Good Question: Was the burial of Jesus a temporary
one, because of time constraints?
[Original draft Date: May 26, 2002 | Summary | Final Draft Update: Oct 3, 2002]
I received two questions about this, referring to two articles by friends of mine (Jeff Lowder, Richard Carrier). Here are the questions that came in:
I would like you when you get the
chance to do a rebuttal of Jeff Lowder's Article on Jesus being moved after the
first burial of his body. http://www.infidels.org/library/modern/jeff_lowder/empty.html
…This has bothered me a little lately and I have not seen any good rebuttals of
it so far!
And this one:
A skeptic has argued that Jesus was reburied on Saturday night and his
body could not have been in the tomb Sunday morning.
He posted this site: http://www.secweb.org/asset.asp?AssetID=125
This is an excerpt from the site:
"Such use of ‘temporary tombs’
is attested in the Semahot, where temporary burial is implicit in the rule that
“Whosoever finds a corpse in a tomb should not move it from its place, unless
he knows that this is a temporary grave” and in the story told that “Rabban
Gamaliel had a temporary tomb [lit. ‘a
borrowed tomb’] in Yabneh into which they bring the corpse and lock the door upon
it,” just as Joseph does with Jesus, “Later, they would carry the body up to
Jerusalem.”[20] This means that, as there was a commandment to bury the body
the night of death, except when something like a Sabbath intervened, Joseph
would have been required to place Jesus in a temporary grave and formally bury
him Saturday night. So the body could not have been in Joseph’s tomb Sunday
morning when all four Gospels claim the women visited it. Though they find it
empty, by then his body would have to be, by law, in the graveyard of the
stoned and burned."
Jeff's article contains many more important issues than just that of the re-burial thesis (since his article is more an analysis of Dr. Craig's broader defense of the Empty Tomb story), and I will have to contain my remarks to an examination of the argument common to Jeff and Richard, dealing with the re-burial thesis. Jeff uses the same sources as Richard does (and I cannot find any divergence of argument in the relevant section of his article), so I feel comfortable treating Richard's article alone. Richard's article is focused specifically/exclusively on the re-burial scenario, and his article contains the most detailed defense and development of the case for re-burial (of the two), so I will focus on it. I personally enjoy both the writings and occasional email exchanges I have had with Jeff and Richard, and always profit from reading and thinking through their material. This topic is also of interest to me, since I have not seen this argument before.
The layout of Richard's argument is something like this:
Astute observers will no doubt recognize an immediate problem (still present in the updated article) with the apparent inconsistency between points 3 and5/ 6. The rabbinic data that Richard carefully adduces does not argue that the corpse must be "down" by sunset, but rather "FORMALLY BURIED" by sunset. (The 'buried' word appears in all the sources he cites: Deut, Mishnah, Josephus.) To make such a good case for this, and then turn around and argue that Joseph only 'stored the body'--WITHOUT actually "rabbinically burying" it--creates a huge potential problem for his position. If he didn't legally bury the body, then J of A violated this allegedly sacrosanct moral boundary (which created the 'time urgency' needed for Richard's argument to begin with); if he DID legally bury the body, then he didn't bury it in the 'graveyard of the condemned' like he was supposed to (which was what originally created the 'need to re-empty the tomb' for Richard's argument)…As we shall note below, the only acceptable reasons to delay burial were to increase the honor of the burial (certainly not applicable in Jesus case)…See the initial problem?
But let's go ahead into the analysis…
………………………………………………………………………………………………………………..
Before we get into the substance of his argument,
let us note that Richard has added a helpful clarification of the point of his
updated article. He explains that he is not trying to prove that his scenario
of the temporary storage is what 'actually happened', but rather that it is a
'possible natural explanation' for the empty tomb story, based upon the
sources.
This is all well and good, of course, but I would
like to point out that 'possible' (when used by historians) is different than
'possible' when used by scientists. A scientist might use possible to mean
something like 'conceivable' or 'with a smidgeon of statistical probability
among alternatives', whereas a historical normally means 'plausible' or
something 'predictable, given the historical situation'. For a scientist, for
example, it is 'possible' that Jesus was crucified like every other victim of
the time: He suffered on the Cross for 2-4 days before expiring, wasn't taken
down during Passover, and gradually decomposed on the Cross over the next year
or so--as a warning to Jews. This is what 'normally' happened to Roman victims.
It is a natural 'possibility' (even though it contradicts the sources and
historical situation).
On the other hand, historians would not call that a
'possibility'--because it is not a 'plausible' scenario. The strictures of
culture and custom of the day--in the Roman province of Judea--would have
rendered this outcome 'statistically unlikely'. Of all the 'naturally possible'
scenarios, only a few will be actually 'plausible' or 'preferable'. The more
the scenario predicts the 'texture' of the resulting historical 'residue', the
more plausible the scenario will be considered.
