Judges are people of violence.… Theirs is the jurispathic office. Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy the rest. But judges are also people of peace. Among warring sects, each of which wraps itself in the mantle of a law of its own, they assert a regulative function that permits a life of law rather than violence.
We ought to stop circumscribing the nomos; we ought to invite new worlds.
—Robert Cover, “Nomos and Narrative”Footnote 1
“These and those are the words of the living God, but the Law always follows Beit Hillel” is among the most cited and discussed lines in rabbinic literature.Footnote 2 Many contemporary scholars have embraced this text as a “poster child” for rabbinic pluralism, focusing primarily on its affirmation that conflicting views can both reflect the divine word.Footnote 3 These scholars tend to neglect the fact that the second part of the text adopts a monistic stance, declaring that the Law always follows the rulings of Beit Hillel.Footnote 4 In contrast, some historians have focused on the latter part of the text, without engaging the pluralistic declaration that precedes it, concerning themselves only with how and when Beit Hillel ultimately triumphed over Beit Shammai.Footnote 5 Scholars rarely engage the tension between the pluralistic nature of the first statement and the monistic nature of the second.Footnote 6 But it is precisely this statement's effort to negotiate the monistic and pluralistic tendencies within the rabbinic tradition that makes “These and those …” such an innovative and important source regarding rabbinic understandings of their own juristic endeavors.
Scholars also tend to ignore the multiple literary and historical contexts in which “These and those …” appears in the rabbinic sources. They frequently only cite its appearance in B. Eruvin 13b, giving the impression that the pluralistic ideas it suggests emerged only in Babylonia, later in the rabbinic period. Daniel Boyarin and Azzan Yadin-Israel make this claim explicitly, identifying “These and those …” with “the latest layers of rabbinic literature”Footnote 7 found in “the anonymous stratum of the Bavli.”Footnote 8 This claim is central to their argument that legal pluralism is a late, Babylonian development in rabbinic thought. Steven Fraade rejects this position, arguing that rabbinic legal pluralism has its roots in tannaitic sources.Footnote 9 Nevertheless, he, too, generally associates “These and those …” with the Bavli.Footnote 10 In fact, “These and those …” is of Palestinian origin and was composed in the early amoraic period at the very latest. The early Palestinian provenance of this tradition is quite significant to the reconstruction of the history of pluralistic tendencies in rabbinic Judaism.
This article will present a close reading of “These and those …,” arguing that this text is not a simple declaration of halakhic pluralism, but an effort to reconcile pluralistic and monistic tendencies both in earlier rabbinic sources and in the contemporary environment of its creators. We will further trace the history of “These and those …” from its intellectual and literary background in tannaitic sources through its interpretation in the Talmuds. This will lead to a new account of the emergence of pluralistic approaches to Halakhah in the rabbinic period, which is more detailed and nuanced than the linear narratives presented by Boyarin and Yadin-Israel on the one hand, and Fraade on the other. Like Fraade, I argue that the earliest sources for legal pluralism are to be found in tannaitic texts. Yet, these sources go against the monistic grain of most of tannaitic literature. These pluralistic texts, including “These and those …” likely date to later in the tannaitic era or to the transition period between the Tannaim and the Amoraim. Within a few generations of the emergence of these pluralistic teachings, the Palestinian Amoraim began to marginalize them in favor of a more strictly monistic approach toward Halakhah. In contrast, as argued by Boyarin and Yadin-Israel, the Babylonian rabbis tended to embrace the notion that the Halakhah can tolerate multiple opinions. But, contra Boyarin and Yadin-Israel, this was not a radical innovation. In championing pluralism, the authors of the Bavli were returning to “These and those …” and other early Palestinian sources which had been neglected or reinterpreted by the Yerushalmi, restoring these texts and their ideas to rabbinic discourse.Footnote 11
Pluralism and Monism in Halakhic Discourse
The question of monism versus pluralism boils down to whether halakhic discourse can tolerate conflicting rulings regarding a given case. Positions that hold that the halakhic community must embrace one answer and reject all others are considered monistic. Those that hold that there is room for two conflicting opinions to coexist, at least to some degree, are considered pluralistic.
But this simple dichotomy does not account for the variety and gradations of pluralism and monism to be found in rabbinic sources. In order to develop a more sophisticated approach to these sources, I will make use of a further series of categories that I shall call normativity, authenticity, and validity. These categories were first introduced by Bernard Jackson in a somewhat different context and were subsequently utilized by Christine Hayes in her discussions of pluralism and monism in rabbinic legal sources.Footnote 12 Hayes consciously excluded programmatic statements such as “These and those …” from her discussions. I will further develop the concepts of normativity, authenticity, and validity in order to apply them to “These and those …” and related rabbinic sources that explicitly address questions of monism and pluralism in Halakhah.
Normativity refers to the end product of a legal decision-making process. A position or ruling is normative if it is an acceptable basis of action according to the rules of a given legal system. Broadly speaking, there are two basic possibilities for grounding the normative status of a ruling or law: authenticity and validity.
Authenticity relates to the content of a law. A law is authentic if it corresponds to some fixed outside standard. In a system that establishes normativity based solely on authenticity, there is no social process needed to establish normativity. It is essentially a matter of knowledge. Authenticity may be defined as a monistic category, such that any given question can have only one authentic answer, or it may be defined as pluralistic in nature, allowing for more than one authentic answer.
In the rabbinic sources, the central criterion for authenticity is that a ruling in some way derives from God Himself, making it “God's word.” In the texts we shall examine, God's word is knowable to humans primarily through revelation, particularly the revelation at Mt. Sinai as it has been transmitted through the generations by the rabbis.
