On Second Temple Halacha

being an extract from a far longer project that has somewhat stalled

Hey all, I hope this world is treating you ok, I have been very busy with the stuff of life, and several research projects which have got horribly out of hand (one of which has required diving into Heidegger’s Black Notebooks, G-d forbid any of you suffer such a fate). I’m working on what to do with them, but, in the meantime, here’s at least something that may be of interesting to some.

This is an extract from a far longer project intended to provide an overview of much of Jewish literature from the 2nd Temple Period through to the end of the Talmudic period, but it turns out historiography of much of that period is extremely fraught, far more than I already knew it was, so its on the backburner while I work out a framework for said project. Parts of it are good though, I think, so here’s some of it.

To investigate the development of the tradition of religious law we must start with the biblical text itself, as the authoritative application of biblical law has its origins here. The development of the idea of religious obligation is complex and must be traced diachronically across the composition of the biblical texts, as attitudes toward law change over time.

In much of the Biblical narrative obedience to Divine command is specifically of that spoken through a Prophet, rather than previous revelation preserved in writing.¹ One can propose a later shift toward Mosaic revelation, eventually settling in the authority of the textual record of prior Sinaitic revelation. The reasons for this are difficult to hypothesize with any certainty. Multiple contributing factors that have been suggested, the most transformative to my mind are the spread of literacy aided by the growth of urban centres, causing a motion to “secondary orality,” an oral culture dependent on a set of written texts independent of or in conjunction with priestly or prophetic authority.²

While some practices date earlier, widespread practice of an interpretation of many of the Pentateuchal laws first appears in the archaeological record during the Hasmonean Period.³ Halacha as a literary genre, too, emerges in this period,⁴ and the interpretation and practice the commandments is vigorously debated in the following centuries. The emergence of material and textual evidence of specific halachic practice appears to be a Second Temple phenomenon, which concretizes in a particular mode of scriptural exegesis, exhibiting a dependency on the biblical legal corpus, and an assumption of the texts’ own prescriptive authority relative to them. Caution is required however, as evidenced by the later Rabbinic tradition, in which both their halachic exposition and the legal text of the Pentateuch are asserted as both revealed at Sinai; and secondly, the insertion of Halachic and doctrinal glosses into the text of the Pentateuch itself,⁵ and interpretive or revisionist material in non-Pentateuchal texts.⁶ To my mind it is highly probable that the development of the biblical corpus is directly shaped by concerns for religious custom and dependent on these ideas concurrent to the development of custom dependent on the biblical texts.⁷

A further consideration is the presence of legal material in the narrative books. This is an underutilized resource for determining the development of religious practice, and many observations can be made regarding what is considered normative or ideal behaviour from these texts. Ruth appears to be in part an exegetical treatise on the halacha of marriage and inheritance,⁸ but in which purity concerns are absent, and the descriptions given of Torah in 1 and 2 Maccabees differ at points as to what they consider to be the contents of the Law. The primary purity concerns in 1 Maccabees appear to be space or place, particularly the Temple and its precincts (4:36-51) but also environs of Gaza(ria) that previous housed idols (13:43-8). There is no narrated concern for the purification of people, even priests – the priests chosen are “blameless” and “devoted to the law,” who then cleanse things and places, rather than being cleansed themselves. There is no mention of water, immersion, or other similar customs attested later (or even the simpler purification procedures in Leviticus).⁹ Judith recognises some form of Kashrut (10:5, 12:2), but restricts purity to the sphere of the Temple (16:18).¹⁰

While there is a shift from the spoken to written word, this, alongside depictions of nomian behaviour in post-Exilic books such as Ruth suggests the relationship between practical religion and written text is more complex than any assumption of unidirectional dependence: The assertion of Torah revealed at Sinai may not be the same, strictly speaking, as that the text of the Pentateuch was revealed as such. This proposition should be distinguished from a simple assertion of the same idea as the later rabbinic dual Torah, but rather a suggestion that the constitution of Mosaic religion in belief and practice, and the documentation of such in the biblical canon, may be related in a more complex way than often assumed. There is precedent for this, as Vered Noam writes:

The identical existence in both the Qumranic and Tannaitic corpora of halakhic traditions that are divorced from, and sometimes even contrary to, the scriptural text, points to an ancient stratum of common inherited material. This hidden, ancient stratum preceded the split between the sects.¹¹

As this “stratum of common inherited material” precedes the separation of the Yachad (or a precursor group they in turn separated from), that places it somewhere in the later decades of the 2^nd C CE or early parts of the first C CE (erring on the side of caution), roughly concurrent with the composition of the Damascus Document. The evidence appears to point to an extra-textual legal tradition predating this embedded in the texts that postdate this period. This broad developmental process results in the canonization of various biblical texts, and may contribute to their redaction and editing, and further produces the various contested literatures of the Second Temple, a process that likewise, far later, produces the dual Torah, written and oral, described in the Bavli Gemara.¹² Given the textual evidence we have we should not assume a unidirectional causal relationship in which religious culture is caused by texts but rather also maintain awareness that texts (including their redaction, editing, collation and canonization) are the product of a religious culture, accreted diachronically.