Applying that to our case here, the most plausible
scenario--historically speaking--will be that which (a) explains the texture of
the New Testament and the rise of the faith of the early believers; and which
(b) does not contradict known 'fixities' in the given culture/historical
situation.
The overall nature of Richard's argument will be
that the 'fixities' in the cultural situation (i.e., the legal system described
in the rabbinics) will preclude the body of Jesus still being in the tomb when
the women arrive on Sunday morning. Of course, his position will also require dismissal of the elements in the gospel accounts which portray
the tomb location as being known by others than Joseph: Nicodemus, the likely
burial 'company' involved, any household servants involved, the authorities
(who conceivably accompanied them, given the portrayal of their paranoia), and
the women--most of whom are mentioned are implied in the gospel narratives.
[This is a separate problem, and the required 'fabrication' of the gospel
narratives I simply cannot take up here in detail.]
The issue for our article, then, will be a simple
one: do we have adequate reason to believe the legal situation/context Richard
depends on for his argument actually exists,
and at the same time, are there that render the normal applicability of that
alleged legal/cultural situation invalid?
First, and most importantly, we should note the deeply
problematic use of rabbinical literature for understanding this period, with
much of modern scholarship in sharp disagreement with the position taken by
Richard .
We live in a post-Neusner world! Modern confidence in being able to decide whether/how a particular passage in the Rabbinics applies to pre-70 Judaism(s) has been severely reduced, due to the methodologically rigorous work of Neusner, his students, and even his combatants (e.g. E.P. Sanders). Scholars publishing in the last two decades of the twentieth century have consistently issued 'disclaimers' and offered 'caution' in their use of this material, largely due to the work of Neusner and Co.
Consider this lengthy description of the problem, from his Introduction to Rabbinic Literature [HI:IRL:653]:
"Now to generalize: with documents such as those of rabbinic Judaism, bearing no named author, coming to us in an indeterminate and sparse textual tradition, we have yet to formulate a valid means for dating, or even a clear definition of what we might mean by assigning a date to a document. It is easier to explain what we do not now know than to define what we should want to find out. This minimalist position of course contradicts the maximalist one that reigns in the standard accounts of rabbinic documents and their dates.
"That position assigns very specific dates to the various rabbinic documents; these assignments take for granted a position rejected by nearly the entire academic world, which is, believe everything unless you find reason to doubt something, the formulation regnant at last glance in the Jerusalem school, the Jewish seminaries of the United States, and other centers of the study of Judaism other than academic ones. Since all documents present numerous attributed statements, we date the various documents in accord with the assumed dates of the authorities that are cited in them. Now this conception, gullible and primitive and nearly universally rejected, yields groupings of documents, e.g., before 200 are "Tannaite" in that all the authorities in said compilations are assumed to have flourished in the first and second centuries. Not only so, but attributions date sayings within documents, so the date of 200 signifies not only closure at that time but also the latest date for whatever is unattributed in the document; much that is in the document, in accord with this theory, is much earlier.
"Most
talmudic historians, and all of them in the State of Israel, accept as fact all attributions of sayings and
therefore assume that if a document's authorship presents a saying in a given
sage's name, that sage really made such a statement, which therefore tells us
what he, and perhaps others, were thinking in the time and place in which he
lived. A corollary to this position is that a saying that bears no
attribution is "earlier than" a saying that has one. Hence what is
anonymous is older than what is assigned (how much older depends on the
requirement of the person who assumes that fact). If, for instance, we have a
named saying and, in context, an anonymous one that bears a contrary view, the
anonymous saying is not deemed contemporary with the named saying on the same
topic but earlier than the assigned one. It goes without saying that much
energy goes into restating these propositions, but not much has been invested
in demonstrating them. That is because they lie far beyond the limits of the evidence. Still, these two
complementary positions presuppose a literary process in which sayings
circulated independently of the documents in which they (later on) are written
down and took shape within the circle of the disciples of a master to whom they
are attributed. The position on the literary
process that yields the documents that now contain these sayings has not yet
been squared with the literary traits of those same documents, and
analysis of those traits scarcely sustains
the hypothesis of inerrant attribution and its corollary. These
results of course also dictate the dates of documents. Tannaite documents
contain only authorities who occur in the Mishnah, so they all are supposed to
originate before ca. 200, even though, as a
matter of fact, they ordinarily cite the Mishnah and therefore ought to be
dated later than the Mishnah, after 200, and I think, much later.