Alternatively, a legal system may determine the normative status of a law based on validity, “which is to say, the production of a norm or decision according to authorized and recognized procedures of norm-creation or decision-making (e.g., act of the legislature) regardless of its character, quality, or content.… To determine whether a law is valid … one would ask whether it was produced and established according to the recognized procedures and institutions of law-production and establishment that prevail in that society.”Footnote 13 Notions of validity can also be either pluralistic or monistic. A system may recognize only a single authoritative body for validating laws, which must unequivocally establish only a single normative option in any given case. Alternatively, it may recognize multiple such bodies, which might issue conflicting rulings or even allow a single body to validate alternative positions as being normative. In the rabbinic sources we shall examine, the primary mechanism of validation is the rule of the majority. Disputes over the law are resolved by a vote taken by the “court” or the body of qualified rabbis. The winning position becomes the sole normative option.
In a legal system that relies solely on a process of validation to establish normativity, rulings cannot be held up to any standard of authenticity. Law is defined by the will of its empowered validators. In many systems, however, the validation process serves to mediate between authenticity and normativity. In such models, there exists a certain relationship between authenticity and normativity, but not a direct correlation between the two. The intervention of a validation process can potentially declare rulings acknowledged as authentic to be nonnormative. It can also declare a ruling that has not been authenticated to be normative. We shall see examples of such possibilities in the various texts examined below.
Authenticity, Validity, and Normativity in the Tannaitic Sources
Tannaitic sources offer a range of approaches to the question of the relationship between authenticity, validity, and normativity. These sources have been extensively discussed in the scholarly literature.Footnote 14 In order to provide the background for my analysis of “These and those …” I will briefly survey the most relevant texts in terms of the categories outlined above, only citing the full text of the passages when necessary for the discussion.
M. Eduyyot 1:3–6
One of the most sustained engagements of the nature of normative rulings in Halakhah is M. Eduyyot 1:3–6. The passage begins by establishing the central role of authentic tradition in determining the normative status of any given law:Footnote 15
The Mishnah presents a debate between the great sages Hillel and Shammai regarding the quantity of ritually unfit water that disqualifies a mikveh. The sages reject both opinions in favor of a tradition transmitted by two common weavers in the names of the earlier sages Shemaiah and Avtalion. This account portrays halakhic decision-making as a matter of authentication, establishing which position corresponds to the body of teachings passed down by the rabbis from Sinai. This tradition is monistic and contains only a single correct answer to any question. Since determining which position is normative is a matter of ascertaining the objective truth, even a humble weaver could possess the authentic answer, while the greatest sages could, at times, issue incorrect rulings.
The text then proceeds to address a secondary issue arising from this decision:
The Mishnah questions the need for this entire account: Would it not have sufficed to present only the bottom line without the rejected positions of Hillel and Shammai? The Mishnah explains that the purpose of recording these positions is precisely to reinforce the authentic and monistic nature of the Halakhah. Even great sages must recant their positions when confronted with evidence that another opinion, whatever its source, is the authentic ruling in the case.Footnote 20
The Mishnah goes on to ask a variation on its previous question, giving two very different answers:
In the Mishnah and other tannaitic sources, the normative position of the majority, identified as that of the “sages,” is often followed by the dissenting position of a named rabbi. This phenomenon assumes the role of a validating mechanism in determining normative Halakhah, with the majority decision of the collective body of rabbis, referred to as the “court.” It also raises a fundamental concern regarding the very form of these sources. From a literary perspective, the work of the Tannaim is pluralistic, in that it frequently presents multiple conflicting halakhic positions. The question is, what is the relationship between this literary pluralism and the legal status of the dissenting opinions it records?Footnote 23
According to the first answer presented, dissenting views are reported because a later “court” may conclude that this rejected position is, in fact, the correct one. It may then overturn the ruling of an earlier “court,” even if it is not superior to its predecessor in wisdom and number.Footnote 24 This opens the door to a certain degree of pluralism. It establishes both sides of rabbinic disputes as potentially normative, though at any given time, the court must choose between them.
The sages apparently believe that if there are two conflicting traditions regarding a matter, only one can be authentic. Through the validation process, a court does its best to decide which side is most likely to be authentic. However, such findings are only provisional and can be reversed by a later court if it becomes convinced that the previously rejected tradition is, in fact, the authentic one.Footnote 25
R. Yehudah's answer, in contrast, maintains a more strictly monistic position. He sees no normative potential in rejected rulings. According to him, these rulings are only recorded in order to identify them as nonnormative. Otherwise, these positions might remain in circulation and be transmitted anonymously, leading to their being misidentified as normative rulings. in the future.Footnote 26 R. Yehudah may believe that rejected positions lack authenticity and hence have no normative potential. Alternatively, he may believe that even though both sides may be authentic, the legitimation of one side by a court is final, closing the door to the rejected position ever gaining normative status.
T. Ḥagigah 2:9 = T. Sanhedrin 7:1
This well-known account of the origin of the houses takes a monistic view. It begins by describing an extensive court system that operated in the Land of Israel during the Second Temple period, whose primary purpose was to serve as a repository of halakhic tradition. When a doubt about the law arose, an individual could consult his local court to learn the authoritative tradition on the matter. If that court possessed no tradition, the case would be referred to successively higher courts until a tradition could be found. Ultimately, the case could reach the high court on the Temple Mount. If this court also lacked a relevant tradition, the matter would be put to a vote, and the position that received the majority would become normative law for all Israel. However, “Once the students of Shammai and Hillel, who did not serve sufficiently, became numerous, divisions multiplied in Israel, and there arose two Torahs.”Footnote 27
According to the Tosefta's account here, legal questions are optimally resolved by determining which answer conforms with the teachings of the tradition. In the absence of a clear tradition, the court resorts to a process of validation in order to determine which of the possible solutions will be granted normative status. The validation process relies on a majority vote of the members of the high court.Footnote 28 This account makes place for both the authentication and the validation of legal positions; however, it privileges authenticity as the ultimate criterion for normativity. Validity is only considered when authenticity cannot be established. This approach leads to the conclusion that the existence of widespread halakhic dispute is a tragic phenomenon resulting from the breakdown of the chain of tradition and, implicitly, the disappearance of the high court, which could impose a single norm on all of Israel.Footnote 29
M. Yevamot 1:4Footnote 30
This source presents a more harmonious view of the relations between the houses, envisioning a truly integrated pluralistic society. It describes the members of the two houses as living together in a single community, each practicing according to its own rulings. The Mishnah further explains that the houses’ disagreements on issues of marriage and purity laws could have led to the members of the houses refusing to intermarry with each other or to eat each other's food. This would have resulted in the emergence of two separate sects whose interactions were quite limited. Instead, the Mishnah reports, each house recognized the rulings of the other on a post facto basis, allowing for continued intermarriage and social intercourse, despite their disagreements. The passage does not explain the basis for the pluralistic behavior. We only know that on the normative level they accepted the other's rulings to a certain degree.