Of further consideration are the various schools in the Second Temple Period, witnessed by contemporary sources.¹³ The surviving evidence of these groups is complex and incomplete. Halacha authored by many of these groups has not survived, and can often only be reconstructed from oppositional polemic, various modes of inference, or later accounts which must be treated carefully. We have no contemporary representative writings by the Sadducees,¹⁴ nor elaborating the general position of the Pharisees.¹⁵

Thus, a charting of the surviving evidence is necessary for any reconstruction of the various halachic schools attested by the evidence.¹⁶ In examining “Halacha” I will define the term as a genre concerned with a law revealed through Moses at Sinai/Horeb and predicated on a presupposition that the law thus revealed requires interpretation for proper application. Generally, this means that halachic authority is dependent on prior revelation rather than itself being the product of direct revelation to the producers of said literature.

The Temple Scroll and Jubilees witness the complicated relationship between revelation and authority. Both are products of the Hellenistic period¹⁷ and reproduce the Pentateuchal claim to authority via Mosaic revelation, and, perhaps, Deuteronomy’s apparent intention to supersede the authority of the earlier texts.¹⁸ Both the Temple Scroll and Jubilees are harmonizing works and demonstrate a preoccupation with law. However, while literarily dependent on Pentateuchal texts, they claim authority not through as a secondary product of exegesis of a prior authoritative text, but rather their assertion of their own, independent revelation.¹⁹

Ezra and Nehemiah also provide evidence for Halachic interpretation, explicitly presented as textual exegesis, embedded within the narrative of the books. This may be the earliest evidence presenting Halacha as both exegetical and authoritative, drawing authority from the text that is interpreted.²⁰ The condemnation of intermarriage is drawn from Deut 7:1-6 analogizing “the peoples of the land” (Ez 9:1) to those specific groups which no longer exist, and the commandments are justified via a harmonization of Pentateuchal accounts of the Theophany at Sinai, rather than the D/E Horeb.²¹

There are many sources for Halacha among the Qumran texts, including the Community Rule (1QS being the most complete), The Damascus Document (CD),²² and 4QMMT. The justification for the separation of the Yachad from the broader population and their particular halacha is found in the exhortation of CD and the opening prologue present in some versions of the Community Rule. From we can see that the Halacha of the Yachad (“community,” the Qumran group’s term for themselves) is a revisionist position, supporting their radical separation from the broader Jewish community, and their rejection of the temple cult which was so central for Jewish life during this period.²³ Jason Staples presents a corrective to previous scholarship, situating their beliefs in the context of an eschatological hope for the reconstitution of greater, Davidic Israel.²⁴ However unnoted by Staples is their communal orientation as the “remnant” (CD III, 12-13)²⁵ which complicates how this restoration is understood. For the Yachad the period of wrath has not ended with the end of the exile (I, 5-12) and the covenant is (at least during this period) reserved for the righteous who follow the sect’s interpretation of the Torah (III, 13-VI, 12). Additionally, parts of their Halacha are revisionist, but others may be a rejection of (proto?)-Pharisaic revisionism.²⁶

It is also clear from the numerous scriptural citations that this position is, in their eyes, justified by both the Mosaic Torah and the words of the prophets. However, their library of authoritative texts included other texts such as Jubilees.²⁷ Their halacha is justified by citation of prior texts, with 4QMMT, demonstrating the density of citation through its constant repetition of כתוב (“it is written”). The concern of much of 4QMMT is purity law, with the Yachad excoriating the Jerusalem Priesthood for laxity which invalidates the holiness of the cult.²⁸ They also show a preoccupation with the holiness of the Israelite people, of the “holy seed” of Abraham and their separation from the nations,²⁹ which mirrors the concerns not only of both the Temple Scroll and Jubilees,³⁰ but also that of Ezra and Nehemiah. Ezra 9-10 eliminates the possibility of intermarriage, which is a violation of the “holy seed” of Israel (9:2). This position is accentuated in Jubilees, where anyone who is not circumcised on the eighth day:

…does not belong to the children of the covenant that the Lord made with Abraham because he is among the children of destruction. There is therefore no sign on him that he belongs to the Lord because he is ordained for destruction, annihilation from the earth, and eradication from the earth (15:26).³¹

Jubilees 30 takes this a step further: any sexual contact between Israel and the nations is an abomination and defilement:

If there is a man in Israel who wishes to give his daughter or his sister to any man who is Gentile, he is to surely die. He is to be struck with stones because he has committed an outrage in Israel. As for the woman, she is to be burned with fire because she has defiled the name of her father’s house. Let her be eliminated from Israel (30:7).³²

This paradigm is taken up by the Damascus Document, which also extends it, assuming that the prophetic passage following the commandment of circumcision, in which Israel will disobey this commandment, become “like the gentiles” and be given over to wrath (34) describes their present (CD III, 11-IV, 15).³³ This framework of ultimate separation is likewise reflected in 4QMMT (section B):

