Rechtsgeschichte
Wissenschaftliche Veröffentlichungen
ISRAEL LAW REVIEW
Volume 33, Number 4 * Autumn 1999
Hebrew University of Jerusalem
SADDUCEES AND PHARISEES - TWO CONTROVERSIES *
Reuven Yaron**
The Sadducees (also known as Boethusians) and Pharisees were politico-religious
groupings of the late Hasmonean state, in its prolonged decline, during the
course of the last century BCE and the first century CE. Josephus tells us that
"the Sadducees have the confidence of the wealthy alone, but no following among
the populace, while the Pharisees have the support of the masses."1
In modern terminology, the Sadducees were an upper‑class, elitist minority,
financially better off, more in contact with the outside world, also better
acquainted with foreign (that is, primarily Hellenistic, and later also Roman)
culture and practices. Specially significant was the Sadducean hold on the upper
strata of the priesthood. While both groupings were firmly within the Jewish
orbit, the texts testify to the depth of their antagonism. Their relationship
was one of distrust, bitterness and resentment. The sources are overwhelmingly
Pharisean, but it would be reasonable to assume that the sentiments expressed
were mutual. Regrettably, the surviving details of controversies, coneerning
some points of law (but also differenees in religious rites) are limited; most
have disappeared.
Eventually
it was the course of history - the gradual collapse of the Jewish state, and
especially the destruction of the Temple (70 CE) with the concomitant abolition
of the High-Priesthood - which caused the disappearance of the Sadducees. Before
entering in medias res, I would like
to adduce one partieular example, apart from my main theme, just to get
acquainted. It is based on the Tannaitic texts, the Mishnah and the Tosefta, and
coneerns one detail coneerning the Yom-Kippur service in the Temple.
M. Yoma 1:5: "The elders of the court
handed him [the High-Priestl over to the elders of the priesthood .... They
adjured him, took their leave, as they said to him,'Sir High Priest, we are
messengers of the court, and you are our messenger and the messenger of the
court. We adjure you by Him that made His name to dwell in this house that you
do not change anything of what we said to you'. He turned aside and wept and
they turned aside and wept".
The reasons for the weeping of the
High‑Priest and the elders of the priesthood (an inherent part of the
ceremony) are taken up in the Tosefta:2
T. Yom Hakkippurim 1:8: "Why does he turn
aside and weep? Because it was necessary to adjure him. Why do they turn aside
and weep? - Beeause they had to adjure him.
And why did they have to adjure him? - Because
there was once the case of a certain Boethusian, who lit the incense while still
outside, and a cloud of ineense came forth and shook all the Temple, since the
Boethusians said he should light the incense while still outside, as it is said
AND THE CLOUD HID (Lev. 16:13). And the Sages said to them,'it has already been
said HE SHALL PUT THE INCENSE ON THE FIRE BEFORE THE LORD, (ibid.)
that is anyone who lights the incense, does so only inside.' - lf so, why
has it been said AND THE CLOUD OF INCENSE HID (ibid.
)3*? It teaches that he gives into it a herb which causes the
smoke to go up straight 4 but if he has not put into it a herb that
causes the smoke to go up straight, he is liable to die.
When he came out, he said to his father,'All your days you have been
interpreting, but you have not been doing (it), until 1 stood up and did'. He
said to him: Tven though we interpret (we are not aeting upon our view but) we
are obeying the words of the Sages. I wonder concerning thee whether thy days
will be long.
He
did not while three days, until they put him into his grave".
We
turn now to the substance of this paper. Anyone wishing to get acquainted with
the details of the confliets between Saddueees and Pharisees may be well advised
to start off with Professor L. Finkelstein's opus The Pharisees.5 The controversies between the two
groups claim in it pride of place, and unavoidably so. In a synopsis (p. 639f.)
