourselves to deal with both, since only through historical narrative are we able to suggest the meaning of events.

Few people today believe in total objectivity, and this has ultimately to do with our understanding of the human condition, i.e., our capacity for interpreting the world at large. We receive all input via our sense-perceptions, and depend on our bodily experiences and mental frames of reference in order to interpret anything, which means that each interpreta-tion is contextual.57 Hence there is no pure objectivity, as most people

54 For a recent and more comprehensive discussion, see Webb 2009: 12–38. 55 Kazen 2010a (2002): 34–40. 56 Webb 2009: 13–19; quote from p. 16. 57 This is the kind of general understanding that lies behind Le Donne’s three prem-

ises: that perceptions must be interpreted in order to be remembered, that this takes place


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today will admit. We have no pure experiences and individual perceptions are always treacherous. Nevertheless, they are our only avenue to con-scious reflection, our only connection to the outside world. Our experience tells us that in spite of their weaknesses our sense-perceptions are gener-ally reliable, since we test them and confirm them in constant interaction with each other. In Jesus and Purity I referred to Mark Bevir’s way of ex-pressing this situation, which I find quite helpful: objectivity should be understood as criticizing and comparing “rival webs of interpretations in terms of agreed facts.” These facts are to be understood as pieces of evi-dence accepted by most people.58 Objectivity simply becomes a matter of intellectual honesty, engaging in honest discourse about the explanatory value of various hypotheses and the validity of presuppositions and data. This process will never become a closed circle as long as such a discourse is upheld. It is thus reasonable to embrace a common-sense “practical real-ism,” which strives for accuracy, while fully acknowledging the tentative character of all knowledge.59

This applies not least to historical knowledge. The nature of historiog-raphy is a field of its own and cannot be discussed in full, only touched upon briefly. Most historians would probably agree with Edward Carr’s basic understanding of history as a constant dialogue between past and present,60 or with John Gaddis’ view that we somehow must derive past processes from present structures by combining logic and imagination.61 In doing this, we must remind ourselves that it is not the past events them-selves, but the surviving traces of these events, that we interpret by those narrative accounts that we call “history.”62

Such awareness influences the way in which we relate to the past and the type of claims we make for historical interpretations, now that post-modernism has made innocence impossible. There is no way back to Ranke’s “wie es eigentlich gewesen,”63 but does this mean that we are no longer trying to understand what happened, how it happened or why it

at every stage of the tradition, and that historians can never interpret an uninterpreted past. Le Donne 2009: 17–39.

58 Bevir 1994: 332–33. 59 Appleby, Hunt and Jacob 1994: 247–51, referring to Hilary Putnam. See also

Webb’s discussion of critical realism (2009: 28–32). 60 Carr 1961: 74. 61 Gaddis 2002: 41. Gaddis suggests that historians, like geologists and paleontolo-

gists, must deduce irreproducible processes from surviving structures, and like biologists and astro-physicists, have to deal with contradictory or ambiguous evidence. Logic and imagination are the tools of all scientists who work outside of laboratories, for conduct-ing thought experiments. Cf. Wedderburn 2010: 22.

62 Webb 2009: 14–16. 63 Ranke 1874 (1824): vii.


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happened? As long as people are engaged in the historical enterprise, it will not do to offer arbitrary narratives of possible pasts. That is a task for fiction or fantasy.

There are some related debates that when boiled down might turn out to be straw men. They mostly concern the use of language. One is the use of the term “re-construction,” which by some scholars is thought to be mis-leading when describing historiographical activity. In the field of histori-cal Jesus studies this has been argued by, among others, Jens Schröter, who distinguishes reconstruction from construction of history; the latter, not the former, is the goal of historical research.64 As Alexander Wedder-burn has pointed out in a thorough discussion of Schröter’s view on his-tory,65 reconstruction in Schröter’s mind seems to come close to the Ger-man “Wiederherstellung” or the English “restoration.” Wedderburn compares it to a police investigation, which by no means aims at re-creating the past, even when a “reconstruction” of the crime is enacted. No one would imagine themselves to be seeing the original event, only a hy-pothetical interpretation of it. Similarly with historical reconstruction: who would seriously think that historians attempt to re-create the past? Gaddis suggests that representations in the form of narratives are a kind of simulation:

They’re reconstructions, assembled within the virtual laboratories of our minds, of the processes that produced whatever structure it is we’re seeking to explain. They vary in their purposes, but not in their methods. For in all of them, we ask ourselves: “How could this have happened?” We then proceed to try to answer the question in such a way as to achieve the closest possible fit between representation and reality.66

Wedderburn also suggest that dropping the “re” in “reconstruction” in fact causes more problems than it solves, since this “re” is what refers the his-torian’s construction back to history, “with the claim that it is meant to be an account of that past and not some fanciful invention at the historian’s whim.”67 I have never fully understood the objections to the use of the term “reconstruction” and Wedderburn provides convincing arguments for keeping it. Why should anyone have to associate “reconstruction” with a naïve or thoughtless view of history when the word is mostly used with discrimination in so many other contexts?

Another discussion, also focusing on language but this time on preposi-tions, asks whether historical enquiry takes us behind the texts or rather moves in front of them. Again, the debate is well illustrated by Wedder-burn’s analysis of Schröter, although the latter is, just as in the previous

64 Schröter 2002: 166–68; 2007: 37–54. 65 Wedderburn 2010: 13–32. 66 Gaddis 2002: 105. 67 Wedderburn 2010: 26.


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case, by no means alone in being reluctant to speak of history as some-thing behind the sources.68 The discourse is, however, problematic. The meaning of a metaphorical localization in relative space, indicated by be-hind and before, or in front of, is unclear. On the one hand, in front of can be understood to indicate an awareness of the fact that when historians provide alternative interpretations to those expressed through the texts, they actually do so by building on and interpreting these very texts in or-der to construct new pictures and new narratives. Since their alternatives are so dependent on the texts, historiography could in a sense be said to take place in front of the text. In this way, the impossibility of “recon-structing” history in the sense of resurrecting the past is admitted. The historian can only create new representations, interpretations and narra-tives. On the other hand, the whole undertaking of doing history – as dis-tinct from writing fiction – is based on the belief that some of these con-sciously construed alternative interpretations or reconstructions may have a closer correspondence to events behind the text than the narratives and interpretations conveyed by, or through, the texts themselves – which in every case are necessarily interpreted, even if unconsciously, as soon as they are read. To deny historiography the possibility of suggesting and working with a world behind the sources is tantamount to dismantling the discipline altogether. The thought experiments that achieve this must in a sense take place in front of the texts, since the texts provide the material for analysis and interpretation. Commenting on the use of logic and imagination by historians, Gaddis says, referring to Collingwood:

It’s in this sense, I think, that R. G. Collingwood was correct when he insisted on the inseparability of the past from the historian’s present: the present is where the thought experiments take place. This doesn’t mean, though, that the past didn’t exist, for without it there’d be nothing to experiment upon.69

While history may take place in front of the sources we use, it is definitely concerned with what is behind them. Historians are committed to inter-preting the past. In historical Jesus research this means trying to under-stand the different factors that have given rise to the Jesus tradition.

Tradition has been explained as the result of the continual negotiation between present social realities and memorialized pasts, and in the case of the Jesus tradition “an abbreviation for the countless transactions between sacralized past and actual present vital to the life of the community.”70 In recent years there has been a renewed interest in the role of memory in the development of the Jesus tradition, and social or collective memory theory

68 Schröter 2001: 33, 35. 69 Gaddis 2002: 41. 70 Kirk and Thatcher 2005: 33.


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has come to play an increasing role for a number of historical Jesus schol-ars.71

Social memory theory is usually traced back to Maurice Halbwachs, who published his work in French in 1925. Halbwachs argued that all re-constructions of the past are based on the present and constrained by so-cial frameworks.72 Anthony Le Donne points out that strictly speaking, “social memory” describes how group ideologies inform individual memo-ries, while the term “collective memory” refers to the way in which memo-ries are shared and passed down by groups. In actual fact, however, the two are not always kept apart, and it could be debated whether the distinc-tion between social and collective memory is relevant for our present pur-pose.73 Samuel Byrskog lists other terms as well, as examples of “a con-fusing variety of terminology,”74 most of which are often used synonym-ously.

Although social memory provides a cultural and narrative framework for individuals,75 neither social, nor collective memory focuses on the role of the individual, or on individual memory, but rather on the collective, and its influence, i.e., on “tradition.” This creates an unresolved tension within the field of research that uses memory theories in relation to the gospels. The growing interest in social memory theory goes together with an increasing interest in the role of orality for the development of the Je-sus tradition. This is a full field of its own which cannot be accounted for here. It seems to me, however, that the focus on memory attracts people from very different camps. On the one hand there are those whose primary interest lies in how memory works, its mechanisms of distortion or refrac-tion, and who often turn out to be quite sceptical about the possibility of grounding authenticity in individual memory. The concept of memory dis-tortion, or, as Le Donne recently put it to avoid massive misunderstanding, memory refraction,76 can help us understand how tradition is formed, rein-terpreted, and made to conform to narrative, convention and language. On the other hand there are those who mainly refer to memory for apologetic purposes, trying to secure the gap between Jesus and tradition with the help of eye-witnesses. I apologize for this crude classification and I do not

71 See for example Le Donne 2009; Kirk 2005; Kirk 2011; Kirk and Thatcher 2005;

Bauckham 2006; Byrskog 2008; Byrskog 2009; Byrskog 2010: 451–56; McIver 2011; Keith 2011a; 2011b.

72 Halbwachs 1992 (1952): 37–189 (especially 37–40, 182–83). For a summary of Halbwachs’ theories and a discussion of social memory, see Le Donne 2009: 41–59.

73 Le Donne 2009: 42, note 8. 74 I.e., family memory, local memory, popular memory, public memory, relational

memory, and cultural memory (Byrskog 2006: 321–22). 75 Byrskog 2006: 324–25. 76 Le Donne 2009: 50–52.