75 And regarding the practice of zenut among the people, despite their being s[ons of the holy

76 seed of whom it is written Israel is holy, and regarding his an[imal that is pur[e

77 it is written that it shall not mate with another species, and regarding his clothes [it is written

78 they shall not be made of mixed kinds, and he shall not sow his field and [his vineyard With mixed seeds

79 Because they are holy, and the sons of Aaron are m[ost holy

80 but you know that some of the priests and [the people mix themselves

81 [and they] unite with them, and pollute the [holy] seed [and also]

82 their [seed] with the zonot. Since the sons of Aharon are the holiest of the holy³⁴

This halachic position is opposed to zenut, a class of sexual impropriety that includes illicit marriage. The authors of this text consider the violation to be analogous to the violation of the laws in Lev 19:19, which prohibit mixing of different kinds, requiring the proper separation between them. Christine Hayes makes a strong case that 4QMMT is, in fact, arguing not solely about intermarriage between priests and lay Israelites, nor between Jews and Gentiles, but rather about the definition of intermarriage: the problem here is marriage between genealogical Jews and converts.³⁵ For other communities a convert becomes a Jew, but for the Yachad this is impossible. While the ger (גר, stranger or resident alien in biblical Hebrew, often proselyte in post-Biblical) is in view in CD 14:3-6, they are not part of the divisions of Priests, Levites and “Israel.” The implication is that this is a permanent division, with lines that cannot be crossed, in much the same way a Levite or Israelite can never change the fact that they are not of the line of Aaron, and thus ineligible for the priesthood.³⁶ While priests are mentioned in the quoted portion and line 80, they are not exclusively in view, and the grammatical argument Hayes presents is strong, that the entire second part of the passage is oriented toward הזונות (hazonot, the feminine plural “objects of zenut”) in line 82, who defile both the holy seed of Israel and the most holy seed of Aaron. This is an extreme revision of even the position of Ezra/Nehemiah, and possibly a response to the Hasmonean policy which led to the forced conversion of the Idumaeans.³⁷ It is worth emphasizing that, much like the allegorical Animal Apocalypse of 1 Enoch, the Yachad appear to believe that Israel and the nations are, in some sense, different species. This is in stark contrast with not only the books of Ruth and Judith, but also the earliest Rabbinic material which presuppose conversion as normatively possible.

The Qumran Halacha prioritizes the Priestly material, in keeping with the emphasis on the maintenance of the boundary between the sacred and the profane. Unlike Deuteronomy they are extremely concerned with the proper distinction between the Priests and the Levites.³⁸ In their eyes, Jerusalem itself is “the camp” of Leviticus and Numbers, and thus subject to the same regulations. This has serious implications for the maintenance of sanctity in both the Temple and the wider city. Thus, 4QMMT excoriates its addressees for not performing slaughter and disposing of ashes and hides from the temple according to this understanding (B 26-32) and asserting dogs should be forbidden from the city (B 58-60).

The Damascus Document derides those who “sought/interpreted בחלקות (b’chalakot, “in/with ease/smoothness”) and chose illusions” (I, 18), and other documents such as the Hodayot (1QHa) and Pesher Nahum (4QpNah) identify some of those who reject their interpretations as דורשי החלקות (Dorshei Hachalakot).³⁹ This term is conventionally translated as “seekers of smooth things,” following Isa. 30:10. This interpretation is contested. A compelling case is made for this epithet being a specific indictment of interpretive methods, following several other scholars, by Michal Bar-Asher Siegal.⁴⁰ The root דרש (to seek, the root of midrash, the rabbinic method of “seeking” the meaning of scripture through expansive exegesis) has interpretative implications, and this, coupled with a pun on הלכות (halachot, legal rulings) supports this reading. This reveals much about the self-perception of this group, as their polemic against their opponents is couched in terms of the correctness of their own interpretation of the Mosaic law, against those whose is “empty” or “smooth,” implying a lack of both depth and rigour. The connection between this term and the Pharisaic tradition is also convincing.⁴¹ This has implications which extend into the New Testament, and the Tannaitic Rabbinic writings.

From here we can turn to the legal disputes in the New Testament. These are polemics and should be read as such rather than as authentic reportage of actual events. Rather, they should be read as the literary products of a particular sectarian community.⁴² Likewise, while many interpretations of the legal debates in the Synoptic Gospels are predicated on their setting in 1^st Century Judaea, the Gospels may well be, at least in part, products of the Diaspora.⁴³ Mark presents invectives against the “tradition of the elders” (7:3), which are the “words of men” and thus not of divine origin (7:8). Likewise, the Matthean Sermon on Mount presents Jesus encouraging a more rigorous observance of the law than what “you have heard said” (Matt 5:21-43, my emphasis); with the ban on divorce mirroring sectarian Halacha (CD IV, 20-V, 2).⁴⁴ Matthew Thiessen has made a strong case that Paul shares the perspective of Jubilees that gentile circumcision is ineffective and that, consequently, conversion is impossible based on the requirement for legitimate circumcision to occur precisely eight days after birth.⁴⁵ Pauline theology, which undergirds Luke/Acts, appears predicated on a metaphysical difference between Israel and the nations, similar to (but distinct from) the Qumran postion.⁴⁶