"I do not exaggerate. Consult any encyclopedia, and you will find that the Mishnah was redacted in 200, the Talmud of Babylonia in 500, and so on and so forth. One consideration makes improbable the certainty that presently prevails. The established protocol for dating a document rests on the premise that statements attributed to a given rabbi really were said by a historical figure, at a determinate time, and so permit us to date the document at the time of, or just after, that figure; if all the rabbis of a document occur in the Mishnah as well, then that document is assigned to the period of the Mishnah and given a date of ca. 200. If the last-named rabbi of a document is assumed to have lived in ca. 500, then the document gets the date of 501. In general, documents presently are dated by reference to the names of the authorities who occur in them, e.g., if the last-named authority is a rabbi who flourished in the Mishnah's period, the document as a whole is assigned to "Tannaitic times:' that is, the first and second centuries, when, it is generally supposed, the Mishnah came to closure. But that date then presupposes the reliability of attributions and does not take account of pseudepigraphy in the rabbinic manner. The same sayings may be assigned to two or more authorities; the Talmud of Babylonia, moreover, presents ample evidence that people played fast and loose with attributions, changing by reason of the requirements of logic what a given authority is alleged to have said, for instance. Since we have ample evidence that in later times people made up sayings and put them into the mouths of earlier authorities (the Zohar is only the best-known example!), we have no reason to assign a document solely by reference to the names of the authorities found therein.
"But no other basis for dating documents--than gullibility about their contents-- has yet been devised, and since language usages are dated (in the Judaic and Jewish institutions) in accord with the dates of sages to whom sayings are attributed, dates that derive from Gaonic historians who flourished half a millennium after the times of those to whom they assign precise dates, philology provides no help whatsoever. Not only so, but the so-called philological dating, based on language usages, rests on precisely the same premise. If a saying is attributed to Aqiba, that means the usage of language in that saying attests to first- or early-second-century conventions, and, consequently, other such usages also place the documents that contain them in the first or early second century. What we have therefore is simply an extension, to the dating of documents and of their contents, of the familiar gullibility and credulity of talmudic studies: our holy rabbis really made these statements, so the rest follows."
Compare the statements of Marc Bergman, in "Pseudepigraphy in Rabbinic Literature" [HI:PPAPLDSS], in which the foundation of dating (attribution) appears gossamer:
"Considering the fact that the Rabbis seem to have no qualms about putting words in the mouth of God and biblical characters, such as Moses, it should perhaps come as no surprise that they might occasionally put words in the mouths of fellow rabbis. Nonetheless, the aspect of rabbinic pseudepigaphy [sic] which has elicited the most scholarly discussion is the sometimes unreliable ascription of statements and traditions to named rabbinic sages." (p.31f)
"A number of detailed studies have shown that particularly in the Babylonian Talmud there are statements which are incorrectly and probably even falsely attributed, fictitious baraitot (i.e. tannaitic statements not found in the Mishnah) and stories about sages that seem more legend than history." (p.33f)
So, when we get to looking at modern 'disclaimers' in the scholarly literature, we see the effects of this (e.g., R.E. Brown and John Meier)):
"We must be careful to recognize
limitations in our knowledge of burial practices in Jesus' lifetime. Even
before recent sensitivity about the limited applicability of
the Mishna to Jesus' time, and therefore about mishnaic rules
for burying the bodies of the condemned, Buckler recognized that the references to burial in Josephus indicated a different situation in
the 1st cent. from that envisioned by later information." [DM:1206,
n.1; note, by the way, that the unquestionably early Josephus differs from the
rabbinics on details about burial
practices!]
"Some
aspects of the mishnaic practice were surely
ideal or reflect a post-NT situation…" [DM:1210]
"It
was common among older Jewish scholars to rely heavily on the Mishna (ca. A.D.
200-220), the Tosepta (3d century), the Palestinian (or Jerusalem) Talmud (5th
century), and the Babylonian Talmud (6th century) as well as the rabbinic midrashim. from various centuries to
reconstruct the historical Pharisees and Sadducees. More recently, Jewish scholars like Jacob Neusner and Shaye Cohen, as
well as Christian scholars like E. P. Sanders and Anthony Saldarini, have urged
greater caution in the use of rabbinic literature to delineate the very different
conditions of Judaism in pre-70 Palestine." [MJ:3:305]
In other words, one cannot assume they apply 'backward in time'--each application has to be evaluated separately.
We will have to use the material, of course, but we had better remember the 'softness' of conclusions drawn therefrom.