T. Sotah 7:12
This toseftan source is the first text that we have encountered that stakes out a clear position regarding pluralism in the realm of authenticity:Footnote 31
The hypothetical student in this passage questions the very value and coherence of Torah study. What is the purpose of memorizing conflicting views on so many issues? The homilist declares that both sides of these multitudinous halakhic disputes are authentic words of God. As such, they are inherently worthy of study. Engagement with these words is a form of encounter with the divine.Footnote 34 To my knowledge, this is the only clear formulation of pluralism on the level of authenticity to be found in tannaitic literature. Not surprisingly, this Tosefta passage is not transmitted by the Yerushalmi, but it does appear in the Bavli, where its pluralistic message is clarified and highlighted.Footnote 35
Shlomo Naeh has ingeniously argued that the broader passage in which this statement appears is composed of two independent sources that were subsequently woven together.Footnote 36 According to Naeh, in the original version, the phrase “All these words ‘were given by one shepherd’” refers to the common divine source of the Oral and Written Law, in no way suggesting a pluralistic approach to halakhic disagreements. Naeh's reading has been widely represented as arguing that the notion that the teachings of both houses are of divine origin first emerged only in the Bavli's reworking of this passage.Footnote 37 In fact, Naeh acknowledges that this understanding is implicit in the passage as it appears before us in the Tosefta, which was likely redacted in the late tannaitic period.Footnote 38
The Tosefta's pluralistic declaration that the rulings of both houses were “given by one shepherd,” implicitly answers the question raised in the first chapter of M. Eduyyot: Why is it necessary to preserve and transmit opposing halakhic views? In answering that both sides are equally divine, the Tosefta addresses the question as it relates to the academic study of the Law.Footnote 39 It evades the normative implications of its pluralistic claims. We are left to wonder how, given that both sides of the debate are authentic, the rabbis decide which one is normative, or if indeed they are both equally viable options in practice.
T. Sukkah 2:3 = T. Yevamot 1:13 = T. Eduyyot 2:3
This passage requires special attention. It is the only text in tannaitic literature that relates to the normative status of the entire body of teachings of each of the two houses, rather than to specific disputes. Furthermore, the efforts of the Amoraim to interpret this difficult passage play a significant role in the history of “These and those….” The passage reads as follows:Footnote 40
Here we have two opposing positions regarding the debate between the houses. The first statement takes an unequivocally monistic position, establishing the Law according to Beit Hillel in all circumstances.
In contrast, the final line of the passage allows one to choose to follow either house, provided one follows that house's rulings consistently. Numerous modern scholars have sought to resolve the conflict between these two positions. Drawing on the Yerushalmi, Louis Ginzburg and Saul Lieberman argued that the two parts of the passage reflect different historical periods: the pluralistic ruling reflecting an earlier period, before Beit Hillel achieved dominance, and the monistic ruling, a later one.Footnote 42 But there is no indication in the text that the two rulings date from different eras. At the very least, if the pluralistic ruling was meant to relate to an earlier period, it should have been presented first.
Chanoch Albeck and others have argued that the ruling in favor of Beit Hillel should be understood as allowing for exceptions and for individuals to continue practicing according to Beit Shammai.Footnote 43 However, this reading does not square with the all-inclusive nature of the ruling, that the Law always (le-ʿolam) follows Beit Hillel.Footnote 44
In fact, there is no need to reconcile the two parts of this passage. They appear to be two independent, originally unrelated traditions. The primary purpose of the second tradition was not to advance a pluralistic position regarding the houses, as it takes this position for granted. Its main emphasis is attacking the practice of selectively adopting the rulings of different rabbis based on the stringent or lenient nature of the ruling. The pluralistic assumption of this tradition only stands out because the Tosefta juxtaposes it with the first absolute statement in favor of Beit Hillel. We have before us two different sources, which were anthologized together by the later editors.
It is not clear why these editors chose to juxtapose the two sources. They may have sought to present two opposing views regarding the normative status of Beit Shammai, signaling that this remained an unresolved issue at the time of the Tosefta's redaction. Alternatively, the Tosefta may have included the second part of the passage despite its pluralistic stance, perhaps because of its opposition to accepting the stringencies of both houses. On its own, the first ruling leaves open the possibility that though the Law follows Beit Hillel, it is still advisable to take into account Beit Shammai by following its stringencies. The second statement in the passage might have been included to clarify that Beit Shammai's rulings should play no role in determining one's practice. A person should follow only Beit Hillel, in their stringencies and their leniencies.Footnote 45
Whatever their motivation, the creators of this part of the Tosefta juxtaposed two independent sources with opposing views of the status of Beit Shammai. The passage neither decides between the two positions nor even calls attention to the conflict. It rather maintains a place for both pluralistic and monistic approaches within rabbinic discourse, without explaining their exact relationship.
“These and Those …”: The Text Itself
The core text of the “These and those …” tradition appears, in virtually identical form, in four parallel passages in the Yerushalmi and once in the Bavli:Footnote 46
In the Yerushalmi, “These and those …” appears as a self-contained tradition, whereas in the Bavli, it is part of a longer narrative that is attributed to the Babylonian sage Shmuel. In principle, it is possible that the Yerushalmi is quoting an excerpt from the Bavli story, but it seems far more likely that the text was in circulation both in the Land of Israel and Babylonia in a fixed form and that Babylonian storytellers integrated it into their tale.