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wish to convey the impression that I consider the study of memory or the role of eye-witnesses in Antiquity unimportant or irrelevant. The point is that I hesitate over the degree to which memory studies can help us with some of the particular problems that surround the study of the historical Jesus.77

The hope of some interpreters of finding in social memory theory a means to establish the historical reliability of the gospel tradition, proba-bly explains some of the confusion surrounding the relationship between individual and social or collective memory. This can be detected for ex-ample in Robert McIver’s recent study.78 Employing insights about mem-ory, bias, and forgetfulness from psychology and cognitive science, McIver notes that ”flashbulb” memories seem to be no more stable than other personal event memories.79 He suggests, however, that episodic memory ought to display a relatively high degree of long-term retention, similar to what can be found in memory retention research, where forget-ting curves level out and become stable with time.80 By combining data about individual memory and forgetfulness with a discussion of collective memory, McIver ends up with astonishingly confident conclusions about the general reliability of the gospel tradition, to the effect that the burden of proof is shifted to those who would question the historicity of a saying of Jesus.81 As Zeba Crook has pointed out, however, in a trenchant criti-cism, McIver’s analogy with memory studies involving material that is consciously learned rests on the unproven assumption that disciples were taught to repeat and memorize Jesus’ teaching.82 Moreover, his under-standing of collective memory does not really correspond to the normal usage of the term; for McIver “collective memory seems to refer to groups of people remembering things individually,” while the group corrects in-dividual mistakes.83 However, this is not how collective memory is gener-ally understood. “McIver uses memory theory to argue that the ipsissima verba Jesu can be found in the Gospels. Such a move is neither consistent with the procedure of memory theorists, nor is it replicated by them.”84

As Le Donne points out, Halbwachs did not really think that his ap-proach to memory could become a tool for historical reconstruction. Halbwachs did not see the past as preserved in the memories of individu-

77 For a recent critique, see Foster 2012: 193–202. 78 McIver 2011; cf. McIver 2012. 79 McIver 2011: 41–58. 80 McIver 2011: 21–40. 81 McIver 2011: 183–87. 82 Crook 2012: 197. 83 Crook 2012: 200. Cf. the views of Kenneth Bailey (1991) and the critique by Theo-

dore Weeden (2009). 84 Crook 2012: 201. Italics added. See also Crook 2013a.


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als, but as something reconstructed on the basis of the present. He was more interested in society’s effects on individual memory than in the reli-ability of individual memory within a social context.85 It is true that Halbwachs’ ideas have been developed in different directions, and that not everyone shares the scepticism of a “presentist” approach to the survival of genuine historical reminiscences in social memory. Keith describes the criticism from a “continuity” perspective and gives an overview of the debate.86 He suggests that

according to the continuity perspective, it is memory’s inherently social nature that en-ables it to preserve the past to an extent by transcending individual existence. Thus … memory is a much more complex social process of mutual influence. The present does not simply run roughshod over the past; the present acts on the past while the past simul-taneously acts on the present.87

It is quite reasonable to expect traces of history to be preserved in social memory. However, this does not mean that collective memories always, or usually, derive from individual memories. They may do so, but not neces-sarily.88

When the role of memory for the reliability of the gospel tradition is discussed, it is individual memory that is usually sought for.89 Individual memory works in a similar way as does social memory, “combining past recollection and present imposition.”90 One of Le Donne’s main points is that all memory is distorted, or refracted, and that this belongs to the char-acter of memory itself: “Distortion is, most commonly, a natural and be-nign function of memory selection.”91 Le Donne does not actually say that memory is distorted but rather that all memory is memory distortion.92 This sounds ambiguous, and I think he wants to say that remembering is always a secondary interpretation of primary experience. One might want to argue that experience itself is a secondary interpretation of primary stimuli from the sense-perceptions. The term “distortion” thus becomes problematic, not because of emotional or ideological resistence, but be-cause it seems to imply that there could in fact be a pure, original, or au-

85 Le Donne 2009: 41–43. 86 Keith 2011a: 57–61. 87 Keith 2011a: 58. 88 This has been recently pointed out by Crook 2013a; 2013b. 89 Cf. the first six points in Allison 2010: 1–7. 90 Le Donne 2009: 47. 91 Le Donne 2009: 50. 92 Le Donne 2009: 51.


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thentic memory from the beginning, which is actually being changed sub-sequently.93

Be that as it may, although I can see that there may be a path from indi-vidual to social memory, I think that social memory theory is mainly equipped to deal with what we generally call tradition, and its develop-ment. For filling the gap between Jesus and tradition we may need differ-ent tools. Noting that Halbwachs did not necessarily derive collective memory from “actual memories,” Le Donne comments: “One might seri-ously question whether the term ‘memory’ doesn’t become a misnomer in this case. Halbwachs seems to use ‘collective memory’ in the same way that others use the term ‘tradition’.”94 Similar questions might, however, be put to Le Donne’s own work, as when he argues that “memory often survives by being articulated into narrative form,”95 or when he talks of Matthew’s commemoration of Elijah being localized within John the Bap-tist’s perception.96 When Le Donne triangulates in order to reconstruct refraction trajectories for the Elijah typology with regard to John the Bap-tist,97 this is to me no longer an example of memory refraction, or of memory as refraction of experience, but of the evolution of a tradition or the development of an idea. The terminology assumes a definition of memory that is wide enough almost to embrace a history of ideas.

Chris Keith has recently pointed out that when Bultmann first suggested the use of dissimilarity as a criterion, it was strictly speaking for the re-trieval of the pre-literary form of similitudes, i.e., the state of earlier tradi-tion, rather than the actual words of Jesus.98 This seems, however, to be the case with a “Jesus-memory” approach, too. Even if it is conceded that the Jesus tradition cannot simply be separated into authentic core and sub-sequent accretions, as if an authentic original would have ever existed, and even if it is agreed that no historical traces can be transmitted except through interpretations (whether of texts or artefacts),99 this does not transform social memory into anything much beyond what we generally call tradition.

93 The idea of a “false dichotomy between veracity and distortion” is exactly what Le

Donne (2009: 51) wants to avoid, and it is exactly for this reason that “memory distor-tion” or “memory refraction” become problematic expressions for the insight that mem-ory is not identical to what happened, but results from a processing of experiences; it is this processing that gives rise to memory.

94 Le Donne 2009: 42, note 13. 95 Le Donne 2009: 77. 96 Le Donne 2009: 78–79. 97 Le Donne 2009: 85–86. 98 Keith 2011a: 38–39. 99 Cf. Keith 2011a: 61–65.


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The similarity between a social memory approach and the perspective of the form critics has recently been discussed by Paul Foster, in his cri-tique of various dead ends in historical Jesus research.100 According to memory studies as well as to form criticism, says Foster,

any underlying historical connections have either been subsumed or heavily transformed to serve contemporary community needs. Thus the reshaping of traditions functions to create a social memory that addresses community concerns, and the task of reconstruct-ing the historical reality behind these reformulated memories may be unachievable due to the degree of mutation that past events have undergone in the service of contemporary needs.101

But while the form critics applied their theories to concrete textual tradi-tions, Foster complains that memory studies usually stay on a general level, affirming historicity broadly, although he admits there are some ex-ceptions, where social memory theory has been applied in more detail to specific issues.102 The question is, however, whether the resulting pictures are so different from those that more traditional approaches would pro-duce?103 Foster goes so far as to claim that “insights from community memory theories have not been shown to add anything to the interpretative task.”104 While this may be contested, the comparison between memory theorists’ and the form critics’ understanding of the shaping and function of a “remembered event” or a tradition within a community, is highly rele-vant.

Where social memory theory may provide insights into the Jesus tradition is by analysing how such memories were received, and by reflecting upon what their pastoral or peda-gogical function might have been in early believing communities – but surely this is quite similar to tracing the Sitz im Leben of a tradition…105

Seen from this perspective, the concept of memory comes close to that of tradition, to the extent that the former could be seen as just another way of speaking of the latter. That tradition also comes very close to social mem-ory for some of the advocates of social memory theory is clear from Alan Kirk and Tom Thatcher’s essay on “Jesus Tradition and Social Memory.” As already mentioned above, they characterize tradition as a negotiation between, or abbreviation of, past and present. This is also a fitting descrip-tion of the concept of social memory. According to Kirk and Thatcher

100 I.e., memory, orality, and the fourth gospel. Foster 2012. 101 Foster 2012: 197. 102 Foster (2012) mentions Thatcher 2005. To this we should add studies such as Le

Donne 2009; Keith 2011a. 103 Foster 2012: 198–99. 104 Foster 2012: 202. 105 Foster 2012: 202.


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[t]he dynamic nature of this interplay between past and present complicates attempts to isolate so-called authentic elements of memory from their interpretive reception in any given unit of tradition. The notion that traditional materials embedded in the Gospels can be analytically and cleanly separated into two piles – authentic remembrance and fabri-cated elements – is predicated upon questionable views of the operations of memory and tradition.106

Here, as with form criticism, there is a risk of misusing the tool. Neither memory, nor form or function, can secure “authentic” material from the rest. Social memory theory, like form criticism, can only help us to discuss the development of tradition and search for its earlier stages. Like form criticism, it underlines the fact that all traditions are shaped by concerns “present” for those who formulate or transmit them.

Memory approaches may also make us more aware of the problems in-volved in a traditional approach, which attempts to isolate “genuine” ma-terial. Social memory theory reminds us that there is no access to history except through such material. Psychological memory research, on the other hand, shows the general unreliability of individual memory, as al-ready mentioned. Memory theories and memory research of various kinds may thus be used and misused to discredit or to affirm the reliability of the gospel tradition, but in the end will not bridge the gap between historical event and tradition. They may, however, further our understanding of the historical development of the Jesus tradition, including its oral stages.

1.4 The methods: criteria, critical analyses, and historical hypotheses

In the present study I have chosen Sabbath observance, purity rules and divorce practices, as three of the most important areas of discussion and dissent within Second Temple Judaism. They are all dealt with in rabbinic halakah, all are subject to elaborate halakic discussion in various Qumran texts, and all are found to be at the centre of conflict between Jesus and some of his contemporary opponents. The present study attempts to define and analyze the motives and arguments that are expressed, implied or sug-gested to lie behind Jesus’ stance or behaviour in these conflict settings. How can various motives be assigned to different textual levels or levels of tradition in the Synoptic gospels: those of the gospel authors, early Christian tradition, and the historical Jesus? Although there are previous, classical studies of the conflicts stories, such as those by H.-W. Kuhn and Arland Hultgren,107 none has had a focus on the historical Jesus.

106 Kirk and Thatcher 2005: 34. 107 Kuhn 1971; Hultgren 1979.


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Dissenting views on issues of the Sabbath, purity and divorce are part and parcel of early Judaism, especially as we know it since the publication of all the texts from Qumran. On the surface, Jesus is easily brought into dialogue with rabbis, Qumran sectarians, Philo, Josephus, and some of the authors of a number of apocryphal and intertestamental texts. Below that surface it is we as readers and interpreters who construe such a dialogue – at least when it comes to Jesus’ part in it. Most of the time, that dialogue could just as well be construed as taking place between the authors of the texts that we call Mark or Matthew, or hypothetical sources like Q, and those varying Jewish viewpoints that are represented by a number of roughly contemporary texts. On what grounds then can one claim that a conflict, not to speak of particular motives associated with such a conflict, should be ascribed to Jesus himself and not to some followers of his, using him as a mere pretext?