The Matthean woes of the Scribes and Pharisees are an indictment of laxity, the guidance of “blind fools” who “sit on Moses’ seat,” leading people away from the Kingdom, rather than into it (Matt 23:23-33, cf. Luke 6:39). The soteriological efficacy of Pharisaic conversion is also questioned here (23:15), though what underlies this statement, be it the possibility of conversation or simply the insufficiency of Pharisaic teaching is uncertain.⁴⁷ These highly invective polemics also resemble those of the Yachad, in terms of strictures in response to laxity, claiming many are being led astray from the proper observance of the Law, and both communities emphasise the necessity of repentance that the purported eschatological moment demands for the realization of redemption.⁴⁸ However, while the woes are primarily general indictments, the third woe is halachic:⁴⁹

Woe to you, blind guides who say, ‘Whoever swears by the sanctuary is bound by nothing, but whoever swears by the gold of the sanctuary is bound by the oath.’ You blind fools! For which is greater, the gold or the sanctuary that has made the gold sacred? And you say, ‘Whoever swears by the altar is bound by nothing, but whoever swears by the gift that is on the altar is bound by the oath.’ How blind you are! For which is greater, the gift or the altar that makes the gift sacred? (Matt 23:16-9).

This dispute appears to recall the earlier dispute on the same issue presented in Mk 7:9-13/Matt 15:1-6. The earlier Markan text reads:

For Moses said, ‘Honor your father and your mother,’ and, ‘Whoever speaks evil of father or mother must surely die.’ But you say that if anyone tells father or mother, ‘Whatever support you might have had from me is Corban’ (that is, an offering), then you no longer permit doing anything for a father or mother, thus nullifying the word of God through your tradition that you have handed on (7:10-3).

This passage has generated significant recent study by Adela Yarbro Collins, Moshe Benovitz, and EP Sanders.⁵⁰ Benovitz’s analysis is important in contextualizing the dispute in the development of the legal treatment of oaths, but his conclusions have been criticised. Collins and Furstenberg dispute his conclusion that Jesus’ position as opposed to prohibitive vows altogether, with Collins suggesting that, instead, Jesus is advocating a return to the “plain meaning” of scripture, and Furstenberg suggesting this under-reads the justification for the position give in-text, which are rather “a distorted notion of sanctity, which vests those objects consecrated by humans with greater authority than the temple itself.”⁵¹ Despite these criticisms, both Collins and Furstenberg largely accept Benovitz’s conclusion that this tradition is polemicising against an actually historical Pharisaic position. However, in the Mishnah, even the strictest position on these oaths, rejected in the Mishnah, is more liberal than what is presented here. Reading this passage as reflecting a historical dispute requires assuming the liberal tradition of the Mishnah and the severe tradition represented here represent the same original idea. This could be the case, if the position polemicised against were not attested anywhere else, but Sanders presents an interesting alternative, referring to Philo’s Hypothetica:⁵²

Jesus’ criticism could be much more specifically applied to Philo’s interpretation of vows and their release than to the Pharisees’. Philo explicitly allows a man to forbid his wife from making use of her property by dedicating it, and he extends the point to include a man’s gift to his son. The case in Mark 7 is simply the reverse: property which parents expected from their son. It is somewhat doubtful that Pharisees held that qorban could function as a weapon in intra-family animosity, since in [Mishnah] Nedarim 3.2 both Houses [i.e. those of Hillel and Shammai] rule that the man’s declaration qorban over the figs does not apply to members of his family.⁵³

I would like to suggest a third option: that a tradition initially polemicizing against the Pharisaic position in its transmission was corrupted by someone who mistook the position of Philo for an elaboration on the position of the Pharisees and conflated the two, thereby producing a text which ascribes the legal position of the former to the later. If this were the case it would weigh against at least the form of these traditions in Matthew and Mark representing the social reality of Judaea.⁵⁴

1. The exceptions are largely restricted to isolated parts of the Pentateuch, 2 Kings 22:7-23:25, the parallel in Chronicles, and the post-Exilic Ezra and Nehemiah.

2. A.I. Baumgarten, The Flourishing of Jewish Sects in the Maccabean Era: An Interpretation (Leiden: Brill, 1997) 114-136, cf. Yonatan Adler, The Origins of Judaism: An Archaeological-Historical Reappraisal, The Anchor Yale Reference Library, (New Haven and London: Yale University Press, 2022) 218-21. See also Adler’s discussion of Greek legal culture, 216-36. Cf. the movement from “tradition” to “text” described in Aharon Shemesh, Halakhah in the making : the development of Jewish law from Qumran to the rabbis, The Taubman lectures in Jewish studies, (Berkeley: University of California Press, 2009), 95-98, 102-6, 136-9.