The Yerushalmi introduces our text with the word tani, which generally suggests a source of tannaitic provenance. However, as Shmuel Safrai has noted in this context, in the Yerushalmi, tani can sometimes refer to texts from the early amoraic period as well.Footnote 53 Given that this text is first attested in these amoraic sources and that it is referenced by the second-generation Amora R. Yoḥanan in the Yerushalmi, and by his contemporary Shmuel in the Bavli, there is good reason to suspect that this tradition dates to the beginning of the amoraic period or to the late tannaitic period at the earliest.
Between Monism and Pluralism in “These and Those …”
What distinguishes “These and those …” from the earlier texts we have examined is the way it explicitly integrates pluralistic and monistic claims into a single declaration. It represents the first attempt to negotiate the tensions between pluralism and monism, as well as authenticity and normativity, within Halakhah.
The first statement declares that the decisions of both houses reflect “the words of the living God.” By formulating its discussion in terms of the words of God, the statement frames the question of halakhic pluralism in terms of authenticity. “The words of the living God” encompass conflicting opinions, at least in some cases. This idea parallels and perhaps draws on the passage in T. Sotah 7:12. As we have seen, Naeh argues that this source likely emerged only in the late tannaitic period, contemporaneous with, or just prior to “These and those.…”
The formulation “the words of the living God” requires further scrutiny. This phrase appears only once in the Bible, when Jeremiah criticizes those who “pervert the words of the living God.”Footnote 54 The exact meaning of the verse is obscure, but the term “the words of the living God” refers there to prophetic oracles, and the verse appears to continue the prophet's condemnation of false prophets from earlier in the chapter.Footnote 55 In using this biblical phrase, the “These and those …” statement implies that the teachings of both houses have the status of divine revelation. If we understand the biblical verse as an attack on false prophets, the rabbinic use of “the words of the living God” has further implications. In the prophetic world view, if two prophets present conflicting messages, one of them must be a false prophet. The one true God can give only one message to His people.Footnote 56 “These and those …” comes to declare that unlike the disputes in which the prophets engaged, the conflict between the houses is not a clash between true and false teachings, but between two alternative divine truths.Footnote 57 In this reading, “These and those …” poses a direct challenge to the monistic view of divine revelation, which, as we have seen, is dominant in the tannaitic sources and is implicit in the words of the prophets.
The second statement moves from the realm of authenticity to that of normativity. In and of itself, this assertion that the Law always follows Beit Hillel is quite clear and is anticipated in the Tosefta. But taken as a whole, the two statements of “These and those …” make a startling claim: Despite the fact that the rulings of both houses are authentic, only the rulings of Beit Hillel are normative. It divides the world of Halakhah into two distinct legal realms: the authentic, which is inherently pluralistic, and the normative, which is inherently monistic.
What, then, is the significance of a law's authenticity if it lacks normativity? It seems that as in T. Sotah 7:12, pluralism on the level of authenticity is significant in the academic context. Even nonnormative positions are still worthy of study, as they emanate from the divine.
“These and those …” is perhaps the earliest source that establishes and contrasts two autonomous realms in the world of Torah study. There is an academic realm in which the study of Torah is a devotional practice. There, the only concern is with the authenticity of the material studied; normativity is irrelevant. On the other hand, there is the realm of halakhic decision-making that determines normative practice. There, a teaching's authenticity is of interest only as a necessary, but not sufficient, factor in establishing its normative status.
The Bat Kol
“These and those …” introduces yet another innovation in the field of rabbinic jurisprudence: a new source of halakhic authority. Until now, we have seen two primary sources of authority: the tradition that emanates from the revelation at Sinai and rule of the majority, which is rooted in the collective authority of rabbis of each generation. Now we encounter the possibility of revelation directly to the rabbis. In tannaitic literature, the bat kol is a divine “echo,” a lesser form of heavenly communication.Footnote 58 Since the bat kol is inferior to the prophecy of even the last of the biblical prophets, we do not generally find it issuing declarations on matters of Halakhah or which otherwise seek to alter the human status quo. But in “These and those …,” the bat kol becomes an extension of the normative Mosaic revelation, issuing halakhic rulings. The notion that God might at any time intervene in the halakhic process is a radical innovation that is inherently destabilizing to rabbinic authority. No rabbinic decision can ever be deemed final. It is always possible that it will be undermined by a subsequent revelation. As we shall see, some talmudic sources reject the possibility of such divine meddling in the work of the rabbis.
The Sources of “These and Those …”
The meaning and significance of “These and those …” can be further appreciated by establishing its relationship to earlier sources. “These and those …” appears to have evolved from the Tosefta passage discussed above (henceforth referred to as “the Tosefta passage”), which juxtaposes monistic and pluralistic positions regarding the debate between the houses.Footnote 59 “These and those …” repeats the Tosefta passage's categorical ruling in favor of Beit Hillel almost verbatim. As in the Tosefta, “These and those …” does not present this ruling on its own. There, too, it is accompanied by a teaching that expresses pluralistic attitudes toward the dispute between the houses.
These similarities are unlikely to be coincidental. As we shall see, the Yerushalmi already calls attention to them and assumes that the two passages are interrelated. The best way to understand this relationship is to read “These and those …” as a reformulation of the Tosefta passage. This new formulation sought to address the internal contradiction in the Tosefta passage when it is read as a single statement.
First, it removed the normative implications from the Tosefta's pluralistic statement. Instead of declaring that consistent practice according to Beit Shammai is permissible, it merely affirms that its rulings are “the words of the living God.” In moving the possibility of pluralism to an independent, theoretical realm of authenticity, “These and those …” made space for pluralism and monism to coexist.