This is where the classical criteria of authenticity that were developed in New Testament research, are usually employed, the principal ones being dissimilarity, multiple attestation and coherence. The problems with these criteria, in particular the criterion of discontinuity or dissimilarity, have been much discussed during recent years, and I will not attempt at a full discussion of the general issues.108 These criteria are, however, still heav-ily relied upon, although often with various modifications. Meier, whom I regard as an important representative of a New Quest criteria-based ap-proach, has developed the art, mainly by emphasizing the criterion of “em-barrassment” as a primary tool.109 This can be seen as a variant of the cri-terion of dissimilarity, but is different in that there is no real discontinuity with Judaism involved110 and the focus is not on discontinuity with early Christianity as such, but on the fact that particular traits or details are ac-tually acknowledged by the subsequent Christian movement, whether ex-plicitly or implicitly, even though somewhat mitigated or modified, by theological bias or practical considerations.111 A weaker cousin is the cri-terion of inherent ambiguity. Traditions that are difficult to interpret and could easily be misconstrued, i.e., traditions that are susceptible to a nega-

108 For a few examples, see Theissen and Winter 2002 (1997); Holmén 1999; Keith

2011a: 27–70; 2011b; Hägerland 2011; Keith and Le Donne 2012. 109 Meier 1991: 168–81. The criterion of embarrassment can be seen as a variant of

the criterion of dissimilarity. Cf. the reference to Meier’s criterion in Theissen and Win-ter 2002 (1997): 156–57, and the discussion of the plausibility of historical effects in relation to the criterion of dissimilarity vis-à-vis Christianity (173–77), which displays similarities to Meier’s criterion of embarrassment.

110 In Theissen and Winter (2002 [1997]: 184–88), discontinuity with Judaism has become contextual distinctiveness (Kontextuelle Individualität).

111 Cf. “opposition to traditional bias” (Tendenzwidrigkeit) in Theissen and Winter 2002 (1997): 174–77.


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tive interpretation without explanation, can claim some credibility. Why would early Christian tradition or the gospel author create such mate-rial?112 Neither of these modified criteria, however, is applicable in a ma-jority of cases, but only in relation to a limited number of traditions. An-other is the criterion of multiple forms, which is something of a cousin to multiple attestation, but focused on the presence of similar content in dif-ferent genres.113

Many scholars refer to Dennis Polkow’s 1987 essay, which outlines a large number of criteria, while others have counted fewer.114 Without en-tering into a discussion of all suggested criteria, most of which are gener-ally regarded as secondary, we may note some recent attempts to sort them into a hierarchy. John Meier distinguishes primary from secondary or du-bious criteria.115 Polkow classifies them into three groups: preliminary, primary and secondary criteria116 – a division followed by Robert Webb, although the content is not always the same. In Webb’s version, prelimi-nary criteria include source, redaction and tradition criticism, while the traditional criteria proper are divided between the categories of primary and secondary criteria.117 Anthony Le Donne lists six criteria in order of relative strength,118 while Tobias Hägerland refines Polkow’s category of primary criteria, speaking of positive and negative criteria respectively, which can be distinguished as independent first order, independent second order, or dependent criteria.119 Stanley Porter has suggested some new criteria based on considerations of textual, linguistic and discourse analy-sis.120

In spite of a large amount of discussion, there is no real consensus; al-though most scholars would still regard multiple attestation as a strong criterion, the relative value of embarrassment or coherence as compared to dissimilarity is contested. Furthermore, I fear that reliance on traditional criteria, at least for the purpose of “authenticity,” may prove a dead end.121 The longing for safe and stable criteria is understandable when one sees the methodological flaws in much of the outcome of the Third Quest,

112 Webb 2009: 71. 113 Le Donne 2009: 89–90; Webb 2009: 62–63. This criterion is often traced back to

C.H. Dodd (1938: 77–110). 114 Polkow 1987. For references to numerous scholarly discussions of criteria, see

Evans 1996; Porter 2000. 115 Meier 1991: 167–95. 116 Polkow 1987. 117 Webb 2009: 55–75. 118 Le Donne 2009: 87–91. 119 Hägerland 2010. 120 Porter 2000: 126–237. 121 Cf. Keith and Le Donne 2012, but then, already Hooker 1970; 1972.


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which can be accused of everything from naïve acceptance of theological gospel redaction as genuine Jesus tradition to sophisticated anachronism in construing new pictures of Jesus that are compatible with modern ide-ologies.122 In view of all this, clearly defined criteria may give a sense of security, as if providing hard and safe methods. Any feeling of safety based on such criteria for deciding what is authentic is treacherous, how-ever. As Meier concedes, there is a difficult process before these criteria can be applied:

In a sense, the task of a quester for the historical Jesus is to undo what the evangelists did. We must first dissolve these complex Christian compositions into their original building blocks, the small original units of sayings that have been secondarily joined together. Then we must try to discern what may have been the original wording of a saying, or at least the most primitive wording of a saying available to us. Only after that can we apply the criteria of historicity to decide whether this saying, in substance if not in exact wording, goes back in all probability to the historical Jesus. Finally, we must try to understand what this teaching might have meant in the mouth of one Palestinian Jew instructing other Palestinian Jews about the Mosaic Law, as distinct from the meaning(s) the teaching might have acquired later on when it was used by one Christian to teach other Christians about Christian morality.123

Webb could be seen as going even further in his description of a two-stage process, the first of which “involves the gathering, interpretation, and evaluation of the data in context,”124 i.e., the application of preliminary, primary and secondary criteria, while the second is focused on “the inter-pretation and explanation of the data with hypotheses,”125 which means finding a hypothesis that best explains the evidence and accounts for the full picture.

In reality, however, I do not believe that these tasks are carried out in such an orderly way as their description can lead us to believe.126 Redac-tion criticism involves more than just identifying obvious bridges and in-sertions in the Greek language structure. For example, the criterion of em-barrassment may, together with an understanding of the possible function of a particular teaching in an early Christian historical context, actually inform and influence decisions concerning form and redaction which pur-portedly belong to the earlier stages of this process. Exploring multiple

122 See for example Henaut 1997; Arnal 2005. See also Meier’s criticism of the many

scholars who seem to “prefer to ‘muddle through’” (Meier 2009: 16). 123 Meier 2009: 43. 124 Webb 2009: 79. 125 Webb 2009: 81. 126 Webb concedes that these criteria are sometimes in conflict with each other and

must be used together; hence they can be appealed to in order to raise or lower the level of probability, but not for establishing certainty; the use of criteria is more art than sci-ence (2009: 72–73).


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attestations often involves a number of tradition and redaction-critical considerations. And testing alternative hypotheses may sometimes lead to the conclusion that details, ideas or attitudes that were established early in the process are in fact highly implausible. Hence I believe that the process is, and must be, far more circular than these descriptions suggest – a point also emphasized by Webb.127 If strictly adhered to, the outcome of apply-ing various criteria depends on the accuracy of previous redaction-critical decisions, and any uncertainty at an early stage will be multiplied as the process proceeds.

Even if the proposed criteria were safe and reliable, their application would thus be problematic. In actual fact, they are in themselves problem-atic, as a number of scholars have shown during the past decades. This applies particularly to the criterion of dissimilarity, which cannot reasona-bly be employed with regard to Judaism.128 Meier’s adjustments do not solve this problem; the criterion of embarrassment alone cannot bear the weight of proving historically reliable material except in those particular cases where early Christian embarrassment is clearly present. All other criteria are at best subsidiary complements. To my mind, the suggestion of Gerd Theissen and Dagmar Winter, of an overarching “criterion of histori-cal plausibility,” takes better account of the realities of life and the inevi-table conditions for historical research and reconstruction. This “criterion” can be used in a “continuum approach” that puts as much emphasis on explaining Jesus from his Jewish background as from the development of the early Jesus movement.129 While this discussion is subsequent to Meier’s first volume on method, he neither interacts with it, nor does he even address it, in volumes three or four.

I am not denying the usefulness of various criteria for evaluating details – and some are more useful than others depending on the purpose – but I do not believe that by themselves they can decide historical probability. Rather, I think that detailed arguments and counter-arguments, trying out various possibilities, keeping some and discarding others as their explana-tory values are shown to vary, i.e., building and testing hypotheses, is the only way forward.130 The risk of christological construction, theological or ideological wishful thinking and bending evidence in favour of personal

127 Webb (2009: 78) stresses “that the reality of engaging in historical research in-volves the historian moving back and forth among the phases numerous times in a type of Gadamerian hermeneutical spiral as something in a later phase leads to a reworking of something in an earlier phase.”

128 Cf. Holmén 1999; Theissen and Winter 2002 (1997): 25–171, see especially 66–76.

129 For descriptions of a “continuum approach,” see Holmén 2007: 1–16; 2012: ix–xxi.

130 Cf. Allison 2011.


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preference or commitment, is not overcome by employing any criteria, new or old, in a fixed order.

These caveats concerning methodology constitute one reason why I consider that yet another book on Jesus and Jewish halakah will be mean-ingful. Our primary method must be the normal historical process of set-ting up hypotheses and testing them. In doing this, we can make good use of traditional methods and criteria for sorting the evidence, but the plausi-bility of our hypotheses will be decided by how well they explain the shape and development of the Jesus tradition.131 I think this is what Sand-ers appeals for when he suggests that we offer hypotheses that are based on available evidence and then evaluate how well they account for the ma-terial, while making Jesus a plausible figure in first century Judaism and explaining subsequent Christian development.132 This is also the essence of the already mentioned overarching “criterion of historical plausibility,” suggested by Theissen and Winter, or a “continuum approach.”

All of this has to do with the nature of the text. Can the text be peeled and freed from the redactional overlay, i.e., early Christian interpretation, until either a pure kernel or nothing emerges? Does not such a view actu-ally imply that a thoroughly redacted text would be unlikely to contain any historical reminiscences whatsoever? But this does not correspond to the nature of the material and the nature of history, as we have seen. Historical traces may or may not be transmitted through the Jesus tradition; some-times there is historical “memory” behind and at other times there is not. In spite of this, the texts are necessary vehicles for us, not because they might contain historical kernels or authentic sayings, but as traces of his-torical processes or past events. In Le Donne’s words “[i]t is the effects of the past that are available for analysis and not the past itself.”133 If this is so, it means that on the one hand there are hardly any words of Jesus to be retrieved from the textual traditions at all. We only have Christian ser-mons. On the other hand these are sometimes based on, or informed by, traces from the historical Jesus. We may ask for genuine or original say-ings, but we will only find authors’ traditions and elaborations based on earlier traditions based on earlier traces, memories, experiences and elabo-rations.

Our understanding of levels with regard to text and tradition is crucial in historical Jesus research. Far too often we employ simplistic models. Sanders, for example, talks of two contexts for a tradition,134 and employ-ing traditional form-critical vocabulary (without necessarily implying the

131 Cf. van Os 2011: 226–29, 37–38. 132 Sanders 1985: 166–67. 133 Le Donne 2009: 76. 134 Sanders 1993: 78–97.


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presuppositions associated with it) we could envisage a threefold context, corresponding to a Sitz im Leben Jesu, a Sitz im Leben der Kirche, and a Sitz im Evangelium. This is good for heuristic and pedagogical purposes, but often quite insufficient when individual texts and traditions are ana-lyzed. Le Donne indicates that we must reckon with a long continuum consisting of many historical contexts.135 It is possible that one of the un-derlying reasons for a widespread negligence of this is the superficial ap-propriation on the part of historical Jesus scholars of the tools of narrative criticism. As Elizabeth Struthers Malbon has recently pointed out, there is no analogy between the implied author or narrator in a narrative approach and the evangelist or redactor in a historical approach; nor does the narra-tive character Jesus correspond to the historical Jesus. It is rather that the whole narrative enterprise, including the real author, the implied author, the narrator and the characters, all have their correspondence in the his-torical evangelist or redactor. It is beneath all of this that we have to look for layers of tradition and for the historical Jesus.136 It is tempting, how-ever, to ascribe one of the narrative or literary layers to the historical Je-sus, thereby simplifying and short-circuiting the analytical process. I find the tendency to explain Jesus’ attitude in halakic matters by an inherent charismatic authority, somehow overriding the law, one example of falling victim of such a temptation, with crypto-christological consequences.