3. Adler, Origins of Judaism, passim. See my previous review. Additional complication to the Hasmonean Promulgation Hypothesis proposed by Adler is the very limited popular support for the Hasmoneans described by Seth Schwartz, Imperialism and Jewish society, 200 B.C.E. to 640 C.E, Jews, Christians, and Muslims from the ancient to the modern world, (Princeton, N.J.: Princeton University Press, 2001), 33.

4. While this essay primarily concerns literature, the presence of oral traditions should also be noted. Treatment of this, even on a methodological level, is however far beyond the scope of this paper.

5. Benjamin D. Sommer, Revelation and Authority : Sinai in Jewish Scripture and Tradition, The Anchor Yale Bible reference library, (New Haven and London: Yale University Press, 2015), 162-4 describes halachic glosses in Exodus, and a clear insertion in Deuteronomy (5:5, cf. 19-23), though the latter is theological (and contradicts the surrounding text), ibid. 70-1.

6. This, of course, for some communities includes books like Enoch, Jubilees, and the Temple Scroll, see below. For now-canonical Biblical texts, Ezekiel can be read in part as a commentary on the priestly literature (including H), see Yehezkel Kaufmann, The Religion of Israel, From its Beginnings to the Babylonian Exile, trans. Moshe Greenberg (Chicago: University of Chicago Press, 1960), 433). Cf. b Chagigah 31a:12 regarding Chanina ben Chizkayah’s work to harmonize the book with Torah, presented as rescuing the book from Rabbinic suppression. Prophetic commentary affecting the text of the Pentateuch is also proposed by Israel Knohl, The Sanctuary of Silence : the Priestly Torah and the Holiness School (Minneapolis: Fortress Press, 1995), 199-224, though this is a highly contestable claim. It does however place him, alongside Sommer, firmly in the school of Kaufmann.

7. This may be a novel position but should not be as radical as it first appears. It is the natural conclusion of various observations that have been made about the redaction, canonization and standardization of Biblical texts extending well into the Hasmonean period.

8. As read by both Irmtraud Fischer, "The Book of Ruth as Exegetical Literature," European Judaism 40, no. 2 (September 2007), EBSCOhost. and, to a certain extent, André Lacocque, Ruth : a continental commentary, trans. KC Hanson (Minneapolis: Fortress Press, 2004), 97-107, 109-34. . It is hard to read Ruth otherwise, as the narrative is oriented around the resolution of the legal issue of inheritance and marriage (4:1-9).

9. Cf. 2 Macc 1:31-2:18, but also 12:38 in which Judah and his men “purify themselves according to the custom,” but also 10:1-9, including the non-Pentateuchal “festival of lights” absent from 1 Macc.

10. Cf. 4QMMT B 3–7; and Vered Noam, "The Emergence of Rabbinic Culture from the Perspective of Qumran," Journal of Ancient Judaism 6, no. 2 (14 May. 2015 2015), https://doi.org/10.30965/21967954-00602006, https://brill.com/view/journals/jaj/6/2/article-p253_6.xml. 263-5.

11. “The sects” here being the very broadly defined precursors to the Sadducean and Pharisaic schools, with the Qumran sectarians splitting off from the former, Ibid. 271. See also Shemesh, Halakhah in the making, 74-95.

12. There is an interesting description of Qumranic and Rabbinic citation of a seemly non-existent biblical verse in Noam, "Emergence." 265. There is also evidence of the persistence of “non-Mosaic Judaism” into the Second Temple Period, though the extent and contents of this are disputed. See John J. Collins, The Invention of Judaism: Torah and Jewish Identity from Deuteronomy to Paul (University of California Press, 2017), 62-79. While the use of the word “Torah” in the Mishna and Tosefta is often expansive, the explicit doctrine of the Oral Torah is not attested in the Mishnah or Tosefta other than implication in texts like m Avot. 1:1. Scepticism is justified, as the doctrine isn’t fully articulated in the Yerushalmi, and only firmly coalesces in the Gemara of the Bavli, see b Shabbat 31a, b Kiddushin 66a, b Yoma 28b etc. The term is also absent from the early Halachic Midrash, with alternative justification for Rabbinic interpretation, where Torah is seen as “filled” by the production of Midrash, see citation of Sifre Devarim 48, 355 in Michal Bar-Asher Siegal, Jewish-Christian Dialogues on Scripture in Late Antiquity: Heretic Narratives of the Babylonian Talmud (Cambridge: Cambridge University Press, 2019) 53-4.

13. See citations of Josephus, Philo, and the NT, Qumran and Rabbinic texts in Shaye Cohen, From the Maccabees to the Mishnah, 3rd ed. (Louisville, KY: Westminster John Knox Press, 2014), 123-171. Cf. Baumgarten, Jewish Sects, 5-33.