Yet the paradox remains. “These and those …” does not explain the logic underlying this discrepancy between the pluralistic realm of authenticity and monistic realm of normativity. We still do not understand why, if the rulings of both houses are authentic, only those of Beit Hillel are normative. “These and those …” mitigates this problem by attributing its statement to the bat kol. God, whose ways cannot be known, might be granted more leeway when it comes to paradoxical and self-contradictory statements than mortal rabbis. The problem of the relationship between pluralism and monism is thus more safely relegated to the realm of divine mystery.
The element of divine revelation points to a second source underlying “These and those….” T. Sotah 13:3 relates the following account:Footnote 60
References to the bat kol are quite rare in tannaitic literature. The wider passage in which this account appears contains the only tannaitic examples of a bat kol revealing itself to postbiblical figures.Footnote 63 As such, the fact that both “These and those …” and this Tosefta narrative describe a bat kol that is directed at the sages, regarding Hillel or his followers, strongly suggests a direct relationship between them. It seems that the authors of “These and those …” borrowed the notion of a bat kol mentioning Hillel for its own purposes, transforming it from indirect words of praise for the man into a binding ruling regarding the teachings of his followers.
The Historical Context of “These and Those …”
Our argument that “These and those …” builds on two passages from the Tosefta further strengthens the case for a late tannaitic or early amoraic dating for the text. Given this dating, we can further endeavor to understand this tradition within its context in the history of the debate between the houses and its ultimate resolution.
In an important study, Safrai argued that throughout most, if not all, of the tannaitic period, there was no categorical ruling in favor of Beit Hillel.Footnote 64 During this time the sages saw the rulings of both houses as reflecting viable sources of law. They decided issues on a case-by-case basis in favor of one side or the other, sometimes rejecting both positions in favor of a third. However, already in the time of R. Akiva, the rabbis began to show a strong tendency to favor Beit Hillel. Nevertheless, some disputes remained undecided as late as the penultimate generation of Tannaim.Footnote 65 By the end of the tannaitic period, though, accepted halakhic practice was overwhelmingly dominated by Beit Hillel's positions.
The only explicit, categorical ruling in favor of Beit Hillel in tannaitic literature is found in the Tosefta passage cited above. Safrai assumes that such a categorical ruling in favor of Beit Hillel implicitly underlies the Mishnah as well.Footnote 66 Yehuda Brandes disputes this last claim, arguing that the Mishnah presents disputes between the houses as unresolved matters, leaving at least the possibility of ruling according to Beit Shammai.Footnote 67 According to Brandes, it was only at the beginning of the amoraic era that a fixed rule deciding in favor of Beit Hillel in all cases began to be accepted as binding in the Land of Israel. In Babylonia, this ruling took root even later, toward the end of the amoraic period.Footnote 68
Thus, by the time “These and those …” emerged, as rabbinic Judaism transitioned from the tannaitic to the amoraic era, the rulings of Beit Hillel had largely become normative. A categorical ruling in favor of Beit Hillel was apparently already in circulation, but its authority was not fully established. It was not included in the Mishnah. In the Tosefta, it is accompanied by a dissenting view. Understood in this context, “These and those …” represents an important step in the consolidation of Hillelite hegemony. It re-presents the categorical ruling of the Tosefta, this time without any accompanying dissent, and attributes it to a divine fiat, establishing its authority as beyond challenge.
We cannot know the exact balance of power at the time that “These and those …” was propagated. It may be that “These and those …” merely reflected the widespread acceptance of this ruling at the time, giving a legal and theological imprimatur to a fait accompli. It is also possible that the categorical ruling in favor of Beit Hillel was still disputed by some. If so, “These and those …” was part of a partisan effort to gain universal acceptance for such a legal principle.
Yet even as the rulings of Beit Hillel were gaining increasing normative currency at the expense of those of Beit Shammai, the study of nonnormative positions became entrenched in the curriculum of rabbinic study. The late tannaitic and early amoraic periods saw the redaction of the Mishnah and its canonization as the primary text of study among the rabbis. Since the Mishnah is characterized by its inclusion of dissenting opinions, those of Beit Shammai prominently among them, its emergence irrevocably cemented the teachings of Beit Shammai into a central position in the world of rabbinic scholarship.
As we have seen, the first chapter in M. Eduyyot already addressed the necessity of preserving nonnormative opinions in monistic terms. There, the Mishnah assumes that the reason for this practice is that it in some way forwards the project of transmitting and implementing normative law, either because these positions may in the future be granted normative status or because the knowledge of these nonnormative positions will help students learn to identify and embrace the normative.
But by the beginning of the amoraic period, these arguments for the continued study of the teachings of Beit Shammai would not have resonated with contemporary audiences. As time went on, the likelihood of the teachings of Beit Shammai ever being accepted by a future court, or being mistaken for those of Beit Hillel, became increasingly remote. “These and those …” offered a new rationale for the continued study of the teachings of Beit Shammai. Despite their lack of normative potential, the study of Beit Shammai's rulings, no less than those of Beit Hillel, constitutes an immediate encounter with the divine word and thus they are equally worthy of study. “These and those …” carves out a space for the teachings of Beit Shammai beyond the reach of monistic normative concerns.Footnote 69
“These and those …” thus engaged the tension between two emerging trends during the period: the triumph of Beit Hillel over Beit Shammai in the normative realm and the canonization of the teachings of Beit Shammai and other nonnormative rulings in the rabbinic curriculum of study. It affirms both practices by differentiating between the monistic arena of normative practice and the pluralistic realm of academic inquiry.
“These and those …” most likely came into existence sometime in the late tannaitic or earlier amoraic periods as a response to the ostensible internal contradiction in a passage that appears repeatedly in the Tosefta and to the tensions between the emerging norms of rabbinic practice and study. This new formulation strengthened the monistic and pluralistic impulses by rooting them both in the words of the bat kol. It further created space for these two impulses to coexist by delineating distinct territories of theory and practice for each.
Yet, “These and those …” does not present a complete theory of halakhic pluralism and monism. It fails to explain the reason for this discrepancy between the realm of the authentic and that of the normative. It would be left to future generations of rabbis to attempt to resolve this question.