Finkelstein lists 23 "ritual and juristic" items in dispute.6
The last 9 items coneern juristie issues. The results tend to point in the same
direction: advocacy of a particular view by the Saddueees was not likely to
enhance its chances. I have seleeted for detailed discussion two speeifie,
separate topies, not connected with each other. The first [Finkelstein 7]
coneerns a question regarding inheritance, the second [9] deals with the
consequences of pecuniary damage eaused by a slave.7
A Case of Succession: Daughter and Granddaughter
Compete
The
basics of the law of succession, for both Bible and Talmud, are laid down in
Numbers 27;8 they are presented as derived from an actual ease, the
ease of "the daughters of Zelophehad", a man who had five daughters.
After he dies, his daughters apply to Moses and other leaders (verse 2) and
claim the inheritance: "Our father died in the wilderness .... and he has
left no sons. Let not our father's name be lost to his clan, just because he had
no son! Give us a holding among our father's kinsmen" (verses 3‑4).
Moses brings their cause before the Lord (verse 5).
At
this stage of the story we are allowed an insight into the custom that was used
to determine succession in proto‑biblical society. The main conclusion
would have to be, that at an early stage females were altogether excluded: in
the absence of sons (or other male offspring, tracing their relationship with
the deceased through males only), the property would devolve on collateral male
members of the deceased's9 family.10
Within
such a "males only" framework, the acceptance of the claim of the
daughters (verses 6 and 7) heralded a significant change. There followed a
comprehensive sequence of heirs (verses 8 to 11): Son daughter - brothers -
father's brothers - next of kin (sheero
haqqarov). Of all these potential claimants, it is only the daughter whose
inclusion constitutes an innovation.11
While
we stress the significance of the change outlined, it may as well be pointed
out, that the inclusion of the daughter in the list of potential heirs was not
meant to affect in any way the claim of her brother. Between brother and sister,
male preference remained. The actual losers in the new situation created by the
Zelophehad rule are the collaterals alone.
And
indeed, a counter-claim was raised by the heads of clans of the Menashe tribe,
of which the deceased had been a member, pointing out that the newly created
heiresses could, as a result of exogamy effect the transfer of property to other
tribes. Here too divine endorsement of the claim was obtained. To realize their
rights, the daughters of Zelophehad would have to enter upon endogamic unions,
marry within the clan. They complied. [Numbers 36].
One
detail which is directly relevant to the topic of this paper, was not mentioned
in Numbers 27. This is the competition between two women, one of them the
daughter of the deceased, and the other his granddaughter, from a (predeceased)
son of his. The following is a diagrammatical representation of their
relationship:
deceased
daughter
son (predeceased)
granddaughter
A
sectarian dispute arose concerning this issue. The basic text dealing with it is
T. Yadayim 2: 20:
The
Boethusians say: 'We complain against you Pharisees, (arguing as follows): 'If
the daughter of my son, whose claim is based on the strength of my son, whose
claim is based on me, is inheriting from me, isn't it proper, that my daughter,
whose claim is based (directly) on me, inherit from me?'
The
Pharisees say, 'No, if you say concerning the daughter of the son (that is
because) they [sie!] share with the brothers; would you say this concerning the
daughter, who does not share with the brothers?'.
The
Mishnah does not deal with this particular detail in a direct fashion, but lays
down the law indirectly, yet clearly, in Baba Bathra 8:2. There the sequence of
heirs is set forth, with some elaboration:
The
sequence of inheritances is the following: 'lf a man die and have no son, you
shall transfer his inheritance to his daughter' (Num. 27:8ff.) ‑ the son
precedes the daughter; and all the offspring of the son precede the daughter.
The daughter precedes the brothers, the offspring of the daughter precede the
brothers. The brothers precede the father's brothers, the offspring of the
brothers precede the father's brothers.