The injunction of "case by case" often noted by scholars, is appealed to by McCane (a source referred to by Richard). We can use this to illustrate the complexity of the subject…
McCane argues:
"Comment is called for here on current scholarly suspicions regarding the value (or lack thereof) of the Mishnah as a historical source for the world of Jesus. Of course one cannot naively assume that this third-century text preserves reliable information about first-century Jewish life. In many cases it demonstrably does not. On the specific topic of burial practices, however, there is strong evidence in favor of using the Mishnah. First, at points where it can be checked against the archaeological evidence the Mishnah has already been shown to be accurate. m. B. Bat. 6:8, for example, records a rabbinic discussion about the ideal dimensions for burial niches, and the dimensions given in the Mishnaic text correspond closely to the actual dimensions of so-called "loculus" niches typically found in first-century Jewish tombs in Palestine. m. B. Bat. 2:9 stipulates that tombs should be located at least fifty cubits outside of a town or city, and archaeology confirms that this practice was typically followed both in first-century Jerusalem and at Qumran. Second, it is an anthropological commonplace that burial practices change very slowly. Theological ideas about death and the afterlife are typically vague and fluid, but burial practices and customs have a weight and mass all their own. From this point of view, there would be nothing particularly remarkable about a third-century text which accurately preserved information about burial customs from two centuries earlier. For these reasons I do not hesitate to make critical use of the Mishnah--along with the tractate.Semahot--in conjunction with other sources of evidence on this specific topic" [McCane, [NT:AAJ:437, n.9]]
In note 8, he had accepted
Zlotnick's dating (1966) of the Semahot at the end of the third century.
Working backward, let's look
at these three issues (Semahot,
fixity of burial customs, archeology):
1.
On the Semahot:
If we first remember that
the Neusner quote above pointed out the 'gullibility position' of accepting (a)
attributions; (b) philological arguments; and (c) half-a-millennium-later
historical/Gaonic judgments, and we then look at
Zlotnick's summary of his reasons for dating Semahot "early", we find
an amazing correspondence:
"We have thus found
nothing in Sm pointing decisively to a late date. On the contrary, it can now
be stated that the latest authorities mentioned in the text are the Tannaim of
the fifth generation, Rabbi Judah the Prince and his contemporaries [Neusner's
'attribution' issue!].
Moreover, the language is Mishnaic Hebrew, and its style and structure, the
literary formulation and sequence of the Halakah and the Aggadah, is always
that of the Tannaim [Neusner's 'philological' issue!]. In the absence of further textual evidence
and in view of the fact that Sm is clearly identified as Tannaitic by the Gaon
Natronai and by all the medieval scholars [Neusner's
'half-a-millennium later' issue!] , it seems preferable to submit to the authority of the ancients and
suggest an early date--the end of the third century." [HI:Sema:8-9]
In the Dictionary of Judaism in the Biblical Period,
Neusner and Green give this entry for 'Semahot'--notice
the difference usage of the same data
adduced by Zlotnick:
"Semahot a minor rabbinic tractate on death
and mourning, published with the Babylonian Talmud; euphemistically titled
joys, though also known as Ebel or Ebel Rabbati, that is, Mourning. Absent from
the Talmud's Munich manuscript, Semahot appeared in the first printing of the
Babylonian Talmud (Venice, 1523). The earliest references to it are by
Franco-German scholars of the eleventh century C.E. Contrary to medieval
commentators, it is not clear whether references at B. Moed Katan 24a and 26b to a tractate on mourning attest
Semahot in particular…Scholars place the
final redaction of Semahot in the mid-eighth century C.E. Since it is in Mishnaic
Hebrew and the latest rabbis it cites are third century-C.E. contemporaries of
Judah the Patriarch, it may contain earlier material.
Its fourteen chapters discuss the legal status of a dying man, treatment of
corpses of suicides or those who were executed, burial practices, and the laws
that apply to mourners in the first seven and thirty days after burial. Chapter
8 contains a detailed martyrology. [HI:DictJBP,
s.v. 'semahot']
2.
On the anthropological commonplace of the relative fixity of burial practices:
The period in which we are
interested in is actually one of very high--and easily documented by the
archeaologists--change!
"In summary, what is most extraordinary in the Jewish
burial customs of the Second Temple period is the astonishing fact that
within a comparatively short span of time burial practices, which are
typically among the most conservative customs in a society, underwent rapid changes. Loculi tombs appear with primary
coffin burials, and within a century secondary burials in ossuaries in similar
loculi tombs becomes the prevalent custom, a practice lacking parallels in any
other contemporary neighboring culture. At the same time, these customs were
short-lived and show little affinity with either the earlier Israelite customs
or the later Jewish rituals of late antiquity which contain only traces of these Second Temple customs.
Furthermore, archaeological investigation has been unable to uncover the causes
for these ossuary burial innovations.