14. At least, none that definitively represent the Priestly-aristocratic group reflected in late-2^nd Temple texts, particularly the NT. The Qumran Yachad appears to be a splinter Sadducean sect (as per the conflation of the two in the Mishnah and their valorisation of Tzadok), but if so, they appear to be radical separatists. Cf. Noam, "Emergence." 260-1 which reads these texts as indicative of mainstream Sadducean Halacha. Which I can see the case for TS and Jubilees, both being “pre-Sectarian” that this term is used by Noam here appears to indicate a distinction (between Sectarian and non/pre-Sectarian halachot) which requires caution. See the conclusions regarding this in Shemesh, Halakhah in the making, 124-40.

15. The only first-hand literature by any self-professed Pharisee is that of Paul, but it is safe to say that post-conversion he cannot be considered representative, and either way gives little in the way of legal exegesis. Josephus also had experience of the Pharisees, living for a time as one, see Life 1-5. The early Rabbinic literature also requires caution, see below.

16. This essay will eschew the question of the law in the diaspora, for the sake of brevity. There is a fine treatment in Collins, Invention of Judaism, 134-58, though this probably needs updating.

17. See summary and evaluation of current scholarship in ibid. 101-3.

18. For TS, see ibid. 100-1 and Shemesh, Halakhah in the making, 22-4. For Deuteronomy as a prototype for superseding earlier codes, see Sommer, Revelation and Authority, 65, 226.

19. Cf. 2 Esdras/4 Ezra 14:44-8.

20. Dating of Ezra and Nehemiah is contested, as is the composite nature of the texts. A level of agnosticism is thus advisable. See Cohen, Maccabees , 8, 136-9; cf. Jacob Martin Myers, Ezra. Nehemiah, 1st ed., The Anchor Bible, (Garden City, N.Y.: Doubleday, 1965), xxxviii-lii, lxvii-lxx;, ccf. Jason A. Staples, The Idea of Israel in Second Temple Judaism: A New Theory of People, Exile, and Israelite Identity (Cambridge: Cambridge University Press, 2021), 142-7, esp n8-9, 10, 16, 19; ccf. Adler, Origins of Judaism, 10-11, 190-5; ccf. Israel Finkelstein, Hasmonean Realities Behind Ezra, Nehemiah, and Chronicles : Archaeological and Historical Perspectives, Ancient Israel and its literature ; Number 34, (Atlanta, Georgia: SBL Press, 2018), 3-81.

21. Sommer, Revelation and Authority. 224-5. Cf. m Yad. 4.4, T. Yad 2.8.

22. CD being the designation for the full document as per the attestation from the Cairo Geniza. The Qumran attestation is highly fragmentary, and thus column and line citation are generally easier from CD. Cf. Rom 9:27-9. If anyone has any good leads on how this ended up being copied for a thousand years before winding up in the Cairo Geniza, please let me know.

23. See citations of CD and 1QS in Shemesh, Halakhah in the making, 73.

24. Staples, Idea of Israel, 263.

25. See also the elaboration of this division, judgement, smelting and purification of the righteous in contradistinction to the wicked in CDb XIX, 13-XX, 13; and Shemesh, Halakhah in the making, 40-5.

26. Vered Noam, "Pharisaic Halakha as Emerging from 4QMMT," in The Pharisees, ed. Joseph Sievers and Amy-Jill Levine (Grand Rapids: Eerdmans, 2021), 52-5.

27. see CD XVI, 2-4; 4Q271 4 II, 5, etc. See also Shemesh, Halakhah in the making, 25-6. The Temple Scroll may also be the source of some halakhot, see ibid. 131-3.

28. An additional point of variance is the calendar also reflected also in Jubilees. However, for the sake of brevity and calendrical issue being rather tedious I will not examine this here.

29. 4QMMT, 4Q396 75-82 i. See also Shemesh, Halakhah in the making, 29-32.

30. As the vast majority of Jubilees only survives in its Medieval Ge’ez translation, the contents of the book being secure as representing the Second Temple period composition that underlies it can be seriously questioned, see Elena Dugan, "On Late Ancient Readers of 1 Enoch: Suspected, Suspicious, and Supposed," in Above, Below, Before, and After: Studies in Judaism and Christianity in Conversation with Martha Himmelfarb, ed. Annette Yoshiko Reed, David Frankfurter, and Ra'anan Boustan (Tübingen: Mohr Siebeck, 2023), 413-17. As this material is attested elsewhere, as described above and in the Testament of Levi, see Christine Elizabeth Hayes, Gentile impurities and Jewish identities : intermarriage and conversion from the Bible to the Talmud (Oxford ; New York: Oxford University Press, 2002), 72-83, 90-1. we can be reasonably certain that this material, or something so similar that these issues do not affect it were present in the material used by the Yachad.

31. All translations from Michael Goff, in The Jewish Annotated Apocrypha, ed. Jonathan Klawans and Lawrence M. Wills (Oxford: Oxford University Press, 2020).