This
is the rule: Whoever precedes in the inheritance, his offspring precede. And the
father precedes all his offspring.12
In the context of our discussion, the
decisive passage is the first one "the son precedes the daughter, and all
the offspring of the son precede the daughter". The actual oral exchange
recorded in the Tosefta is early Tannaitic, and may have preceded the written
version of the Mishnah by about a century and a half. For purposes of dating, we
would wish to rely on BT Baba Bathra 115b, where the story of the competition
between the two women is set out in greater detail:
Rav
Huna said in the name of Rav: Anyone, even a prince in Israel, who says that a
daughter is to inherit with the daughter of the son, must not be obeyed, for
this is only the practice of the Sadducees. As it was taught: On the twenty‑fourth
of Tevet we returned to our law (tavna
ledinena); for the Sadducees having maintained [thatl a daughter inherited
with the daughter of the son, Rabban Johanan b. Zakkai joined issue with them.
He said to them: Tools, whence do you derive this?' And there was no one who
could reply a word, except one old man who prated at him and said: 'lf the
daughter of his son who succeeds by virtue of his son's right, is heir to him,
how much more so his daughter who derives her right from himself!'
He
[Ben Zakkai] read for him this verse: 'THESE WERE THE SONS OF SEIR THE HORITE, WHO WERE SETTLED IN THE LAND:
LOTAN, SHOVAL, ZIVEON AND ANAH [Gen. 36: 201, and it is written, THE SONS OF
ZIVEON WERE THESE: AIAH AND ANAH Ubid. verse 241'
He (the old man mentioned above) said unto him
[Ben Zakkai]: 'O master, do you dismiss me with such [a feeble reply]?’13
He said to him: Fool, our perfect Torah shall not be as your idle talk: the
reason why a son's daughter [has a right to inherit is] because her claim is
valid where there are brothers, but can the same be said of the daughter whose
right is impaired where there are brothers?' Thus they were defeated. And that
day was declared a festive day.
No
one should wish to vouch for the authenticity of all the embellishments in this
detailed account. Not even that of the term schote
("fool"), which is repeatedly used by Ben Zakkai, as an apparently
"normal" way of addressing his Sadducean opponent. But the atmosphere
is here, reflecting typical and deep‑rooted attitudes. And, as time went
on, the views became ever more fixed.
In
any ease, the views expressed here by the Pharisees have remained in force
throughout the ages. Their final shape, concise though not entirely devoid of
some elaboration, is offered by
Maimonides,
Inheritances 1: 4: "He who died
and left a daughter and the daughter of a son, and even the daughter of
a daughter of
a daughter of the
son up to the end of [some] <all>14
generations she precedes and inherits all, and the daughter
has nothing. And that is the law for the
daughter of
the brother with the sister, and the daughter of the
son of
the father's brother with the daughter of the
father's brother, and all the like".15
Obiter, it might be mentioned
that the version given by Maimonides [in the 12th century] is repeated verbatim
in Tur Choschen Mischpat 276. 2 [14th
centuryl and in Shulchan Arukh, ibid. [16th
century].16 Nothing could be more authoritative for latter-day Jewry
than the uniform opinion of this triad of codifiers.
For
the reader who wishes only to understand what the Jewish law on this point is,
the answer has just been given. But if one asks for the reason for this decision,
which has now been in force for almost two millennia, it is not easy to come up
with a satisfactory reply.
To
begin, let us quote Finkelstein (p. 140): "Logically, it would seem that
even from the point of view of the ancients, who had such deep respect for
masculinity, little could be said for granting D17 the whole of her
grandfather's property and disinheriting C.18 Certainly a man's child
should not be set aside in favor of his grandchild, when they both were of the
same sex. And, indeed, the Sadducees did maintain that in such a ease the
daughter and granddaughter divided the property equally. The Pharisees, however,
insisted that the granddaughter inherited all her father's rights and was the
sole heir ..."