It may be conjectured that the Jews blamed their loss of independence and their
state, in 6 C.E. [sic], on their sinful behavior; the custom of secondary
burial of the bones in ossuaries, after decay of the flesh, may have become a
way to expiate sins. The later Beth-shearim necropolis (3d–4th century c.e.) shows the practice of individual
burial in various kinds of sarcophagi and was a central cemetery for Jews both
in the land of Israel and in the Diaspora." [Rachel Hachlili, [ABD, s.v. "Burials (Ancient Jewish)";
note: Hachlili is cited in McCane's references in his footnote 9.]]
3.
On the congruence of archeology with Mishnah/Semahot stipulations:
I am not sure I understand
McCane's data here, frankly. Baba Bathra
gives a niche size of approximately 6 ft by 1.5 ft by 1.5 feet, and the
excavations at Jericho and some of the Jerusalem data seem to have different dimensions:
"The tombs found in these two cemeteries [Jerusalem, Jericho] may
be divided into two types: the first consists of rock-hewn loculi tombs and the
second type is a monumental tomb which is rock-hewn and has a memorial or nefesh standing next to or above it. Two
basic tomb plans exist: one is called the loculi type (kokhim) and the other is the arcosolia.
Some tombs are equipped solely with a burial room. Both types of plans are
found in the Jerusalem necropolis, but the Jericho cemetery consists only of
loculi tombs which are hewn into the hillsides. Both serve as family tombs but
with provision for separate burial of each individual…The form of the loculi
tomb consists of a square burial chamber, often with a pit dug into its floor
to enable a man to stand upright. From one to three arched loculi 1 m high
and 2 m
long (kokhim) are hewn into
three walls, the entrance wall excepted." [Hachlili again, [ABD, s.v. "Burials (Ancient
Jewish)"]
But many of the tombs DO conform to the
dimensions in the Mishnah, but I am not sure this proves very much.
We have other data that indicates that the
Mishnaic portrayals are NOT necessarily representative:
We have already noted that Josephus' descriptions are at odds with
them (and not
'minor points of interpretation'):
"We must be careful to recognize
limitations in our knowledge of burial practices in Jesus' lifetime. Even
before recent sensitivity about the limited applicability of the Mishna to
Jesus' time, and therefore about mishnaic rules for burying the bodies of the
condemned, Buckler
recognized that the references to burial in Josephus indicated a different
situation in the 1st cent. from that envisioned by later information."
[DM:1206, n.1; note, by the way, that the unquestionably early
Josephus differs from the rabbinics on details about burial practices!]
"According to Rabbi Eliezer in the Mishnah (Sanhedrin 6:4), all who are stoned are hanged on a tree afterwards. The other rabbis say (ibid.) that only the blasphemer and the one who worships an idol are hanged, whereas Josephus restricts hanging to the blasphemer. Goldenberg (66-68), in disagreement with Weyl (1900:30-31), declares that Josephus is, in this respect, in accord with the earlier uncontroversial tannaitic halakhah that was contemporary with him [tn: concerning who is hanged]. See Weyl (1900:30-31). According to the Tosefta (Sanhedrin 9:11), the mildest and most humane form of death must be sought. A baraita in the Talmud (Sanhedrin 46b) states that the verdict is delayed until just before sunset. Then judgment is pronounced and the culprit is put to death immediately. Then, in order to fulfill the requirement of hanging, one person ties him up and immediately thereafter another unties him and takes him down. Goldenberg (68-71), noting that this tannaitic statement apparently contradicts Josephus, who says here that the blasphemeer is stoned and then hanged for a day, suggests that the tannaitic description of the hanging does not reflect actual practice but is rather a theoretical interpretation of Deut. 22:21-23. " [HI:FJTC3:401, note 596, on Ant 4.202]
"Kohler (1931:72-74), however, remarks that the
Mishnah (Sanhedrin 4:4) by no means makes it imperative to hang up the corpse
after the execution. Weyl (1900:48) concludes that Josephus is here preserving a law unparalleled in Halakah." [HI:FJTC3:401,
note 597, on Ant. 4:264]
Essene
burial customs are also somewhat at variance:
"Essene Burial Customs.
One sect of Jews during the 1st century c.e.