If we are looking for the historical Jesus we should not primarily be looking for original sayings, but for hypotheses about possible traditions and events behind extant sayings and narratives, which have a superior explanatory value for the shape, function and interpretation of the present form of the saying or narrative. In other words, we must look for reason-able suggestions that may satisfactorily explain the development and elaboration of the Jesus tradition, taking the socio-religious and historical context into account, including further development in early Christian lit-erature and theology, i.e., subsequent reception and refraction of the earli-est material. When such suggestions are more plausible than their alterna-tives, and when they make more sense at the level of Jesus than at an intermediate, pre-gospel level, then we may with some confidence speak of the historical Jesus.

135 At least this is how I understand his discussion of localization and mnemonic con-

tinuity or trajectory (Le Donne 2009: 70–77). Referring to Sanders, Le Donne says: “Sanders emphasized that Jesus must stand firmly within first-century Judaism(s) … he also emphasized that Jesus must stand in some relationship with the gospel material and the early church. I consider my present argument concerning the continuity of memory to fill out the gap created by Sanders’ two contexts” (2009: 75).

136 Struthers Malbon 2009: 250–56.

1.5 The aims: goals, intentions, and psychological criticism

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1.5 The aims: goals, intentions, and psychological criticism

Questions of motives and purposes have belonged to historical Jesus re-search from the very beginning, ever since Reimarus’ once provocative study Vom Zwecke Jesu und seiner Jünger.137 However, this question has not always been at the forefront, although, as John Riches has been one of the foremost to point out, it is precisely the question of Jesus’ own inten-tions that lies behind much of the quest for the historical Jesus.138 In his own study – one of the earliest in the Third Quest – Riches makes clear that he believes this to be possible.139 While I do not share all of Riches’ conclusions, especially when it comes to Jesus’ attitude to impurity, I share his belief that historical enquiry also reasonably includes questions of motives.

Such questions can, however, be posed at different levels. Many bibli-cal scholars have strong reservations against anything that looks like psy-chologizing exegesis. The use of psychology in historical reconstruction has been discredited since the times of Schweitzer and Bultmann. Psy-chologizing accounts of Jesus were seen as unnecessary attempts to solve problems that proper historical-critical methods could take care of; be-sides, the available historical material was not deemed sufficient or reli-able enough. Only in recent years have psychological approaches to bibli-cal interpretation in general and the Jesus tradition in particular evolved.140 A group of scholars have for some time been exploring psy-chologically informed exegesis within the SBL Psychology and Biblical Studies section. In Germany, Gerd Theissen has published a major study on the psychology of early Christianity (Erleben und Verhalten der ersten Christen),141 which was prefigured almost twenty-five years earlier by his study on psychological aspects of Pauline theology.142 Theissen integrates learning theory, psychodynamic theory and cognitive psychology, in order to explain the behaviour and experience of early Christ-believers.143 Re-cently, Bas Van Os has more specifically related psychological analysis to the interpretation of the historical Jesus. Van Os suggests a methodology based on W. M. Runyan’s discussions of psychobiography, which takes account of more than just particular information about an individual, inte-

137 Published by Lessing in 1778; ET Reimarus 1970 (1778). 138 Riches 1993: 89–124. Cf. Meyer 1979. 139 Riches 1980: 2–4. 140 For examples and a research history, see Theissen 2007; cf. van Os 2011. 141 Theissen 2007. 142 Theissen 1987 (1983). 143 For an analysis of Theissen’s approach in integrating psychology and New Testa-

ment Studies, written before his major 2007 study, see Mitternacht 2004.


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grating common human and group related contextual psychological fac-tors. He argues that in order for any historical reconstruction of Jesus to be considered, it must also take psychological plausibility into account.144

As an example of psychological explanation on different levels we may look at views on Jesus’ experience of God as father and the activity of the spirit, suggested by the narratives of his baptism. Meier finds it possible to discuss Jesus’ experience, but is reticent to ask when and how such an experience may have come to him; he finds this to be undue psychologiz-ing.145 Webb is less restrictive about discussing the historicity of experi-ences confirmed by texts, but still rejects psychologizing explanations of why Jesus had such experiences.146 Van Os, however, suggests a method-ology that would make even some of these questions legitimate.147 As with questions of experience, questions of purposes or motives can always be accused of being psychologizing attempts to enter the minds of human beings long since dead and gone. Although there are methodological risks, it would be just as lopsided to refrain completely from bringing psychol-ogy into historical discussion as to avoid economic conditions or geo-graphical or social realities.148

I doubt, however, that the question of motives, as I pose them in this study, really fall within the scope of psychological criticism. When asking why there were conflicts on legal issues I am asking for motives. I am not asking psychologizing questions about personal reasons for Jesus’ mo-tives. Tracing the motives of an ancient historical person through literary sources is of course precarious if motives are understood as a psychologi-cal state. But my approach is more pragmatic; I regard intention and mo-tives as necessary components of historical explanation.149 We are not try-

144 Van Os 2011. 145 Meier 1994: 107–108. 146 Webb 2009: 110, n. 38. 147 Van Os 2011: 26–38, 99–101. 148 Cf. Theissen, who has repeatedly pointed this out; a good example is found in his

book on psychological aspects in Pauline theology: “The goal of historical-critical exe-gesis is to make texts intelligible on the basis of their context in life. Do not these psy-chological interpretations also seek to contribute to this aim? Can the life context of religious texts be clarified without consideration of psychic factors and aspects?” (1987 [1983]: 28).

149 Collingwood makes an important point when he talks about the difference between the “outside” and the “inside” of an event and says that the historian is not merely inves-tigating the “outside” of events but also actions, which include the “inside.” He even thinks of history as a re-enactment of past events in the mind of the historian, to the point where this seems to include re-thinking the thoughts of historical persons. This is as close as one can get in attempting to enter their minds, and I would not go that far. However Collingwood’s observation is valid, that historical explanation is distinct from explanation in the natural sciences, since it asks not only for causes in the sense of gen-

1.6 The new turn: development of halakic reasoning

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ing to enter into the minds of historical persons. We make inferences from a perceived behaviour within a defined social and historical context.

When I look for the motives behind Jesus’ conflicts relating to ques-tions about Sabbath, purity and divorce law, I am simply asking for rea-sonable and coherent interpretations of patterns of behaviour that emerge by juxtaposing singular details, events and sayings, which are plausibly deemed to be historically reliable. A number of suggestions have already been offered, both by the gospel authors and throughout the history of bib-lical interpretation, as I have already mentioned, and these will need to be scrutinized. While it is always possible – even easy – to think of subcon-scious psychological reasons for human behaviour, I have no ambition to enter into a psychological analysis of Jesus’ motives in legal conflicts.


Consciousness of the diversity of Early Judaism makes it easier to view Jesus’ conflicts within the framework of an ongoing intra-Jewish discus-sion on halakic interpretation. There is a risk of downplaying diversity in an attempt to counter the bias in traditional New Testament study. Vermes has argued that although Jesus, as a Galilean ḥasid, had a relaxed attitude to the rules of purity, he was never engaged in any serious conflicts re-garding Jewish law.150 Sanders likewise has little room for legal con-flict,151 and has been criticized for not taking sufficiently into considera-tion the diversity between various groups in the Second Temple period, when promoting the idea of a “common Judaism” that united all fac-tions.152

The flourishing of sects towards the end of the Second Temple period has been confirmed and explained in a number of ways.153 Even in early rabbinic literature, which reflects what has sometimes been called a “grand coalition” in the aftermath of the first Jewish war,154 disparate or conflicting viewpoints are set against each other, albeit in a highly ordered manner as governed by the particular genre of rabbinic discourse. Some of eral laws of nature but also in the sense of intentions and motives related to human ac-tions. Collingwood 1961 (1946): 213–20.

150 Vermes 1973: 80–82; 1993: 21–26. 151 Sanders 1985, see for example p. 292. 152 Cf. Neusner’s criticism (although highly exaggerated), 1993a: 275–95; 1993b:

xxi–xlviii. For convenient discussions of unity and plurality of practice and belief in Judaism at the time of Jesus, see Cohen 1994; Saldarini 1994. For a criticism of Neus-ner’s “Judaisms,” see Pasto 1999: 336–464.

153 Cf. A. Baumgarten 1997. 154 Cohen 1984.


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these texts also attest to a time before the war when conflicts could be-come very fierce, even violent, not only between Pharisees and Sadducees, but also between what can be perceived as factions within one and the same movement.155 The texts from Qumran have further enhanced this picture, and evidence such as 4QMMT suggests that serious dissensions between different groups about halakic interpretation, were already current in an early period.

The need for halakic elaboration is evident for any student of Penta-teuchal law who reflects on how and to what extent these rules relate to actual practice at any subsequent given point in time. First of all, biblical law is not comprehensive; it does not cover all circumstances. At times it does not even provide a basic outline but deals only with exceptional cases. This is due to the fact that justice in the ancient world was mostly administered on a local level, based on customary law, which was often orally transmitted and a natural part of culture. Customary law is thus of-ten assumed in various legal rulings.156 Secondly, in a number of cases, specific laws in the Torah itself may reflect attempts to suppress or com-plement customary law or tradition with new rules or adjustments, which corresponded to changed social circumstances, administrative purposes or centralized control, especially with regard to cultic matters. In other cases, legal rulings were updated, to correspond better to practice as it had de-veloped meanwhile.157 Thirdly, this adjusting and updating activity was not needed any less because the Pentateuch had received its near-final form, probably during the 4th century BCE. Social, economic and political changes, as well as cultural interaction and developments in various areas, presented continuous challenges to legal interpretation and application. Hence there is good reason for the claim that halakah primarily developed not because of isolated exegetical activity, but because of the “exigencies of life.”158 As a result, halakah originates in a social location and has a social function. At the time of Jesus, everyone would have lived according to a halakah, “though not all Jews would adopt the word.”159

155 See for example all the sayings referring to conflicts between the schools of

Shammai and Hillel, especially references about outvoting and violence associated with the upper room of Hananiah (m. Šabb. 1:4; t. Šabb. 1:16–17; y. Šabb. 3c–d (1:7); b. Šabb. 17a).

156 Cf. Knight: 2011; Jackson 2006: 387–430. 157 This is evidenced by a number of differences between the various Pentateuchal le-

gal collections, not least in the area of cultic law. Two examples may suffice: the eating of carcass and the case of kofer (cf. Kazen 2011: 77–78, 149–52 for discussion and ref-erences).

158 Cf. Doering 2006: 16; Doering 2012: 452–54; Metso 2006: 300; 2010: 19. 159 Tomson 2010a, 140–145, quotation from 141. Cf discussions about the use of the

rabbinic term halakah for pre-rabbinic legal discussion and development (Meier 2003a).