I
agree with most of the above, but with none that follows. Just after having
convinced the reader as to the merits of the case (as he sees it: "certainly
a man's child etc."), he turns to the unenviable task of explaining what he
has just rejected. And in his endeavor, to explain everything would mean to
justify everything. He seems to explain the actual Pharisaic decision that gives
all the inheritance to the granddaughter, as reflecting their basic opposition
to the splitting of small estates. I would not give this argument much weight,
for the simple reason that it is of marginal import, within the wider picture:
the excessive division of small parcels of land is a negative consequence of
egalitarian rules of succession, but these were already laid down in the Bible (even
though they were mitigated by the biblical rules as to the firstborn's double
share, as already mentioned). The solution enacted for the specific case of
granddaughter versus daughter could have only negligible impact regarding this
major problem, but would ‑ whenever it occurred ‑automatically
entail hardship. The best method for the maintenance of undivided estates would
have been the development of testacy, but it was precisely that which was
frowned upon, and allowed only in the disguise of "gifts".19
So
I do not see any explanation for the Pharisaic ruling better than that adduced
above (from T. Yadayim 2:20 and BT Baba Bathra 115b): the preference given to
the granddaughter is based on the faet that she would have been entitled to
share with other sons of the deceased (had there been any), whereas the
deceased's daughter would in such a case have been shut out.
A
lawyer would undersland Ihis explanalion and would, perhaps, be tempted to
accept it. It is the best that can be found. Best, but not good enough. It is a
produet of the brain, but it lacks some additive coming from the heart. And let
no one say that it was fidelity to the word of Scripture which dictated the
outcome of the controversy.
Let
us have a closer look at the Saddueean proposal. It does not in any way touch
upon the male preference which had been handed down from the Bible as a kind of
sacrosanct rule. As for the substance of their suggestion, it ean be described
as being mature, moderate and equitable. They even withstood the temptation of
symmetry, which might have led them to proposing that the daughter take all. To
no avail. Perhaps here we have at least a part-explanation to the riddle of the
Pharisaie blanket‑rejeetion, namely the feeling that one must not let
"them" win an argument. And so it all ends in tavna ledinena.
Liability for Damage Caused by Slaves
The
question of liability for damage eaused by slaves is brought up by the Saddueees
in Mishnah Yadayim 4:7:
...
The Saddueees say: 'We complain against you, Pharisees (as follows): If I am
liable for the damage (caused by) my ox and my donkey, for whom I am not obliged
coneerning the observance of a religious duty [a miswahl, will it not be the law (even more) that I be liable for the
damage (caused by) my slave and my slave woman, for whom I am obliged concerning
the observance of a miswah?'
They
replied to them:'No, when you say this of my ox and my donkey, who have no
understanding, will you say so of a slave and slave woman who have understanding?
lf I irritate him (her), he (she) may go and set fire to the hay belonging to
another, and I shall be obliged to compensate'.
Here it seems best to consider
separately two aspects, the substance of the (proposed) deeision, and the
reasoning advanced in its support. The substantive disagreement is
straightforward: the Sadducees hold the owner of the slave liable, the Pharisees
absolve him. We shall deal shortly with both the solutions. Rather more complex
are the attempted justifications: these are indeed very different, but if I am
not very much mistaken, they are both wide off any mark, irrelevant and leading
nowhere.
Their
respective roles seem to be inverted. The Saddueees get entangled in the kind of
convoluted reasoning which one would rather expeet from their opponents - only
they do it ineptly and clumsily: They adduee data which are not in
pari materia: (a) liability for damage eaused by a goring ox (e.g., Exodus
21: 32, 35) and (b) the master's duty to provide for the observance, in respect
of a slave, of certain religious rites.20
The
two eases adduced do indeed share the expression hayyav b... but this term is employed in a very wide range of
situations ~ust as its English equivalent "to be obliged to ... ").
Hence, it eannot per se supply exaet
and suffieient information as to the eauses which led to the imposition of the
duty involved. Coneretely, an obligation may be "benefieial", derived
from contraet or status, but in another ease it may be “epenal",
originating in wrongs and their atonement. An attempt to reach conclusions
derived from juxtaposing the two spheres may be unfounded, hence likely to fail.
For the moment we have finished our deliberations regarding the argumentation
imputed to the Saddueees.