the Essenes, practiced
a completely different primary burial in individual graves as
evidenced by their cemeteries at Qumran and En el-Guweir. The main cemetery of
Qumran is located E of the settlement and contains some 1100 graves (de Vaux
1973). Its organized plan consists of rows of single graves, usually oriented
N–S. The graves are marked by oval-shaped heaps of stones placed on the
surface. Several graves contained signs of wooden coffins. Most of the
excavated tombs contained individual burials; male interments only were found
in the main cemetery (de Vaux 1973:46, pls. XXV–XXVI; Bar-Adon 1977:12, 16,
figs. 19–20). On the outskirts of this cemetery and in the smaller cemeteries
of Qumran, a few females and children were interred. The large number of males
found in these graves compared to the small number of women and children might
point to the importance placed on celibacy in this community…The Essene burial
practices have a
few elements
in common
with those of the Jerusalem and Jericho cemeteries. The coffin burials at Qumran,
though later in date, are comparable to those found at Jericho. Grave goods
were discovered with women and children at Qumran and En el-Guweir, as well as
remains of mattresses and cloth (indicating that the dead had been wrapped in
shrouds). Broken storage jars were discovered on top of the graves at En
el-Guweir and Qumran, probably a custom parallel to that of placing storage
jars outside the tombs at Jericho…The contrasts in these burial practices
indicate differences in religious philosophy toward the dead among the Jews of
this time and reflects the separation of the Essenes from more mainstream
Judaism. Single-person burials at Qumran and En el-Guweir cemeteries stress the
importance of the individual rather than the family." [Hachlili, [ABD, s.v. "Burials (Ancient
Jewish)"]
And even the 'very Rabbinic'
site at Beth-shearim shows many differences:
"The Beth-shearim Necropolis.
The Jewish necropolis at Beth-shearim (M.R. 162234) was the central burial
ground for Jews from the land of Israel and neighboring areas. The majority of
the catacombs date to the 3d–4th centuries. Beth-shearim was expanded after the
death of Rabbi Judah in the latter part of the 3d century. The terminus ante quem for the catacombs is
the date of their destruction in the year 352 c.e.
(Avigad 1976:260)…The Beth-shearim burial place consists of catacombs, with a
frontal courtyard and portals constructed of stone doors imitating wooden doors
with nails (Mazar 1973:Plan 1–5; pl. VI; Avigad 1976: figs. 3–5; pls. 25:1;
27:2; 28:1). Several burial halls spaced out along a corridor were hewn in the
rock (see Avigad 1976: fig. 31). The graves were mainly loculi or arcosolia
types and it
is clear that burial customs—that is, primary inhumation in arcosolia, coffins,
and sarcophagi—have little in common with those of the Second Temple period.
On the walls were carved, painted, or incised decoration, in a popular art
style. Decorated marble or clay sarcophagi contained the primary burials of
local Jews or the reinterred remains of those returned from the Diaspora (Mazar
1973; Avigad 1976). By this time burial had become a commercialized, public
enterprise and was directed apparently by the burial society (Hebrah Kadisha), who sold burial places
to any purchaser (Avigad 1976:253, 265)." [Hachlili, [ABD, s.v. "Burials (Ancient
Jewish)"]
Indeed, the rabbinic literature itself documents a number of funeral custom innovations of the period. For example, b Moed Katan 27a-b lists a number of innovations that occurred in burial procedures:
"GEMARA. Our Rabbis taught: Formerly they were wont to convey [victuals] to the house of mourning, the rich in silver and gold baskets and the poor in osier baskets of peeled willow twigs, and the poor felt shamed: they therefore instituted that all should convey [victuals] in osier baskets of peeled willow twigs out of deference to the poor. Our Rabbis taught: Formerly, they were wont to serve drinks in a house of mourning, the rich in white glass vessels and the poor in coloured glass, and the poor felt shamed: they instituted therefore that all should serve drinks in coloured glass, out of deference to the poor. Formerly they were wont to uncover the face of the rich and cover the face of the poor, because their faces turned livid in years of drought and the poor felt shamed; they therefore instituted that everybody's face should be covered, out of deference for the poor. Formerly. they were wont to bring out the rich [for burial] on a dargesh aid the poor on a plain bier, and the poor felt shamed: they instituted therefore that all should be brought out on a plain bier, out of deference for the poor. Formerly they were wont to set a perfuming-pan under [the bed of] those that died of intestinal disorders, and the living suffering from intestinal disorders felt shamed: they instituted therefore that it should be set under all [alike], out of deference to the living that suffer from intestinal disorders. Formerly they were wont to subject to [ritual] ablution all utensils that had been used by [dying] menstruants, and the living menstruant women felt thereby shamed: they instituted therefore that they should subject utensils used by all [dying] women alike, out of deference to the living menstruants. Formerly they were wont to subject to [ritual] ablution all utensils used by those suffering from a flux. while dying, and the living suffering from a flux felt shamed: they therefore instituted that they should subject to ablution utensils used by all, out of deference to the living suffering from flux. Formerly the [expense of] taking the dead out [to his burial] fell harder on his near-of-kin than his death so that the dead man's near-of-kin abandoned him and fled, until at last Rabban Gamaliel came [forward] and, disregarding his own dignity, came out [to his burial] in flaxen vestments and thereafter the people followed his lead to come out [to burial] in flaxen vestments. Said R. Papa. And nowadays all the world follow the practice of [coming out] even in a paltry [shroud] that costs but a zuz."