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This also implies the inaccuracy of the idea that the formation of ha-lakah would have been a particularly Pharisaic creative activity, while Sadducees stayed content with the Pentateuch and Essenes mainly deduced their interpretation by exegesis. Such a picture is far too simplified and has been questioned repeatedly. While Sadducees did not accept a number of Pharisaic traditions and interpretations, their readings and rulings were by necessity interpretative as well. One may thus justifiably talk of a Sad-ducean halakah.160 The texts found at Qumran similarly reflect a conserva-tive stance in some matters, but at the same time employ creative interpre-tations of biblical texts and often display expansionist tendencies that apply extended legal practices to categories and contexts not originally envisaged in the biblical text. This is nothing strange but rather a neces-sary activity in any legal historical context, and mainly takes the form of oral activity, unless laws are frequently amended and rewritten by a “cen-tral authority.” What is particular in the Jewish context towards the end of the Second Temple period is the degree of diversity and dissent resulting from competing claims of legitimacy and authority, which in some cases caused rewriting and invention of legal texts by dissenting groups. This is the context in which Jesus’ conflicts on legal issues must be placed.

To identify the viewpoints contemporary with Jesus is, however, a tricky issue. In order to suggest reasonable hypotheses about the develop-ment of the Jesus tradition and the level to which particular motives might most plausibly belong, we need to study the tendencies of texts and of sug-gested pre-gospel layers of tradition against their historical contexts. In the case of halakic conflicts, such a study is not possible without understand-ing the mechanisms of halakic development. The development of halakah during the late Second Temple period is a crucial issue, not only because it provides necessary evidence for reconstructing various historical contexts, but also because the mechanisms of halakic negotiation and development may shed some light on the development of early Christian legal interpre-tation, whether these are similar or going in opposite directions.

Evidence from Greek Jewish sources, such as Josephus and Philo, not to mention the New Testament, can also be of great importance in recon-structing the halakic situation at the time of Jesus. In those areas where these sources happen to overlap or coincide on issues of legal interpreta-tion, it is sometimes possible to outline the state of halakic discussion. I have discussed these issues in some detail in Jesus and Purity.161

Although such evidence should not be downplayed, a comparison be-tween texts from Qumran and rabbinic traditions from Tannaitic times is crucial for broader and more detailed outlines of halakic development and

160 Cf. Wassén 1991. 161 Kazen 2010a (2002): 51–55.


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their underlying mechanisms. The dating of rabbinic traditions is, how-ever, an area of much discussion and dissent. The credulity of past times is mostly history; Strack-Billerbeck was a source book, but without context or chronology and encouraging severe parallelomania. There is no consen-sus on a new and valid methodology.162

Most contemporary attempts to date rabbinic traditions and define those that might originate before the fall of the temple, build in some way or other on Jacob Neusner’s research from the 1970s and onwards. Neusner began applying historical-critical methods to rabbinic texts, which were similar to those that New Testament scholars had been applying for a long time to early Christian texts. As for the earliest collections, Mishnah and Tosefta, Neusner based his method on attributions to named rabbis, and stated three conditions for considering a tradition to be early. First, a tradi-tion attributed to a pre-70 rabbi must be prior in logic to a tradition attrib-uted to a post-70 rabbi. Secondly, there must be intersection between the standpoints attributed to the two. Finally, the latter tradition must depend on and develop the former. When these conditions are met, the substance of a tradition assigned to a pre-70 rabbi is likely to have a historical ba-sis.163 A similar approach is advocated by Günther Stemberger. Stember-ger agrees with Neusner that attributions in Tannaitic texts are mostly reli-able, and he suggests that even when a tradent’s name cannot be proven, the period usually can, i.e., the tradition is likely to belong to that genera-tion of rabbinic scholars. This is the case when later generations quote, comment on, or take the earlier idea for granted.164 Stemberger thus ex-presses a view on logical precedence similar to that of Neusner. In recent discussions, however, Stemberger has voiced reservations about the extent to which attributions to sages before 70 CE really can be relied upon.165 He has further problematized the literary context in which a tradition oc-curs, the language of the text, issues of later quotations, parallel traditions, stylistic and grammatical differences, as well as references to the temple ritual.166 Stemberger and Neusner both agree that what can be attested is the content, not the ipsissima verba of named rabbis.167

Biblical scholars, however, often seem to prefer source books to meth-odologies. A recent Strack-Billerbeck-like project is “The New Testament

162 For a critical and sceptical discussion, see Müller 2008. 163 Neusner 1978: 222; cf. Neusner 1971, vol. 3. Neusner’s results from A History of

the Mishnaic Law of Purities (22 vols.; Leiden: Brill, 1974–77) are summarized in Neus-ner 1987; cf. Neusner 1998.

164 Stemberger 1996: 57–58; cf. 133. 165 Stemberger 2010: 87. 166 Stemberger 2010: 81–86. Stemberger also discusses the simplified assumptions

that baraitot can be used as evidence for Tannaitic practices (90–92). 167 Stemberger 2010: 89.


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Gospels in their Judaic Contexts,” which has so far published a volume on Mark, edited by Bruce Chilton and others. The scope is broader, listing “parallels” from all sorts of Jewish texts: Apocrypha, Pseudepigrapha, DSS, Philo, Josephus, Rabbinic texts and the Targumim. The approach is, however, fairly similar to Strack-Billerbeck, in spite of an ambition to dif-fer, in that readers are offered a wealth of possible parallels but few tools to decide whether they are relevant, for what purposes, and why certain texts were chosen and not others. Although brief comments are offered after each section, they are not exhaustive, and Aramaic retroversions abound, which reveals a certain bias.

A different approach is taken by David Instone-Brewer in his project, Traditions of the Rabbis from the Era of the New Testament (TRENT), which is limited to Tannaitic traditions. So far, volumes 1 and 2a out of six planned volumes have been published.168 Instone-Brewer builds upon Neusner’s and Stemberger’s two widely accepted methods for dating rab-binic traditions: attribution and logical precedence. Tannaitic attributions are treated as fairly reliable, and even when the attribution is doubtful the time period is often supposed to be right. Anonymous traditions may be very late, but may also, at times, represent early opinions.169 The latter can be assumed to be the case when an anonymous tradition is discussed or assumed by a datable tradition. In such cases that tradition is usually older than the one relating to it. Three additional methods mentioned by Instone-Brewer for dating early anonymous sayings are the use of parallel sources, references to temple practices, and literary structure, all discussed with the necessary caveats.170

From this Instone-Brewer constructs a scale with thirteen levels of con-fidence in dating traditions that may have roots in the period before the destruction of the temple, based on the five previously mentioned criteria. The project does not aim to date rabbinic traditions in general, but to sin-gle out those traditions that are useful for studying Second Temple Juda-ism, and the New Testament in particular. As such, Instone-Brewer’s ap-proach is an advance in comparison to many previous endeavours, in providing early rabbinic material relevant to New Testament studies, not least because he follows the order of the Mishnah and discusses every text that could come in question, complementing it with relevant material from the Tosefta, the Talmudim, and occasionally other rabbinic material.

There are some serious difficulties, however, with Instone-Brewer’s project. It has been heavily criticized by Stemberger, whose problematiz-

168 Instone-Brewer 2004; 2011b. 169 Cf. Sanders’ comments on the possibility that the stam may at times reflect early

opinions (1990: 167). 170 Instone-Brewer 2004: 34-38


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ing discussions we have already mentioned above.171 Indeed, Instone-Brewer himself admits most of these problems and brings them up for dis-cussion. He points out that “attributions to very early authorities have to be treated with great care, because sometimes a ruling which had no scrip-tural support was given added authority by being attributed to a great man of the past.” He also problematizes the use of style to validate attributions, due to the formulaic nature of the rabbinic materials,172 and suggests that types of argument and exegetical techniques may provide better point-ers.173 Furthermore, he warns against additions even in early traditions, and cautions against biographical and exegetical material.174 Turning to logical precedence in anonymous sayings, Instone-Brewer finds Neusner’s early stance too confident; the majority of these sayings are impossible to date. Even if these sayings in early texts, like the Mishnah, often serve as a starting point rather than as a conclusion, logical precedence may some-times mean no more than logical dependence, representing current major-ity opionion from which the discussion starts, rather than an early rul-ing.175

In spite of all these caveats, Stemberger finds that Instone-Brewer ac-cepts reliability far too easily. For example, the school conflicts are ac-cepted in general as having been edited before the destruction. Texts re-garding the temple and cultic practices are also too quickly accepted without enough individual argument. Stemberger finds that Instone-Brewer believes in the full continuity of halakah from the time of the tem-ple to the Rabbis, and that Jesus and his adherents followed Pharisaic ha-lakah, with which rabbinic halakah was continuous. Above all, his criti-cism concerns an understanding of how rabbinic traditions develop:

This conception of Jewish history that completely ignores scholarly literature of the last decades, is accompanied by the assumption that even in late texts one is able to identify the elements that are early. … Behind this procedure stands an idea of the growth of rabbinic texts which might perhaps fit a modern written text reworked and enlarged again and again, but which is certainly incongruous for rabbinic writings.176

These are harsh words about an ambitious project. It is true, however, that while Instone-Brewer’s methodology looks careful and cautious to begin with, its application may at times seem arbitrary. When relating his dated traditions to the New Testament, Instone-Brewer can treat gospel texts quite naïvely, with no regard for levels of tradition and redaction, which

171 Stemberger 2010. See also the criticisms by Hezser 2005 and Schwartz 2012. 172 Instone-Brewer 2004: 31. 173 Instone-Brewer 2004: 31–32, with references to Instone-Brewer 1992. 174 Instone-Brewer 2004: 32. 175 Instone-Brewer 2004: 33–34. 176 Stemberger 2010: 95


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sometimes results in rather fanciful interpretations.177 This is explained by Instone-Brewer’s general view of the New Testament, most of which he dates to before 70 CE, with the simplistic argument that “they do not overtly refer to the destruction of Jerusalem and its Temple.”178 The Jesus of the different gospels is mostly assumed to be the historical Jesus of the early first century CE, which in a number of cases contributes to tipping the balance in favour of an early dating of halakic interpretations or prac-tices. This is unfortunate, but one should point out that it does not invali-date Instone-Brewer’s work as such, only that his results must be weighed against his bias.179

The search for reliable methods of dating rabbinic traditions will con-tinue. However, just as we have argued with regard to gospel traditions, we cannot expect to isolate “genuine sayings,” whether from Jesus or from pre-70 Tannaim. We can only look for the contents out of which the tradi-tions could plausibly have evolved, i.e., ideas, customs, attitudes, practices and behaviours, from a stage before the texts were shaped. With this in mind, a list of criteria for dating and attribution, however refined, will only take us so far. As in historical Jesus research we will have to put up hypotheses and test them against a broader background, to see how well they work, i.e., to determine their explanatory value. In the case of possi-bly early Tannaitic traditions, then, a comparison with all relevant sources would be necessary, and in particular with Qumran texts. What is needed is not just a list of pre-70 halakic decisions, but an understanding of how and why particular ideas and legal interpretations evolved. Understanding the mechanisms of halakic development is a prerequisite for any attempt to reconstruct it.