32. See the discussion in Hayes, Gentile impurities, 73-81.

33. Compare the continual references to Belial to Jub 15:33, and 1:20.

הנעסה – to those familiar with only biblical Hebrew this may appear strange, but is a fem. niphal of עש״ה with the שׂ rendered as ס to distinguish its pronunciation, a post-biblical orthographical innovation found at Qumran. While the word that follows is the concrete noun זונות, as in l82, the verb here to my mind makes it clear that a practice is being condemned, thus the modification to an abstract form in this line makes more sense to me. See Elisha Qimron and John Strugnell, Qumrân cave 4. V, Miqṣat Maʻaśe ha-Torah, Discoveries in the Judaean desert; 10, (Oxford, New York: Clarendon Press ; Oxford University Press, 1994), 55, 69, 77.

34. Translation my own with reference to that of Qimron and Strugnell. The reconstructed text reads:

ועל הזונות הנעסה בתוך העם והמה ב[ני זרע

קדש משכתוב קודש ישראל ועל בה[מתו הטהור]ה

כתוב שלוא לרבעה כלאים ועל לבוש[ו כתוב שלוא

יהיה שעטנז ושלוא לזרוע שדו וכ[רמו כלאים

ב]גלל שהמה קדושים ובני אהרון ק[דושי קדושים

וא]תם יודעים שמקצת הכהנים ו[העם מתערבים]

והם ]מתוככים ומטמאי[ם ]את זרע[ הקדוש ואף]

את [זרע]ם עם הזונות כ[י לבני אהרון קדושי קדושים

Hi-res: https://www.deadseascrolls.org.il/explore-the-archive/image/B-370925

35. Hayes, Gentile impurities, 82-9.

36. The parallel and stricter version of this in 1QS II, 19-23 makes no use of the term גר. Philip R Davies considers גר here to mean proselyte, but specifically a proselyte to the sect, not to Judaism, i.e. an “outsider” Jew entering into the sect’s new covenant, and considers 1QS to represent a kind of “sect within a sect” that has broken away from the community of CD. "The 'Damascus' Sect and Judaism," in Pursuing the text: studies in honor of Ben Zion Wacholder on the occasion of his seventieth birthday, ed. John C. Reeves, John Kampen, and Ben Zion Wacholder, Journal for the study of the Old Testament. Supplement series (Sheffield: Sheffield Academic Press, 1994), 70-1, 74-5. Acceptance of this reading would only require a slight adjustment of the thesis I am extrapolating from Hayes.

37. As per the account of the controversy regarding this in Matthew Thiessen, Contesting conversion : genealogy, circumcision, and identity in ancient Judaism and Christianity (Oxford ; New York: Oxford University Press, 2011), 87–110.

38. The references to this separation are numerous, a selection includes 1QS I, 18-26, II, 19-23; 4Q256 II, 5-6; 4Q266 2, 4Q269 10-11. This presents a tripartite model of Israel, the levites (levi’im) and priestly sons of Aaron (kohanim), which is worth comparing to binary division in the messianic passage in CDa VII:12 / CDb XIX:21. Deuteronomy’s treatment of this division, or rather the book’s non-adherence to it, is so obvious that it can be recognized even by Chareidi Yeshiva students.

39. 1QH^a hymn 12, 4QpNah 3-4 I, 6-9; II, 1-2; III, 6-7.

40. Bar-Asher Siegal, Heretic Narratives, 48-51.

41. Ibid., 48-50; Noam, "Pharisaic Halakha as Emerging from 4QMMT." 50-2, Shemesh, Halakhah in the making, 130.

42. See E. P. Sanders, Jewish Law from Jesus to the Mishnah: Five Studies (1517 Media, 2016), 1-4.

43. Ibid. couches this as “some or all.” Isaac W. Oliver, Torah praxis after 70 CE : reading Matthew and Luke-Acts as Jewish texts, Wissenschaftliche Untersuchungen zum Neuen Testament. 2. Reihe, 355, (Tübingen, Germany: Mohr Siebeck, 2013), 444-51, concludes that Luke is a product of the Diaspora, but is more sympathetic to a Palestinian origin for Matthew. However, he likewise says that the diaspora is the milieu where “some of the synoptic gospels probably reached their final shape” (157). The transmission of the Gospels primarily taking place outside of Judaea should allow for a more emphatic conclusion than this, as should their being composed in Greek, in which literacy to the degree required to compose literary works was an extreme rarity in first Century Judaea, see Michael Owen Wise, Language and Literacy in Roman Judaea: A Study of the Bar Kokhba Documents, Anchor Yale Bible Reference Library, (Yale University Press, 2015), 331-45. In my eyes, this makes the probability for their composition in the diaspora far more likely, where Greek literacy was significantly more common. Even if this were not the case, their being written in Greek clearly indicates something regarding the ideal audience of the texts. The audience, if Judaean, would be a tiny percentage of the administrative elite, but if outside Judaea it would be most of the population – both Jews and the broader population of the wider Eastern Mediterranean.