“These and Those …” in the Yerushalmi
Over the course of the talmudic period, “These and those …” underwent a sustained process of recontextualization and interpretation. In the rest of this article we will trace this process from the comments of the early Palestinian Amoraim through the latest strata of the Bavli.
Our tradition appears four times in the Yerushalmi. Three of these passages, Y. Yevamot 3b, Y. Sotah 19a, and Y. Kiddushin 58d, are identical. In the last instance, Y. Berakhot 3b, the order of the passage is slightly rearranged to fit the context. The text in the three parallel passages reads as follows:Footnote 70
The Yerushalmi here deploys “These and those …” to explain the competing claims found in the Tosefta passage. It resolves the problem in a temporal manner. The two parts of the passage are understood to refer to different historical periods, a pluralistic period that lasted “until the bat kol went out” and a monistic period that began “after the bat kol went out” and continues to this day.Footnote 71
Critical to the Yerushalmi is the fact that unlike the Tosefta passage, “These and those …” presents the ruling according to Beit Hillel as part of a narrative event, the declaration of the bat kol, which took place at a single, though unspecified, point in time. In the text itself, the timing of this revelation appears not to be particularly relevant. But the Yerushalmi leverages the temporality of “These and those …” to tell a story about the development of the Law, which resolves the contradiction in the Tosefta passage.
The Yerushalmi does not explicitly deny the pluralistic claim made by “These and those.…” It may have agreed that Beit Shammai's rulings are just as authentic as those of Beit Hillel, but the Yerushalmi shifts the reader's attention away from this element of the tradition. Its focus is on the ruling according to Beit Hillel as it appears in both “These and those …” and the Tosefta. It is this ruling that defines the present and the future. The Yerushalmi further strengthens the hegemony of Beit Hillel by adding that failure to follow Beit Hillel's rulings constitutes a capital offence.Footnote 72
It is even possible to understand the Yerushalmi as entirely negating the relevance of the claim that both houses represent “the words of the living God.” Just as it assigns the two parts of the Tosefta passage to two different eras, the Yerushalmi can be read as associating the first part of “These and those …” with the bygone time in which practice according to Beit Shammai was permitted. In this reading, the Yerushalmi rejects any distinction between authenticity and normativity, understanding the statements of the bat kol as reflecting both the authentic and the normative status of the houses. The bat kol would then be interpreted as saying, “Until now, these and those were the words of the living God, but henceforth, the Law always follows Beit Hillel.” Pluralism on all levels would thus be declared an idea whose time had passed.
The Yerushlami's focus on the monistic aspect of “These and those …” becomes even sharper when we consider the contexts in which the passage appears. In Y. Berakhot 3b it is part of a discussion of M. Berakhot 1:3. This mishnah tells of how the sages condemned R. Tarfon for risking his life in order to follow the ruling of Beit Shammai. They declared that indeed he deserved to die that night for “transgressing the words of Beit Hillel.” The Yerushalmi uses this case as an opportunity to emphasize the importance of following the rulings of the sages, identified here with the rulings of Beit Hillel. It cites “These and those …” as part of this pro-Hillelite polemic. The line is brought solely for its divine backing for practice according to Beit Hillel. The declaration that even Beit Shammai represents the “words of the living God” appears only incidentally.
Similarly, in both Y. Yevamot 3b and Y. Kiddushin 58d, “These and those …” appears in the context of a discussion of M. Yevamot 1:4 and its parallel, T. Yevamot 1:10. These sources describe the houses’ practice of intermarrying with each other despite their disagreements regarding marriage laws. Consistent with its overall discomfort with pluralistic ideas and practices, the Yerushalmi rejects the simple reading that the houses practiced a certain level of normative pluralism by accepting the other's rulings on a post facto basis. The Yerushalmi assumes that members of each house could not have agreed to marry individuals who may have had the status of mamzer according to their own opinion. How then did they intermarry, nevertheless? The Yerushalmi posits two possible solutions, to which we shall return presently. Both positions reject the simple reading of the Mishnah that the members of the houses accepted each other's rulings, even on a post facto basis.
The Yerushalmi finds the very notion that the two groups lived together in a single community, each practicing according to a different set of rulings, to be problematic, even if the sides did not compromise their principles in any way. Elsewhere, the Yerushalmi rules that the law of “Thou shalt not make factions” prohibits the division of the community into two groups following opposing rulings.Footnote 73 The Yerushalmi thus cites its interpretation of “These and those …” in order to establish that even this passive form of normative pluralism existed only in the past, before the bat kol. In the current, post–bat kol world, such a situation would certainly be prohibited. Here, as in Y. Berakhot 3b, “These and those …” is cited despite—not because of—its pluralistic element. It appears as part of a larger effort to establish Hillelite normative monism as a central pillar of halakhic practice.Footnote 74
Rav's Interpretation of “These and Those …”
We now return to the Yerushalmi's interpretations of the Mishnah's description of intermarriage between Beit Shammai and Beit Hillel. The Yerushalmi cites a dispute between Rav and Shmuel about the very nature of the dispute between the houses.Footnote 75 Shmuel adopts the simple understanding of this dispute, that Beit Shammai and Beit Hillel each followed divergent practices. The Yerushalmi posits that according to Shmuel, the houses intermarried not because they pluralistically accepted the other's rulings, but because they relied on divine providence to save them from entering into marriages that would be prohibited according to their own rulings. It is in this context that the Yerushalmi cites its interpretation of “These and those …,” further limiting the pluralistic implications of the Mishnah's account.