Comparisons between Qumran and rabbinic halakah have become in-creasingly possible as documents have been published: the Temple Scroll, MMT, the Damascus Document, including the 4Q fragments, and numer-ous other texts from Cave 4. Among early undertakings, those of Baumgarten and Schiffman are the most important,180 but many other

177 One example, which Stemberger mentions (2010: 94–95), is Instone-Brewer’s

speculative interpretation of the feeding miracle (2004: 180–82), in which the leftovers are understood as having to do with rabbinic tithing rules, i.e., as heave offerings sepa-rated from doubtfully tithed food according to the laws of demai.

178 Instone-Brewer 2004: 1, quotation from n. 1. 179 Had he applied similar strictures to the New Testament material as he does – at

least in theory – to the rabbinic texts, the results would probably have looked somewhat different. This is another example of how particular criteria rarely do the job on their own but always in combination with other factors; in this case results from the use of criteria for dating rabbinic texts are compromised by particular presuppositions regard-ing the comparative material, i.e., the New Testament texts.

180 Baumgarten 1980; Schiffman 1989; 1994.


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scholars have taken part in this endeavour. Many comparisons fall under one of the three main areas that also are prominent in discussing the Jesus tradition: the Sabbath, purity and matrimonial law.

Similarities and differences between rabbinic and Qumran halakah can be dealt with in various ways, and become more interesting when we get beyond a point-by-point comparison. Since the two “bodies of law” are neither contemporaneous, nor similar in structure or genre, questions of interrelationship are crucial. There is quite naturally a danger of paral-lelomania in this situation, and the problem has been repeatedly ad-dressed.181 There are ways out of the dilemma, however, and recently the contours of a viable methodology have begun to appear.

Aharon Shemesh has outlined two basic models available for under-standing the relationship between Qumran and rabbinic halakah: the de-velopmental and the reflective. The developmental model, which goes back to Geiger and Gilat, understands the “priestly” system (Saddu-cean/Qumran) as the old halakah, which developed into the new rabbinic system. Within the rabbinic system, Shammaites and R. Eliezer sometimes represent older views. The reflective model, backed by scholars like Yadin and Schiffman, sees rabbinic halakah as reflective of the pre-70 Pharisees, and the tension between rabbinic and Qumran legal interpretation reflects tensions between Pharisaic and priestly (Sadducean/Qumran) halakah at the time of the second temple. Shemesh argues that these two models ac-tually coexist and interact, and that each legal issue must be judged from its own merits. The reflective model is apt when there are explicit men-tions of different opinions in Qumran literature, or when the polemic na-ture of these texts implies such contemporary tensions. The developmental model is relevant when the scrolls do not mention other opinions but just state halakic norms. Although rabbinic views may differ or oppose these norms, we can often assume that the scrolls in such cases represent general practice, especially in cases where traces of this “old halakah” can also be found in later rabbinic texts. Differences in style and genre between Qum-ran and rabbinic texts are also best explained by the developmental model.182

In order to understand how legal interpretation developed during the Second Temple period we need to understand the ideas or principles be-hind Qumran and rabbinic halakic rulings respectively. One important point concerns the role of scriptural interpretation in deciding halakic is-sues. In an important article published in 2001, Adiel Schremer discusses the shift from tradition-based to text-based religion.183 Schremer argues

181 Doering 2006; cf. Sandmel 1962. 182 Shemesh 2009: 1–19; 2012b. 183 Schremer 2001.


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that at an early stage it was not customary to appeal to the written text of the Torah for halakic guidance, and that Qumran’s bibliocentric approach with respect to halakah was an innovation.184 Schremer also points out that there are almost no references to Scripture in early halakic sayings of the Second Temple era, and no proof-texting, at least not in decisions attrib-uted to authorities before the schools.185 Even in sayings attributed to Hil-lel, references to Scripture and the use of Scripture as a justification of halakic decisions are rare.186 It was only later that Scripture came to play a central role in rabbinic discourse and that citations were added to halakic statements. In the early days halakic decisions were not derived from Scripture; their main source of legitimacy was institutional authority, tra-dition, and the simple sense of the matter. When Scripture was used, it was mostly paraphrased, and its plain sense was understood to repeat the halakic ruling. This “indicates not only that Scripture was not used as a ground for halakic ruling but also that once it came to be used for this pur-pose (much later), it was used, at first, in a very simple and primitive man-ner.”187 This can be seen in Qumran texts, which use Scripture to justify halakic points, but mostly by concluding a plain meaning from the biblical text, something that Schremer illustrates with several examples. The ap-peal to the written text of the Torah was in its infancy, and we rarely find anything like halakic midrash.188 Schremer suggests that traditionalists, adhering to inherited custom, needed to respond to this innovation, and that text-based halakic decision became increasingly difficult to ignore, due to the status of the written Torah. This triggered exegetical efforts among other groups, in order to prove or support custom from Scripture, or at least to accommodate it, and thus became a catalyst for Torah study among the Pharisees. “Thus, paradoxically, rabbinic Judaism may in large measure owe its prime value, and the existence of its institutional plat-form, to its ‘text-oriented’ opponents, of whom the most famous were the Dead Sea sect.”189

Another useful tool is the conceptual pair of nominalism and realism that Daniel Schwartz introduced in a seminal paper in 1988,190 in order to analyze the principles behind various views of law. Schwartz borrowed this distinction from Silman, who had suggested a tension between nomi-nalist and realist tendencies in rabbinic law. Silman claimed that the rab-

184 Schremer 2001: 113–17. 185 Here Schremer (2001: 116) refers to Urbach and Halivni for support. 186 Cf. Schwartz 1997. 187 Schremer 2001: 118. 188 Cf. Fraade 1998 (= 2011: 145–67), who underscores this point. 189 Schremer 2001: 126. 190 Published four years later (Schwartz 1992).


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binic way of drawing connections between unrelated fields of law assumes an underlying unified reality.191 Schwartz picks up this terminology and examines a number of priestly (Qumran-Sadducean) laws, including the ban on taking two wives in a lifetime (CD IV, 21), the slaughtering of grasshoppers (CD XII, 14–15), uncle-niece marriage (CD V, 7–11), the impurity of animal bones (11Q19 LI; for Sadducees, cf. m. Yad. 4:7), the impurity of flowing streams (4QMMT B 55–58; for Sadducees, cf. m. Yad. 4:7), and a number of examples from penal law concerning witnesses and court rulings.192 From these cases Schwartz argues that the Qumran sec-tarians and the Sadducees shared the same general outlook on the nature of law, which was very different from that of rabbinic Judaism.193 According to the priestly outlook, law must conform to the realities of nature, to the state of things, from creation. Things are forbidden because there is some-thing intrinsically wrong with them, not the other way round. This makes it possible to draw conclusions from one law to another, making analogies. The rabbis, on the other hand, display a nominalist approach, in which laws are divine orders that do not need to correspond to any human under-standing of reality. Things are wrong simply because God forbade them. Hence realist reasoning and argument, which can be used to expand on legal interpretation, is discarded, and questions about the purpose of a law need not be asked. Schwartz considers that the text of the Torah already displays a realist approach.

Schwartz thinks that the priestly position is more logical to religious people. The drawback is that legal decisions can sometimes be found to have been wrong, thus undermining the authority of the human administra-tors. Priests could afford that, since their authority was hereditary and taken for granted. Sages and rabbis, however, gained their authority

191 Silman 1984–1985. Rubenstein (1999: 158–61) has pointed to the problem of us-

ing metaphysical or epistemological concepts from medieval philosophy for quite a dif-ferent purpose; moreover, this use of realism does not even correspond to the use of “legal realism” in contemporary legal discourse. Rubenstein suggests that Silman’s and Schwartz’s use of these concepts corresponds rather to “natural law” and “legal positiv-ism” (Rubenstein 1999: 158–59, n. 5). Rubenstein also points out that Schwartz eventu-ally uses these concepts to argue differently than does Silman. Nevertheless the concepts of realism and nominalism have been proven quite functional for the purpose that Schwartz has given them, in spite of their anachronistic flavour, and they have been picked up and used by others. My use of realism and nominalism in this study should not be understood to have any other implications beyond the meaning that Schwartz gives these terms, as outlined below.

192 Schwartz 1997: 230–33. 193 Schwartz moreover argues that the rabbis attributed their own position to the

Pharisees (2008).


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through the law and had to insist on it.194 The fall of the temple and the rise of Christianity made life unstable and if human interpreters were en-trusted with the exposition of the law, then their decisions were valid, whether or not they were true.

This model has been criticized by Jeffrey Rubenstein, who found that Schwartz’s position is somewhat overstated. Rubenstein claims that rab-binic law is not just nominalist but also displays many realist traits. Work-ing through Schwartz’s examples, he argues that in some of the cases the opposing rabbinic law can be understood as another expression of realism, depending on the world-view behind them; there were different assump-tions about reality. In other cases one may doubt whether the Qumran rul-ing really has anything to do with reality or nature; why in that case were other details of legal interpretation not affected in a similar way? There is no room to go into all the details, but Rubenstein’s point is to show that only a few of Schwartz’s examples lend themselves to the realist-nominalist conflict, and that many rabbinic laws can be seen as realist too. This having been said, Rubenstein does accept Schwartz’s theory, albeit in a weakened form. Pharisaic-rabbinic laws are generally more nominalist than Qumran-Sadducean laws. This is explained by laws usually being initially realist, and changing with societal changes, but in contexts where laws are canonized the resulting discrepancies favour nominalist tenden-cies. Rubenstein thus sees a chronological development at work.195

Rubenstein offers important considerations, and it is reasonable that certain nominalist tendencies should be found early, just as some realist traits continued to live on. I find several of Rubenstein’s arguments weak, however, for example that the rabbinic view of an amputated bone of a living person as impure must reflect a realist understanding (a bone is a bone).196 Rather, I think that the opposite opinion of the Qumran sectari-ans is based on the realist view that since the person is still alive this is not a bone of a corpse; hence it cannot be impure. Similar objections can be made against other arguments.

Vered Noam gives the discussion a fresh turn by looking for traces of sectarian halakah in rabbinic traditions. She points out that R. Eliezer and sectarian halakah are repeatedly found to share a similar attitude; both adhere to a more literal sense of Scripture and tend towards stringency.197 (In an earlier study she points out similarities between Qumran and the

194 On the shift from priestly to non-priestly legal authority, see Fraade 2011: 1999 (=

2011: 193–210). 195 Rubenstein 1999. 196 Rubenstein 1999: 169–70. 197 Noam 2006.