The
Pharisees, in this ease not purporting to rely on any biblical prescript, hence
free from the fetters and preconceptions often imposed on Talmudie discussion,
point to supposedly pragmatie grounds for rejecting liability of a master for
the damage eaused by his slave. These might be worth considering, if only their
arguments were convineing. They are not. The possibility that a slave might
cause damage out of malice directed against
his master is there, but it is far‑fetehed and unlikely. In particular,
this argument of theirs leads them to discount - in their silence - any
consideration pointing in an opposite direction, such as the immediate concerns
and reasonable expectations of the party who has suffered loss through no fault
of his, and who wishes to claim recompense from the owner of the slave.
Why
indeed did the Pharisees decide the way they did? To this simple question, I
have not found an answer. It remains then to adduce some later sources, all of
which repeat or refleet - one way or another - the Pharisaic deeision. Some deal
with additional details, but without departing from the basis of M. Yadayim, as
quoted:
M. Baba Kamma 8:4: "One deaf, an imbeeile
and a minor – clashing with them is bad: he who hurts them is liable, and they
who hurt others are exempt. The slave and the wife - elashing with them is bad:
he who hurts them is liable, and they who hurt others are exempt. But they pay
later: (If) the wife was divorced, the slave was freed ‑ they are obliged
to pay".21
This
is a list of tortfeasors who are permanently, or for the time being, exempted
from liability for the wrongs which they have committed. We confine our remarks
to the slave only. 1 am less than happy with the statement that "clashing
with them [the slave and the married woman1 is bad: he who hurts them is liable,
and they who hurt others are exempt". lt is a kind of abdieation on the
part of the law, a declaration of ineapacity to offer a remedy.22
Concerning
the slave (and the married woman) we find a new provision (not mentioned in the
early Mishnah), qualifying the exemption: in the early Mishnah there is no
mention of a restrietion of the exemption, namely its termination in case the
slave was freed. Note that this change is of limited import: it depends on an
event which may never happen (incertus
an).
T. Baba Kamma 6-20: "A shepherd who handed
over his animals to another shepherd, the first is liable and the second is
exempt ... If he handed over his animals to one deaf, an imbeeile or a minor, he
is obliged; he (handed them over) to a slave 23 and to a wife, he is
exempt, but they pay later. How does one deal with them? The Court writes deeds
of debt coneerning them. If the wife was divorced, or the slave was freed, they
are obliged to pay".24
The
version of the Tosefta contributes useful information coneerning the mode of
proceeding against a temporarily exempted tortfeasor, a slave (or a wife). It is
a good thing to obtain an early judgement, fixing the amount which will
eventually be payable. At the same time this speeifie provision highlights the
absence of any really meaningful contribution to the problem of the
slave-tortfeasor.
Incidentally,
a parallel to an action against the slave‑tortfeasor who has been freed by
his master, exists in Roman law; but the whole situation is different ‑
the original action is brought against the owner, who is liable to the füll
extent of the damage. However, he can evade the plaint by the surrender of the
slave to the plaintiff. noxae datio [or
deditio]. The release of the slave is
another way of avoiding the aetion against the owner: the way is then clear for
an immediate aetion against the culprit himself, on the principle that noxa
caput sequitur.25 Within the Mishnah and the Tosefta, this looks like a rather
inadequate reception of the Roman proceedings.
A
last Talmudic reference to our case is to be found in a dictum by Rav Ashi, the
editor of the Babylonian Talmud (early 5th century):
Baba Kamma 4a: "...
He
[the slavel could, if his master irritated him, go and set fire to the hay of
his fellow, and in this manner oblige his master to a payment of 100 Minas per
day".
This
is the final formulation of the risks which the owner of the malicious and
revengeful slave would run: he might have to pay an enormous sum of money;
moreover the possibility of daily recurrent rampages by the slave is envisaged.