According to Rav, however, Beit Shammai never actually practiced according to its own opinions but rather accepted the normative status of Beit Hillel! Rav's claim is difficult to understand, as it flies in the face of numerous tannaitic sources that testify precisely to Beit Shammai following their own rulings.Footnote 76 The Bavli indeed rejects the position of Rav in light of this evidence.Footnote 77 The Yerushalmi, however, does not challenge the viability of Rav's account. Rav allows for a more elegant explanation of the Mishnah's account of intermarriage between the houses, which the Yerushalmi finds so problematic. According to Rav, this practice requires no explanation, as in practice they both followed the same set of laws for marriage and divorce. Further, as Richard Hidary argues,Footnote 78 the Yerushalmi's entire discussion of M. Yevamot 1:3 is focused on challenging both the normativity and authenticity of the rulings of Beit Shammai.Footnote 79 Rav's position supports this agenda as well.
Rav's curious position still requires explanation. It appears to be based on a literalistic reading of “These and those….” It seems that Rav rejects the historical interpretation of this text presented by the Yerushalmi, which posits that the ruling according to Beit Hillel took effect only subsequent to its revelation. Rav sees the bat kol as revealing an eternal truth. As such, it was prohibited to practice according to Beit Shammai even prior to the bat kol. This raises the question as to how it could be that the members of Beit Shammai were in fact sinning all those years in which they followed their own rulings. Rav posits that members of Beit Shammai were aware that God did not consider their rulings to be normative. As such, they must have followed Beit Hillel all along! This position is most easily understood if we assume that Rav dated the bat kol to the start, rather than the end, of the dispute between the houses. How then does Rav understand the dispute between the houses? According to Rav, since the views of both sides were both authentic “words of the living God,” the members of the houses debated their positions solely as an academic exercise in Torah study.
Rav's interpretation thus pushes the division between the authentic and normative realms proposed in “These and those …” even further. He assumes that at no point was there ever any degree of normative pluralism, even at the level of the existence of two communities simultaneously following different practices.Footnote 80 Going back to the earliest days of the rabbis, their community was always pluralistic on the academic level but thoroughly monistic in practice. Rav paradoxically leverages the pluralistic teaching of “These and those …” in order to write out of history the most famous example of normative pluralism in rabbinic collective memory. Rav's radically monistic reading of “These and those …” first emerged in Babylonia at the beginning of the amoraic period, but in subsequent generations, it was in the Land of Israel that it was most favorably received.
The Move to Yavneh
The Yerushalmi's citation of “These and those …” is consistently followed by a brief commentary:
Given the significance of “These and those …” as a transformative moment in the history of Halakhah, it is hardly surprising that R. Yoḥanan sought to identify the time and place of this event. R. Yoḥanan's choice to situate “These and those …” in Yavneh infuses the tradition with further significance.Footnote 81 Yavneh represents an established narrative world in tannaitic literature. By invoking it, R. Yoḥanan furthers the process of the narrativization of “These and those …,” giving the story a highly meaningful setting in space and time. The bat kol revealed itself to the most august assembly of rabbis in history. This further raises the status of the ruling in favor of Beit Hillel, as it now becomes the most important of the many halakhic decisions made at Yavne. In locating the narrative in Yavneh, R. Yoḥanan also sets the ruling in favor of Beit Hillel at the very beginning of the tannaitic period. Asserting an early date for the bat kol further solidifies the exclusive normative status of Beit Hillel, pushing back the pluralistic era of rabbinic Judaism to the distant past. In this way, R. Yoḥanan's statement is in line with the Yerushalmi's larger agenda to promote and strengthen the ruling in favor of Beit Hillel and monistic approaches in general.
“These and Those …” in the Bavli
The text of “These and those…” appears in the Bavli only once, in Eruvin 13b. The Bavli accepts the Yerushalmi's basic understanding that the bat kol served to end a period of pluralism and usher in a new era of Hillelite monism. But its interest in this text is quite different from that of the Yerushalmi. In the Bavli, the presentation of “These and those …” is immediately preceded by a discussion of the following tradition:Footnote 82
This tradition, like much of the passage which precedes it, precisely celebrates the academic study and even creation of obviously nonnormative positions. A similar tradition is also found in the Yerushalmi, but it also records that later rabbis felt compelled to reject earlier depictions of pluralist endeavors.Footnote 84 The student is roundly condemned as “unworthy to issue rulings” and is “cut off from Mt. Sinai.”Footnote 85 In contrast, the authors of the Bavli passage apparently believed that such nonnormative arguments possess some degree of authenticity, otherwise they would not be of much value even on the theoretical plane.Footnote 86
Thus, when the Bavli presents its version of “These and those …,” the reader is already primed to focus on the pluralistic aspects of this tradition.Footnote 87 The Bavli's version consists of a longer narrative that endows “These and those …” with new meaning:
This narrative portrays the dispute between the houses as leading to a deadlock, as the community was unable to arrive at a ruling in favor of one side or the other. The reason for this crisis was not the houses’ opposing halakhic positions per se, but rather the fact that each side insisted that only their views were correct. Both houses were committed to a monistic vision, making it impossible for them to concede on any issue.
In this context, the bat kol takes on new meaning. It no longer mysteriously serves to end an era of pluralistic coexistence. It comes to resolve a virtual civil war. The bat kol lays out a vision of Halakhah and of the rabbinic community that is simultaneously pluralistic and monistic, which serves to correct the circumstances that led to the conflict. In declaring that both sides represent “the words of the living God,” the bat kol critiques the intransigence of the disputants. Halakhic arguments are not Manichaean contests between right and wrong. Those who stand on the other side on the debate are still on God's side. Pluralism on the level of authenticity is no longer only of value in the realm of academic scholarship. It has direct social and ethical ramifications.
On the other hand, the bat kol also imposes necessary unity of practice on the rabbinic community by validating the teachings of Beit Hillel as normative. It cuts the Gordian knot of the dispute between the houses, laying the ground for a functional rabbinic society. The world it envisions has a place for both pluralism and monism, combining social cohesion with intellectual tolerance.