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School of Shammai.198) Noam’s examples concern the ritual impurity of liquids, the sôṭâ, the captive woman, matrimony laws, animals fallen into a pit on the Sabbath, offerings from Gentiles, and talion law. She finds R. Eliezer’s interpretations characterized by simplicity, stringency, and non-interpolation of Scripture in a manner reminiscent of sectarian halakah. She then asks whether these resemblances correspond to similarities in underlying world-view, and concludes that Schwartz’s distinction between realism and nominalism is helpful in this regard; it fits the conflict be-tween R. Eliezer and the majority well. Referring to Gilat’s study of Eliezer,199 Noam points to a number of realist traits, all of which centre on the idea that laws must conform to nature and that halakah should reflect objective truths about reality rather than human consensus. There are thus two main issues involved: the source of authority and the role of the legal process. For R. Eliezer only divine revelation is authoritative. This is simi-lar to the Qumran sectarians, who believed in ongoing inspiration and revelation, and could thus rewrite Scripture. The sages, however, found authority in the human activity of expounding the law; hence their distinc-tion between written and oral Torah.200 For R. Eliezer, the legal process was a search for pre-existent truth in nature itself, while for the sages the legal process actually created halakic truth. Hence halakah could be an innovative product resulting from a majority vote. Noam does not suggest that R. Eliezer’s ideas were identical with those of the sectarians, but rather that he was no closer to mainstream Pharisaic concepts than to them.

The question of authority is crucial. Shemesh, who discusses the developmental versus reflective model, suggests differences or tensions between priestly (Qumran/Sadducean) and rabbinic views in three main areas, all of which have to do with authority. The first and the third are similar to Noam’s two main issues, and the second area relates to Schremer’s understanding of the role and development of exegesis in defending custom and creating new halakah.

The first concerns revelation versus exegesis, and is best explained by the developmental model.201 While authority in Qumran was based on di-vinely inspired reading and interpretation of the Torah, legal development for the rabbis depended entirely on human exegesis, since prophecy was understood to have ceased.202 This difference is reflected in distinct genres

198 Noam 2002. 199 Gilat 1984. 200 On this issue, see also Shemesh and Werman 2003; Werman 2006. 201 Shemesh 2009: 39–71. 202 For a recent discussion about the understanding of the cessation of prophecy, see

Cook 2011.


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as well as in various types of content.203 Here Shemesh comes close to Noam, and points to similar consequences for the rabbinic distinction be-tween written and oral law.204

The second area of dissent is that between Scripture on the one hand and tradition in the sense of custom on the other.205 In this case, Shemesh claims that the Sadducees and Qumran sectarians were the reformers, in denying previous customs when they could not find justification for them in Scripture, while Pharisees and rabbis gave priority to ancient tradition. Here the developmental model fits less well. Shemesh argues for the prior-ity of tradition (custom) in early times, even within the priestly halakic system, but the Sadducees (Shemesh’s definition of priestly groups in gen-eral, including Qumran) are thought to have made the first move towards preference for the plain meaning of Scripture over tradition, thus rejecting older norms. We thus see a shift from tradition-based to text-based ha-lakah, which takes place and is subject to conflict and discussion during the Second Temple period. A prime example of this is said to be uncle-niece marriage, which Shemesh claims was part of ancient custom rather than a leniency introduced by the Pharisees, as often argued by others. Although some marriages with close relatives were traditionally avoided in the late Second Temple period, even if not explicitly prohibited in the Torah, this was not the case with uncle-niece marriage, which was com-mon. In Shemesh’s view it was the Sadducees (or qumranites) who initi-ated halakic change by asking for biblical justification. A hermeneutical principle of analogy, first used to explain customary avoidance of certain unions, was then used to create a new prohibition against a common cus-tom.206 This could in turn have spurred later rabbinic praise for uncle-niece marriage as a protest.

The third area of dissent concerns realism versus nominalism.207 Shemesh finds Schwartz to be basically right concerning Qumran, where realism is not just deduced from the text, but “(foundation of) creation” is explicitly referred to, as in the cases of remarriage and the slaughter of locusts. The priestly view should, however, be further defined: reality re-flects law because God created the world according to the law. Shemesh demonstrates the consequences of such a view with regard to matrimonial

203 Cf. Shemesh 2012a. 204 Cf. Heger (2007: 121–45), who discusses the same phenomenon but concludes

that “there is no conflict between the two concepts of exegesis and revelation” (144). 205 Shemesh 2009: 72–106. 206 Cf. Schremer (2001: 118–19), who points to the fact that the argument in CD V,

7–11 is not a highly developed midrash, but “a simple straightforward argument derived from the general linguistic sense of the biblical law” (119).

207 Shemesh 2009: 107–28.


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law: marriage is constituted by physical union rather than by contract, hence it neither requires the couple’s intent, nor is it possible to dissolve. This excludes polygamy, as well as remarriage as long as the former hus-band is alive, and it explains why 11Q19 combines laws about the rape of an unbetrothed girl in such a way that the right of the father to refuse mar-riage is ignored. Realism should thus be seen as a characteristic of priestly halakah, although not restricted to priestly tradition. Shemesh agrees with Rubenstein, against Schwartz, that many rabbinic halakot are similarly realist. With time, however, we see a rabbinic development towards more nominalism. Such a development is considered normal in any legal sys-tem.

Shemesh describes the Sadducean/Qumran religiosity as anxious; when tradition is not accorded much of a role, but religion becomes more text-based, there is an increasing need to define and specify what is necessary in order to fulfil the demands of the law. This leads to extra prohibitions, specifications of measurements, extensions of the death penalty, and other detailed definitions.208 Such an attitude was different from that of the Pharisees and early rabbis, which was based on tradition. It did, however, influence rabbinic thought in the long run, thus transforming it, too, into a text-based religion, in need of continuous hermeneutical activity and exegetical justification for various norms.209

At the same time, Shemesh agrees with Noam about the similarities between some Pharisees such as the Shammaites and R. Eliezer on the one hand, and sectarian conceptions on the other, although he emphasizes that there is no genetic connection involved. The Shammaites as well as R. Eliezer were Pharisaic, but similarities with priestly tradition existed on points that had actually been common tradition at an earlier stage. Thus it is not a matter of sectarian halakah in rabbinic literature, as Noam phrased it, but rather of old common halakah, known from the scrolls, which survives in some rabbinic texts.210

For the purpose of dating halakic development, Shemesh’s discussion of a reflective versus a developmental model is useful. The former is applicable to issues already debated during the Second Temple period, usually between Pharisees and priestly groups, while the latter can be employed in cases where Sadducees, Qumran sectarians and certain early rabbis seem to agree, at least in part, against later rabbis.

There are, of course, questions about Shemesh’s overall reconstruction. One concerns the case of uncle-niece marriage. Did the Pharisees just de-fend ancient tradition while priestly groups created a new prohibition? We

208 Cf. Shemesh 2006; 2008. 209 Shemesh 2009: 102–104. 210 Shemesh 2009: 133–35.


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know that such marriages were common during the late Second Temple period while other close relationships were customarily avoided, but how ancient was this practice? Would it not be possible that the sectarians were defending an older custom of avoiding uncle-niece marriage, which had no explicit scriptural support? I readily concede, however, that this is not cru-cial for the understanding of the development of halakic argument, pro-vided that uncle-niece marriage actually was the predominant custom at the time when Qumran resistance against it grew. It is precisely in a case like this, where one custom prevails, that proponents of a competing cus-tom may resort to a text-based approach to strengthen their arguments.

More importantly, I hesitate at Shemesh’s frequent equation, sometimes explicit, but often implicit, of Sadducees and Qumran sectarians.211 In par-ticular, I would suggest that the anxious religiosity that Shemesh ascribes to these groups, leading to increasing definitions of legal requirements, extra prohibitions, and expansions justified by exegesis, is more fitting for the Qumran sectarians than for Sadducees in general.212

Noam has recently developed her stance on the relationship between re-alist and nominalist tendencies in Tannaitic literature, focusing specifi-cally on the issue of corpse impurity.213 Noam finds evidence that the es-sential structures of Tannaitic halakah were grounded in a realist understanding of impurity, but that a nominalist conception was layered onto this system as a secondary stratum. The oft-quoted midrash about Yohanan ben Zakkai and the Gentile asking about the red heifer rite (Pe-siq. Rab Kah. 4:7) should not be so readily used as an argument for Tan-naitic nominalist interpretation, since it is late. Noam scrutinizes the laws of ʾOhalot and concludes that a “view of impurity as a living reality as opposed to an arbitrary fiction”214 underlies many of its basic laws. Nomi-nalist elements are tightly interwoven, yet clearly secondary, postdating a basic realism, although the role of thoughts and intent suggests some roots going back at least to the first century CE and the Schools of Shammai and Hillel. Noam thus agrees with Rubenstein’s corrective argument, against Schwartz’s schema. Where I tend to disagree with Noam is when she claims that realism, too, is a post-biblical creation, and that Scripture also contains many nominalist trends or tendencies. While one could, with

211 For a discussion of differences between Sadducean and Qumran halakah, see

Regev 2005. 212 Cf. Schremer (2001: 108–13) on the sense of guilt associated with a “return to the

text” that is displayed in Qumran, which Schremer relates to Soloveitchik’s analysis of the recent shift in the mode of religiosity in contemporary orthodox Judaism (105–108).

213 Noam 2010a. Cf. her discussion of creative versus integrative interpretation in Qumran (Noam 2011).

214 Noam 2010a: 76.


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Noam, regard both approaches as “artificial constructs that do not stem directly from Scripture,” and agree that “[n]evertheless, the realistic one is obviously closer to biblical principle and appears to be the earlier and more basic of the two within the Tannaitic structure,”215 Noam finds the triggers for both approaches in biblical purity law. As triggers for later exegetical activity this may be the case, but most of Noam’s examples of biblical roots for nominalist interpretations can be understood otherwise in their context, unless one assumes, as Noam seems to do, that realism re-quires “a coherent system of ‘natural laws of impurity’.”216 Noam also points to the fact that the Tannaitic concretizations of impurity seem to be dissociated from a demonic world-view; hence there is no necessary con-nection between a realist conception of impurity and demonic fear, as in some anthropological theories. While this is true to some extent, I would rather argue on this point that a “de-mythologized” realism becomes sus-ceptible to nominalism and easily develops in that direction, precisely be-cause it has censored the demonic and dynamic aspects to such an extent that the relationship between purity law and the “real” and “natural” world, as it is generally understood, has become blurred. Some of this de-velopment probably began during the Second Temple period.

So far we have not discussed the use of exegetical and interpretative techniques in terms of the rabbinic middoth. These are rules of interpreta-tion found in rabbinic literature in various stages of development. Seven basic middoth were attributed to Hillel (t. Sanh. 7:11), extended to 13 at-tributed to R. Ishmael, and 32 attributed to R. Eliezer ben Jose ha-Galili.217 They were continuously elaborated on; Instone-Brewer points out that in the 19th century, R. Meir Loeb ben Yehiel Michael was able to ex-tend them to 613, the same as the number of precepts in the Torah.218

The rabbinic middoth will neither be fully outlined, nor extensively dis-cussed, in this study. Not even the “original” middoth of Hillel can be shown to go back to Second Temple times, at least not in the form of a list of seven interpretative rules.219 Several of these, however, are based on

215 Noam 2010a: 98. 216 Noam 2010a: 98. Noam points out that some internal contradictions and incon-

gruities in the Tannaitic purity system have been created through tensions in the biblical text. This is true, but we must then ask whether this depends on the presuppositions and more complicated and detailed reasoning of the Tannaim rather than on something inher-ent in the purity “system” of the scriptural text, which rests on a much simpler thought-world.