We must also remember the comment made by Ze'ev Safrai:
"The public at large did not obey the rabbis. Among the Jews, only a minority followed the rabbis, obeyed their decisions and was influenced by their sermons and moral teachings. It was also this small group that influenced the outlook of the beit midrash; its customs and attitudes constitute the social and historical background for the decisions made in the belt midrash. According to this perspective, then, the texts do not provide a true image of the community, but that of a small group, a social stratum whose ties with the wider public were few and problematic." [HI:ERP:5-6; note: he recognizes the basic validity of this (represented as others' opinions), but points out that it does not apply to ALL areas of social life.]
Part of Richard's problem, I
think, is a misunderstanding of the nature of
the rabbinic material. He has numerous statements about how it was
'law', conservatively preserving ancient law (even when the law was no longer
in effect, due to changes in historical circumstance), and these rabbinic
descriptions are 'innocent until proven guilty' (his amazingly anachronistic
"Consequently, unless specific reasons can be adduced for thinking
otherwise, the contents of these texts (he includes the Talmud in this!)
applied to the time of Jesus"!).
To demonstrate this, let me
give data/conculsions from specialists in
this field, about the character of the mishnaic and post-mishnaic
materials. These scholars would represent a wide cross-section of views, from
the conservatism of Zlotnick, to the moderate positions of Sanders and Lapin,
to the studied minimalist view of Neusner. What we will see from this is that
the rabbinic literature:
1.
Is
not a legal code at all, but a history of legal and semi-legal debate
2.
Described
the fictional, idealized world, desired/planned/invented by the rabbi's
3.
Was
typically not descriptive of a real world, neither past nor present
4.
Was
not a 'conservative' description of ancient actual laws/traditions (but
sometimes preserved legal debates)
5.
When
it did describe a real world, it sometimes applied to ONLY an ancient one--and
not the world of Jesus.
6.
When
it did describe a real world, it sometimes/often applied ONLY to
post-2nd-Revolt Galilee (where the rabbi's resettled)
7.
Many
elements it 'proscribed' are known to have been not in practice
A. First the conclusions of Hayim
Lapin, who studied
the "most-likely-to-reflect-reality" economic tractate of Baba
Mesia:
1. "It also appears likely that throughout late antiquity Rabbinic authority continued to be unofficial and limited to adherents whose number and social distribution we are in no position to estimate. Rabbinic texts polemicize against other, non-Rabbinic judges ("those who are appointed for money") who have been plausibly identified with the official civic judges of the Galilean cities. Rabbinic narratives about cases judged by Rabbis may similarly be taken regularly as cases of arbitration by a holy (or otherwise significant) man…On balance, then, there is very little positive evidence that Rabbis served as the governing body of Roman Palestine, or even the class which provided the staff for that government. Such evidence as we do have actually suggests the opposite: that Rabbis at the time of the redaction of the Mishnah (and later) may have been a prominent wealthy group with claims to special authority, but they had little institutional authority and no official standing. In this respect, they may have been like other (frequently religious) figures in the ancient Greco-Roman world who served as judges, miracle workers and arbiters of public opinion. Nor does it seem likely that Rabbinic law as such (for our purposes we may focus on the Mishnah) served as the legal code of the Jewish population of Roman Palestine." [X03:ERCL:18f; Note: not a legal code, not in effect]
2. "This means that part of the historical investigation of m. Baba Mesia involves exploring the elusive boundaries between the real world in which Rabbis lived and the constructed one of the Mishnah." [X03:ERCL:20; Note: a fictional world]
3. "Instead, attributed statements present what contemporaneous or later tridents thought a particular sage might have ruled in a given case." [X03:ERCL:26; Note: not an 'enormously conservative' process of tradition!]
4. "In framing the study in this way, as I have already pointed out, I am not denying the fictional character of the Mishnah in general or Baba Mesia in particular. The goal of the present study is rather to explore the horizons of this fictional world." [X03:ERCL:29; Note: a fictional world]
5. "…help identify where the Mishnah reflects, distorts, or simply ignores the realities of the world in which the Rabbis who produced it lived." [X03:ERCL:30; Note: a fictional world]
6. "The Mishnah is neither an authoritative archive of laws, practices and events, nor even a mine of 'facts' to be uncovered and, if necessary, cleansed, purified or cut to shape." [X03:ERCL:35; Note: not a body of law!]