44. See the discussion in Shemesh, Halakhah in the making, 114-9, 124-6, cf. the analysis in Phillip Sigal, Halakah of Jesus of Nazareth According to the Gospel of Matthew (Atlanta, GA: Society of Biblical Literature, 2007), 105-144. Shemesh’s explication of both the reasoning behind this halacha and the way it is explicated (by way of torah narrative as well as the law codes, in a manner shared by both sources) temper some of Sigal’s analysis here.

45. Jub 15:11–29, Thiessen, Contesting conversion, 67–86, 111–141; Matthew Thiessen, Paul and the Gentile Problem (Oxford University Press, 24 Mar 2016, 2016) passim. See also Paula Fredriksen, "“Circumcision is Nothing”: A Non-Reformation Reading of the Letters of Paul," in Protestant Bible Scholarship: Antisemitism, Philosemitism and Anti-Judaism, ed. Paula Fredriksen et al. (Leiden: Brill, 2022), 79-105.

46. This has been written on extensively in recent years, see the survey and important nuancing of this position in Stephen L. Young, "Ethnic Ethics: Paul's Eschatological Myth of Jewish Sin," New Testament Studies 70, no. 2 (2024), https://doi.org/10.1017/S0028688523000462. 235-248. For the influence of this on Luke/Acts, see Matthew Thiessen, "Gentiles as Impure Animals in the Writings of Early Christ Followers," in Perceiving the other in ancient Judaism and early Christianity, ed. Michal Bar-Asher Siegal and Wolfgang Grünstäudl, Wissenschaftliche Untersuchungen zum Neuen Testament, 394. (Tübingen: Mohr Siebeck, 2017), 23-5, Oliver, Torah praxis, 337-357, 402-17.

47. Oliver, Torah praxis, 407 n20.

48. Matt 23:32-8, cf. CD I, 5-12; XII, 19-XII, 2; 1QS IV, 23-7; 1QpHab I, 1-11.

49. Adela Yarbro Collins, "Polemic Against the Pharisees in Matthew 23," in The Pharisees, ed. Joseph Sievers and Amy-Jill Levine (Grand Rapids: Wm. B. Eerdmans Publishing Co., 2021), 109. The next two woes draw on halachic imagery, but it is unclear if the intent of the rhetoric is to make a halachic point.

50. Ibid. 109-10 addresses this issue, relying heavily on Moshe Benovitz, Kol Nidre: Studies in the Development of Rabbinic Votive Institutions, Second edition. ed., Brown judaic studies; 315, (Atlanta: Brown Judaic Studies, 2020), 16-27. Likewise, Sanders, from Jesus to the Mishnah, 69-78 and Yair Furstenberg, "Jesus against the Laws of the Pharisees: The Legal Woe Sayings and Second Temple Intersectarian Discourse," Journal of Biblical literature 139, no. 4 (2020), https://doi.org/10.15699/jbl.1394.2020.8. 774-7.

51. Collins, "Polemic Against the Pharisees." 110; Furstenberg, "Jesus against the Laws of the Pharisees." 776, and n20.

52. See also the discussion in Benovitz, Kol Nidre: Studies in the Development of Rabbinic Votive Institutions, 33-5.

53. Sanders, from Jesus to the Mishnah, 77. Compare with Benovitz, Kol Nidre: Studies in the Development of Rabbinic Votive Institutions, who writes that “The Pharisees, however, presumably viewed this type of vow … as binding according to Torah law, and even if they had been inclined to agree with Jesus that this type of vow is hypocritical, they would not have considered themselves authorized to declare such vows null and void” 23, and “The Pharisaic halakhah undoubtedly objected to the abuse of this type of vow, but the Pharisees nonetheless viewed it as a valid dedicatory vow, which creates liability for trespass against Temple property.” 33. The gospels are the only primary source that would suggest this, and this position is not even ascribed to Beit Shammai, the primary vehicle for the elaboration of halachic positions the Rabbis’ predecessors held which are no longer supported, as per the concerted undermining of the authority of Rabbi Eliezer, associated with Beit Shammai. For one perspective, see Vered Noam, "Traces of Sectarian Halakhah in the Rabbinic World," in Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls : Proceedings of the Eighth International Symposium of the Orion Center for the Study of the Dead Sea Scrolls and Associated Literature, 7-9 January 2003, ed. Steven Fraade, Aharon Shemesh, and Ruth Clements (Leiden: Brill, 2006), 67-85.

54. Compare with the analysis of rhetorical others and their function in Paula Fredriksen, "The Subject Vanishes: Jews, Heretics, and Martyrs after the Linguistic Turn," Journal of Early Christian Studies 32, no. 2 (2024), https://doi.org/10.1353/earl.2024.a929876. 151-69. It is interesting to note Fredriksen’s revival in 2024 of terminology from a 1998 paper of a “linguistic turn” when such happened in philosophy following Wittgenstein, and in the broader humanities in the 1960s-70s. This is a useful reminder of how behind the ball biblical studies can be.