217 Wansbrough 2000: 220–21; Brooke 1985: 8–17. 218 Instone-Brewer 1992: 4. 219 Neusner 1971: 1:240–42. The story which has been appealed to when claiming

that Hillel received the middoth from his predecessors (b. Pesaḥ. 66a; cf. t. Pis. 4:13), is clearly legendary, besides not really demonstrating the case. For more detailed discus-


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common sense, and “at least the first two [qal wahomer and gezerah sha-wah], are simply Aristotelian rules of logic and had been current in the Mediterranean world for centuries before Hillel.”220 This does not mean that they were formulated into anything like a system. Qal wahomer is a simple deduction from the minor to the major (a minore ad maius), or vice versa. Gezerah shawah is an argument from analogy, which exploits ver-bal similarities in order to use one text to interpret another. Instone-Brewer distinguishes between two types of gezerah shawah: the first type simply appeals to the use of a word or a phrase in one passage to define an unclear use in another passage; the second type interprets one text in the light of a second, with which it shares a word or a phrase.221 These are common procedures and to a large extent correspond to the primitive use of Scripture discussed above, which suggests early traditions and early arguments. They often agree with a plain sense of texts, for which the term peshat was later used.

Many other interpretative techniques listed with the rabbinic middoth become more complex and move away from a plain sense of the text. For example, binyan ab goes beyond simple analogy to construe a principle from one text, which can be applied to another in which the same phrase can be found; “a specific aspect found only in one text from a series of correlated biblical passages is applied to all of them; in this way the basic text gives all the others a common character setting them up as a fam-ily.”222 There seem to be no clear examples of this in the New Testament, and Instone-Brewer suggests that it is not present in pre-70 scribal inter-pretation either.223

Instone-Brewer construes a schema with four modes of exegesis: pe-shat, nomological, ultra-literal, and derash. The terms peshat and derash are consciously used anachronistically, since they did not receive their technical meaning until after the Amoraic period. Instone-Brewer suggests that the nomological and ultra-literal readings are steps from the plain pe-shat to the hidden derash. A nomological reading interprets Scripture as a legal document and assumes that there are no errors or superfluous phrases, which at times results in strained interpretations and what we would regard as a search for hidden meaning, although the interpreter sions with references to the sources and the scholarly debate, see Brooke 1985: 8–17; Instone-Brewer 1992: 4–7.

220 Wansbrough 2000: 221, going back to Daube 1949. 221 Instone-Brewer 1992: 17–18. Instone-Brewer also adds heqesh as a variant of gez-

erah shawah, bringing together texts with a similar topic or theme, rather than a similar word. Although not singled out as one of Hillel’s middoth, it is a technique being used in the same context (1992: 18).

222 Basta 2011: 125. 223 Instone-Brewer 1992: 19; Wansbrough 2000: 223.


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would probably understand this as the plain sense. An ultra-literal reading,

on the other hand, exploits literal meanings of words and phrases, at times

even against their plain or idiomatic sense, thus producing secondary or

hidden meaning. The latter is the goal of the derash mode of interpreta-

tion, which can ignore both the plain sense and the literal meaning of a

text.224

The present study will use neither the rabbinic middoth, nor the four

modes of exegesis outlined by Instone-Brewer, as primary categories for

analyzing the material, although some of them will be occasionally re-

ferred to. My focus is not on exegetical techniques as such, but on tenden-

cies and trajectories in halakic development, and my main analytical tools

are the two basic models and the three areas of tension outlined by

Shemesh. We should note, however, how scriptural arguments for text-

based halakic innovations, as well as early scribal or rabbinic defences of

more traditional practices, often use these simple interpretative tech-

niques, which rely on plain readings of Scripture. More complicated and

contrived exegetical methods usually signal later developments, in which

nominalist arguments and secondary or hidden meanings are given much

more prominence.225

It is, of course, true that we have an early Jewish example of advanced

allegory in Philo of Alexandria, with forerunners in the letter of Aristeas

and similar texts. Also, Paul’s interpretation of Scripture is more advanced

in this regard than that of the gospels. Paul, however, seldom (i.e., very

occasionally, and if so, in a limited way) uses allegory, and there is little

evidence for that method being employed in texts from Jewish Palestine.

When Paul interprets Scripture he rarely looks for hidden meanings; most

of the times his interpretations can be classified as a form of gezerah sha-

wah.226

In any case he does not come close to the more advanced nominal-

ist interpretations that we find in later rabbinic texts.

1.7 The way forward – in this case

In the present study I analyze synoptic gospel narratives of Jesus’ conflicts

on issues relating to the Sabbath, purity and divorce, in order to disentan-

224

Instone-Brewer 1992: 14–17. 225

Cf. Instone-Brewer’s claim that derash, although it became very important in rab-

binic exegesis, “is almost entirely missing from scribal [i.e., pre-70] exegesis” (1992:

17). 226

Basta 2011; cf. Longenecker 1999 (1975): 88–116, who finds examples of all sorts

of rabbinic interpretative techniques in Paul, but with numerous examples of the gezerah

shawah in the joining of scriptural texts on the basis of key words.


49

gle the different motives involved, and if possible assign them to various

levels. This is what Peter Tomson calls “the most thorny problem: the en-

velopment of halakic discussions of Jesus and contemporaries in the suc-

cessive stages of the synoptic tradition.”227

My task is, in particular, to

suggest which of these motives can plausibly be assigned to the historical

Jesus.

In order to do this I use a similar outline for each topic. First, I map the

state of discussion, noting some of the most important contributions to the

subject during recent decades, and identifying debated areas. Secondly, in

each chapter I discuss the relevant gospel texts, employing source and re-

daction-critical analysis, including synoptic comparison. The main point at

this stage is not to bring forth the historical Jesus, but to gain a deeper and

more detailed understanding of the traditions involved. Thirdly I try to

outline contemporary halakah relevant to the issue. It is here that “the new

turn” described above influences my work, since it provides additional

tools for understanding and evaluating halakic practice at the end of the

Second Temple period. This becomes even clearer during the fourth step,

when I compare possible motives for Jesus’ conflicts with motives and

principles behind contemporary halakic development.

During the third and fourth step I outline halakic practice and analyze

its development, making use of the basic principles of attribution and logi-

cal precedence as shaped by Neusner and Stemberger, including some of

Instone-Brewer’s additional criteria, to identify early Tannaitic traditions.

Above all, I take a comparative approach, based on Tannaitic and Qumran

halakah, but also involving evidence from other contemporary Jewish

texts, when available, such as Philo, Josephus, and including the New Tes-

tament. Since each halakic case must be judged by its own merits, I sug-

gest hypotheses about the development of legal interpretation in various

areas, based on available evidence. In doing this, I try to balance develop-

mental and reflective explanations.

I continuously relate my discussion to the three areas of dissent or ten-

sion that are identified by Shemesh (and to varying degrees and in various

shapes discussed by others, too). The issues that these tensions concern

often come very close to the issues that surface in the Synoptic conflict

narratives; hence an understanding of the role that these tensions play

through the history of halakic development can help us when dealing with

the motives ascribed or implied by the conflict narratives. The two basic

227

Tomson 2010a: 193. Tomson continues: “Reconstructing the development of the

pertinent halakhah in the first century will enable us better to appreciate what were prob-

able discussions between Jesus and Pharisees, and what must be assigned to subsequent

generations.” This statement could almost serve as a summary of my task.


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models of relating halakic material and three areas of dissent outlined by

Shemesh are thus used as crucial tool for my analyses.

In the case of revelation versus (human) exegesis or interpretation, a

developmental model is the most reasonable. The old halakah assumes a

view of divine revelation as authoritative, which is closer to Qumran than

to the later rabbinic emphasis on human exegesis in the light of the cessa-

tion of prophecy. There is reason to suspect that gospel references criticiz-

ing innovative exegesis are late and result from early Christian interpreta-

tion of the Jesus tradition in the light of evolving halakic tendencies, while

undefended statements out of a “prophetic” authority may be early and

more likely to reflect the stance of the historical Jesus – although this is no

warrant for understanding Jesus as claiming a unique status, but could just

as well be associated with general views of prophecy and prophetic prior-

ity.

The tension between Scripture and tradition or custom fits better with a

reflective than with a developmental model. To some extent this category

may seem to overlap with the previous one, but note that it is not a ques-

tion of Scripture versus halakic interpretation, since halakah can be based

either on Scripture or on oral law or custom. This is rather a question of

how to ground or motivate halakic practices: in Scripture or in custom?

When we encounter concepts such as “traditions of men,” we should thus

ask ourselves whether the emphasis lies on human interpretation (exege-

sis) or on inherited custom? The tension between Scripture and tradition

or custom was a live issue during the Second Temple period: what author-

ity could a custom claim if it was not stated explicitly in Scripture? When

this tension surfaces, or when custom versus Scripture is conspicuously

appealed to in the Jesus tradition, it is often possible to suggest an early

origin for the contents. That is no guarantee, however, since this tension

does not follow a developmental model, but can be found at a later stage

as well. Motives associated with this tension are thus made possible on the

level of the historical Jesus, but other arguments are badly needed.

The third and highly interesting tension, between realism and nominal-

ism, can be expressed in a number of ways. This issue can be explained by

a predominantly developmental model, and from the discussion above it

has become clear that I think realism clearly represented the dominant

world-view during the Biblical as well as the late Second Temple period.

This attitude also survived as a minority opinion into the rabbinic period,

although nominalism increasingly gained the upper hand. At the same

time, many of the examples of realism in Qumran texts, which Schwartz

discusses in his seminal article, assume the existence of competing con-

temporary views with at least some nominalist traits. Noam’s suggestions

of some possible early roots for a nominalist approach must also be taken


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into account. This means that a reflective model should also be consid-

ered. Although gospel traditions relating to, or interacting with, nominalist

approaches must be suspected of reflecting early Chistian (i.e., post-70)

polemics, some of them could possibly have earlier roots, in the late Sec-

ond Temple period. As usual, each case has to be argued separately. When

developed nominalist conceptions are reflected in the debate the material

is likely to be of late origin. On the other hand, arguments from “the foun-

dation of creation,” from the natural order of things, or from reality and

experience, would have gained a much better hearing in a Second Temple

period setting than in a later rabbinic one. Such references in the Jesus

tradition may therefore indicate an early origin.

After having in this way dealt with Jesus’conflicts in issues relating to

Sabbath observance, purity rules, and matrimonial law, I will finally dis-

cuss my results, evaluate the use of halakic development as a methodo-

logical tool, and reflect upon the implications of my work for historical

Jesus research in general.

Scripture, Interpretation, or Authority? Motives and Arguments in Jesus' Halakic Conflicts

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Transcript of Scripture, Interpretation, or Authority? Motives and Arguments in Jesus' Halakic Conflicts