7. "My goal, therefore, has been to understand how Rabbis imagined the proper working of Jewish economic practices in such an economy." [X03:ERCL:120; Note: a fictional world]
8. "Nevertheless, Rabbis do not appear to have had institutional authority in Galilee beyond their own adherents in the second or third centuries. Moreover, the legal program that the Mishnah outlines is ultimately an ideal one, in which the Temple still stands and in which high priest and king still function." [X03:ERCL:237; Note: not a real, applicable law code]
9. "Thus, although the Mishnah may not 'document' the social and economic life of Jews in Roman Palestine, it does indeed offer us an opportunity to examine how an articulate group of Jews within Palestinian society chose to depict that social and economic life...Instead, the tractate is better seen as the product of the Rabbinic community for its own specialist audience." [X03:ERCL:238; Note: not a real, applicable law code]
10. "In presenting this study I have attempted to use the text and concerns of m. Baba Mesia as the framework for my analysis. To conclude, I wish briefly to locate the development of m. Baba Mesia within a somewhat wider perspective. In the one hundred and fifty years between 50 and 200 CE, Palestinian Judaism had seen major political, social, and religious changes, not least of which were the suppression of two revolts, the destruction of the Jerusalem Temple, the garrisoning of the province with two legions, and increased urbanization. It is in the wake of a period of "pacification" and integration into the Roman empire that the Mishnah emerged, with its imagined world in which the Temple still stood. Mishnaic civil law is not best seen as a codification in the late second century of laws that by that time were of great antiquity. Indeed, both from the literature of the second Temple period and from what Rabbinic texts themselves attribute to their earliest tradents, questions of contract and property appear to have been at best questions of secondary importance or, in the case of the Qumran sect, of sectarian governance. At precisely the time during which the economic practices of Palestinian Jews would have come increasingly under the direction of Roman provincial authorities, m. Baba Mesia attempted to invent a "Jewish" civil law in which officials of any government (except for the angareia) are essentially absent." [X03:ERCL:240; Note: NOT a codification of conservatively transmitted ancient laws, but an invented one!]
B. Next, the conservative and
traditional Zlotnick, who, although he believes much of the material is ancient (and
applied in earlier times), still recognizes that some of the legal material is
theoretical and actually disagrees with the legal praxis of actual courts:
1. "What clearly emerges from the many rules, cases and decisions is that we are dealing with two kinds of law: halakah or halakah stam (theoretical law) on the one hand and halakah le-ma'aseh (law in effect) on the other hand. Halakah stam is studied in the schools by scholars and their student. Here rules are formulated and applied in the process of the dialectic. Halakah le-ma'aseh however, is the domain of the court. Here jurists sit and decide the practial [sic] case. [X03:IPM:215]
2. "Nevertheless, the directives of jurists are not identical to those of scholars. As we have learned from Rabbi Johanah, a conclusion resulting from a theoretical discussion need not agree with a decision in a real cast. At court the attested tradition was supreme." [X03:IPM:217]
3. Rabbi's Mishnah, as such, was the primary source for halakah le-ma'dseh. This is not to say that the law was decided from it, in every detail even for his own generation, let alone the generations that followed. Nor is it to say that Rabbi had this as his objective. The Mishnah was never a code in the narrow sense. We have noted, for example, how Samuel identified a section le-halakah and not le-ma'dseh, as an academic text for the schoolhouse and not as statutory law for the court. To be sure, in most of the Mishnah we find elements of codification - normative and casuistic law presented with surpassing brevity and lucidity. But as we have tried to show, the Mishnah is also made up of other constituent parts: narrative passages, aphorisms, rules of conduct, customs, and judicial legislation in the form of gezerah and takkanah. Even in the strictly legal aspects of the work, Rabbi's Mishnah consistently breaks with what one would expect in a strict code. It contains laws that were simply voted down and rejected, and still others that lost their practical force as a result of the destruction of the Temple. More than one-third of the Mishnah, all the tractates dealing with sacrifices and most of the tractates dealing with ritual purity - that is, the lion's share of the Orders Kodosim and Tohorot - would come under the category of hilketa le-meshiha, "law for the time of the Messiah"…There are still other laws, discussed at length in the Mishnah, with even less immediate application: rules treating of situations that are only theoretically possible. They come under the catetgory [sic] of deros we-kabbel sakar, ”expound it and receive a reward!" Much of the Mishnah consists of minority views that could some day serve as a basis for new decisions and, of course, there are those many instances where the law was left undecided." [X03:IPM:225f]
4. "In more than one instance, laws are recorded in the Mishnah that could have applied only to a limited period in remote antiquity…" [X03:IPM:35]
5. He gives examples of Orlah 1:2 (fruit trees in the time of Joshua). "Nearly all of the tractates in the Orders Kodosim and Tohorot deal with sacrifices and ritual defilement. Most of these tractates lost their sense of immediacy with the destruction of the Temple….Yet we see they were not removed. On the contrary, they represent more than a third of the substantive law in Rabbi's Mishnah." [X03:IPM:36]