The Bavli continues to advance this broader social and ethical agenda in the gloss that follows the story. This commentary seeks to resolve some of the key unanswered questions of the “These and those …” tradition:
The questioner wants to understand the exact relationship between pluralism and monism, authenticity and normativity. If both sides are authentic, then how does one decide between them? The Bavli explains that God validates rulings based on the moral character of those who transmit them rather than on any advantage inherent to the rulings themselves. In ruling in favor of Beit Hillel, He seeks to promote core values of humility and respect for others and their ideas. God's ultimate concern in any given case is not whether something is pure or impure, permitted or forbidden, but whether the ruling promotes a kinder, gentler rabbinic community in which the halakhic dispute would not once again lead to social division.Footnote 95
Taken as a whole, the Bavli's version of “These and those …” represents a further step in the narrativization of this tradition and of the Law itself. The Bavli places the declaration of the bat kol into a developed plot, which takes place in a narrative world with a social and political structure. The result is an understanding that embeds the Law in its wider social and ethical context. The Bavli concludes that the process of validation must weigh factors beyond the internal considerations of the legal system. The sages should follow God and consider the impact that granting normativity to a given ruling will have on society as a whole.
Between the Bat Kols
Though the entire “These and those …” tradition appears only once in the Bavli, numerous references to it appear in the Bavli's anonymous stratum. These are likely the latest sources discussing “These and those …” in the classical rabbinic canon. As in the other talmudic sources, in these passages the bat kol is portrayed as dividing the history of Halakhah into pluralistic and monistic eras. On two occasions, the Bavli refers to “These and those …” to resolve the contradiction in the Tosefta passage in the same way as the Yerushalmi, declaring that there is “no difficulty; the latter statement [was made] before the bat kol, while the former [was made] after the bat kol.”Footnote 96 In other cases, it invokes “These and those …” to make a similar argument to resolve parallel issues.Footnote 97 Thus far there is nothing innovative in the Bavli's comments. However, in all five of these cases, the Bavli continues by offering an alternate understanding that suggests an entirely new approach to the significance of “These and those …”:Footnote 98
This argument brings “These and those …” into dialogue with the only other talmudic account of a bat kol issuing a halakhic ruling: the story of the “oven of ‘Akhnai.”Footnote 100 There, the bat kol rules that the Law always follows R. Eliezer. R. Yehoshuʿa, however, rejects this ruling, arguing that the bat kol lacks the authority to render halakhic decisions.
These two stories were meant to exist in alternative narrative universes. God could not possibly have declared that the Law always follows both Beit Hillel and R. Eliezer, because R. Eliezer's rulings often follow those of Beit Shammai. Similarly, the unquestioning acceptance of the authority of the bat kol in “These and those …” and R. Yehoshuʿa's outright rejection of the bat kol in the case of the “oven of ‘Akhnai” cannot be reconciled.Footnote 101 The two stories represent different versions of rabbinic history and conflicting visions of the nature of Halakhah and halakhic authority.Footnote 102
The Bavli, however, reads both stories as accurate history, which take place in the same narrative universe. In order to reconcile the conflicting accounts, the Bavli posits that the two stories represent opposing sides of an active tannaitic debate regarding the authority of the bat kol. In this interpretation, not everyone accepted the authority of the bat kol of “These and those.…” According to R. Yehoshuʿa, practice according to Beit Shammai remains permitted, despite the divine decree. This allows for a different explanation of the contradiction between the two parts of the Tosefta passage. They do not necessarily describe two stages of halakhic development. They may reflect two sides of an ongoing disagreement regarding the permissibility of practicing according to Beit Shammai. This conforms with what I have argued is the simple reading of the Tosefta passage.
This new narrative world constructed by the Bavli is more pluralistic than either of the worlds from which it was formed. It is premised on the validity of both stories’ perspectives. This reading further undercuts the authority and significance of the monistic element of “These and those.…” The bat kol is no longer a transformative event ushering in a new era of practice according to Beit Hillel. Rather, basic questions regarding the normative status of Beit Shammai and of divine revelation itself remain unresolved sources of disagreement even after the bat kol.Footnote 103 In this framework, the bat kol becomes just one more voice in the rabbinic beit midrash.
Conclusion
“These and those …” represents an important landmark in rabbinic intellectual history. Apparently emerging in the late tannaitic or early amoraic period, it is among the earliest rabbinic sources to posit the existence of pluralism at the level of authenticity in Halakhah. It is the first source that seeks to balance the competing claims of monism and pluralism and to establish a clear distinction between theoretical and applied Halakhah. But the pluralistic ideas forwarded in this text did not take root in the Palestinian soil from which they germinated. The Amoraim of the Land of Israel largely embraced a monistic approach to halakhic disputes. For them, the primary significance of “These and those …” lay in its normative, monistic declaration in favor of Beit Hillel. Meanwhile, in Babylonia, “These and those …” became part of an expanded narrative, attributed to Shmuel. This account emphasized the way in which “These and those …” creates a place for both pluralism and monism within Halakhah, developing these ideas into a wider and more clearly articulated theory of the pluralistic potential of Halakhah. In contrast, Rav interpreted “These and those …” in a monistic manner, more in line with the approach advocated in the Yerushalmi. Later Babylonian sages rejected Rav's position and further amplified the more pluralistic message of the narrative attributed to Shmuel. On several occasions the Bavli goes so far as to interpret “These and those …” in a manner that potentially undermines the normative, monistic element of the tradition's message, placing even the unequivocal declaration of the divine bat kol itself into a multivocal, pluralistic framework.
The account I have presented here revises earlier, more linear accounts of legal pluralism in rabbinic thought, which argued either that legal pluralism is present already in tannaitic literature, or alternatively, that it emerged only in Babylonia toward the end of the talmudic era. In fact, the idea that both sides of a halakhic argument might be equally authentic charted a more bimodal path through the rabbinic period. It emerged in the Land of Israel at the cusp of the tannaitic and amoraic periods, only to subsequently disappear there and then remerge in Babylonia. It was in the Babylonian academies that the concept of legal pluralism was fully developed and became firmly established in the Jewish legal and intellectual tradition.