Incidentally, great sums of money are mentioned also by Maimonides, Theft 1:9:
The slave who has stolen is exempt from paying double, and his master is
exempt (too) because a man is not obliged for torts of his slaves, even though
they are his property, beeause ihey have understanding, and he cannot guard
them, and if his master will irritate him, he will go and set fire to hay
(worth) a thousand denars, and likewise from other torts. If the slave was
freed, he is obliged to pay double.
For the first time, mention is made of
chastisement as a means of deterrence, in Maimonides, Theft 1:10:
It
is proper for the court to flog minors for the theft, correlative to the
strength of the minor, in order that they should not become used to it
(thievery), and also if they committed other torts. And so also, one flogs
intensively (makkah rabbah) slaves who
have stolen or committed other torts, so that they do not become used to
committing torts.
This
ends our survey of the relevant material. Just as in the preceding case, only
more so, 1 find it rather diffleult to arrive at a plausible explanation. Let us
commence again with one quotation from Finkelstein (p. 284): "The argument
shows plainly that the Pharisees based their rule on the recognition of the
moral responsibility of sentient beings. The slave has a mind of bis own; to
make the master answerable for him is a derogation of the prineiple of human
responsibility. Their respect for the dignity of man ... made it impossible for
them to countenance a law which rnade one man answerable for another's deeds.
..." To this one ean only say: n~ vero, n~ ben trovato. One has to stress that there is no hint of
such an idea of human dignity as eausing freedom from responsibility in any of
the texts quoted; the sentient charaeteristic of the slave has nothing to do
with any "human dignity" of his; the only reason that
"sentience" is stressed so prominently is the apprehension of
malicious action by a slave, bent on harming his master.
This
is but one example of several; but I would be transgressing on the hospitality
of the Israel Law Review, were 1 to
continue quoting (and refuting) fürther arguments.
In
slave‑owning societies, there is an urgent need for making the owner
responsible for the transgressions of his slaves (and it was the owner s
immediate concern to control their behaviour). Responsibility of the owner is
justified primarily by the fact that he derives benefits from owning slaves, and
"he who benefits, bears the burden" (cuius commodum eius incommodum). Secondly, one has to take into account
the claims and needs of those who were vietims of slaves, one way or another.
Otherwise an intolerable situation would arise, not only for the majority, who
did not own slaves, but in the last resort to society at large, including
slave‑owners, who had suffered loss at the hand of slaves belonging to
someone else. In other words, the Sadducean stand or comparable views holding
the owner liable was an inevitable necessity. The only practical consideration
which would make it possible to tolerate the situation brought about by
Pharisaie halakha was the existence of foreign courts (primarily courts of the foreign
sovereign) which one could approach in search of redress. But this is just what
Jewish Law strongly deplored and would wish to prevent.
So
what it was that led Jewish law into such a cul‑de‑sac,
I really do not know. Was it perhaps, once more, an early Pharisaic urge to
rebuff their opponents? This I should hesitate to assert: simply, the price paid
by society would be too heavy.26
*Abbreviations: M. = Mishnah; T. = Tosefta; BT =
Babylonian Talmud; PT = Palestinian Talrnud; Maimonides = Maimonides, Mishneh
Torah ["Restaternent of the Lawl. Translations from the Bible follow
essentially the edition of the Jewish Publication Soeiety, 5746‑1985.
Translations from M. and BT follow essentially the "Soneino" edition
of the Babylonian Talmud.
**Professor Emeritus, Faculty of Law, The Hebrew University of Jerusalem.
1
Jewish Antiquities xiii 297: Loeb Classical Library vol. 7, p. 377.
Transl. by Ralph Mareus.
2 Also
in later formulations in BT and PT, not adduced here.
3
The complete verse Lev. 16:3 reads as follows: "AND [A] HE
SHALL PUT THE INCENSE ON THE FIRE BEFORE THE LORD [BI AND
THE CLOUD OF INCENSE HID THE COVER THAT IS [OVER THE ARKI OF THE COVENANT;
AND HE SHALL NOT DIE". The Boethusians (=Saddueees) started by quoting
passage (B); the Sages (=Pharisees) retorted by quoting passage [A]. The text
continues by asking, to what purpose has B been added ? etc.
4 So
Rashi ad ma'aleh 'ashan, BT Yoma 53a.
5 2
Volumes (3rd ed., 1962).
6 More
exaetly, but in a division alien to the texts themselves, they contain 12 ritual
disputes, plus 2 theologieal ones.
7 The
seven legal topies not discussed here are: [8] one detail in the law relating to
'Talse
witnesses" ('edim zomemim);
[10] Ransom in Lieu of Capital Punishment; [12] Judieial Lenieney in
Punishment; [17] The Priestly Interpretation of the Lex
Talionis; [18] The Priestly Tradition Regarding Death by Burning; [20] Proof
of Virginity by a Bride under
Suspicion; and [21] The Ceremony of Halizah,
8
With the exception of primogeniture (for which see Deuteronomy
21:15‑17). Within the scope of this paper, a discussion of prirnogeniture
is not required.
9
Hebrew uses interchangeably two terms, manhil
or mori4 to designate the person whose property is up for assignation
to one or more heirs.
10
While females were thus denied an inheritance, they might still expect to
be Compensated on the occasion of their marriage, by means of a
"dowry". But this is a different matter, not to be examined here. In
Talmudic times the dowry is quantified, set at one tenth of the property of the
father, or of his estate. Provisions for maintenance of daughters and widow out
of the estate of the deceased might also be mentioned, again without going into
details.
11
Technically, the change may have been achieved by interpolating the words
<weha'auartem eth nahalatho levito weim
en lo bath> [= "you shall transfer his property to his daughter, and
if he has no daughter"] into the sequence which may have been earlier. But
1 would not be too insistent on this point: it is not critical for this paper.
12
The sequence given in the Mishnah might have been better: son (and
offspring), daughter (and offspring), father, brothers of the deceased and
father's brothers.
13
The complaint by the anonymous disputant may be well taken. The quotation
adduced by Ben Zakkai is irrelevant and adds nothing to the discussion: those
mentioned are male, hence without bearing on the issue in dispute, concerning
the competition between daughter and granddaughter. And anyhow
"evidence" adduced from an Edomite genealogy would be less than
compelling. It seems then that distracting and confusing the opponent would be
the purpose. See Encyclopaedia Judaica 10 (1971), col. 151 for other examples of Ben
Zakkai's occasionally evasive taeties of discourse.
14
The word some is a mistake,
resulting from the wrong resolution of the abbreviation SOKHD; read correctly sof
kol haddoroth -
"end of all generations". This a common Talmudic phrase; see M.
Makkoth 3:15, and Ch. J. Kasowski, Thesaurus
Talmudis xxvii (1971) 116 (13 loci).
15
Here, the italics indicate addition in the text of Maimonides; a change
in substance is not entailed.
16
Incidentally, in this instance, "verbatim" implies also that
the two later texts faithfully copied the mistake, which has just been pointed
out, in n. 14.
17
The granddaughter. 18 The daughter.
19 See
my Gifts in Contemplation of Death (Oxford, 1960) 33-34, and passinz.
20
The master has to see to it that his non-Jewish slave undergo
eireumeision (Genesi 17:12-13, 27); as a consequence of being eireumeised, the
slave is allowed to partiei pate in the Passover ceremonial meal (Exodus 12:
44).
21 In the same
vein, also Maimonides, Wrongdoer and Tortfeasor 4:21.
22
One is reminded of the pseudo-philosophical statement in some Enghsh
cases, 'The loss lies where it falls":
their lordships might occasionally have done better than that.
23
So also in Mekhilta Neziqin, ad Exodus 22: 4.
24 Supra n. 21.
25
See for both these terms, A. Berger, Eneylopedic Dictionary of Roman Law
(1953) col. 600 (Transactions of the American Philosophical Society 43/Part 2).
26 This paper benefitted by comments of Professor A.V. Levontin and Dr. M. Aberbach.