Berlin Rabbinical Seminary, 1898. R. Dr. David Z. Hoffmann was the rector from 1899-1920 .

The Modern Study of Mishna: Rabbi Dr. David Zvi Hoffmann’s Approach

February 10, 2016IntroductionsDavid Tzvi Hoffmann, First Mishnah, Mishnah

The Midrashic Development and Antiquity of the Oral Torah, and the Source Critical Demonstration of the “First Mishna”

Prof. Michael Chernick

Abstract: Rabbi Dr, David Zvi Hoffman (1843-1921), a pioneering scholar of rabbinic literature and a committed Orthodox Jew, did not shy away from applying academic methods to the study of rabbinic texts. His work on the Mishnah posits an early, uniform, undisputed, and therefore authoritative collection of the Oral Law which he called the First Mishnah.  In the intervening years new critical  methods and approaches have contributed even more convincing insights into the sources, growth, and history of “our” Mishnah. Nevertheless, Hoffman remains an intellectual father of contemporary rabbinic scholarship.

Preface

In an earlier essay, we considered R. Sherira Gaon and his eponymous epistle as an early medieval precursor for critical Talmud study.1 As I noted there, R. Sherira did not produce what today would be considered a reliable history of the Mishnah’s development, but the questions he answered regarding the Mishnah and the issues he raised set the agenda for the historical study of the Mishnah.

Subsequently, for example, Maimonides devoted sections of his introductions to his Mishnah commentary and Mishneh Torah to the question of how the Mishnah developed and gained its position of authority. Some medieval scholars created chronologies of the mishnaic Sages and described their contributions to the Mishnah.2  Leading authorities also wrote works whose main purpose was to explain the guiding principle of mishnaic and talmudic methods, yet along the way discussed the development of the Mishnah.3 It is, however, only in the nineteenth century when the modern academic study of the Mishnah begins.

Academic Study of Mishna: 19th Century Germany
In this essay, we turn to these modern beginnings of academic Rabbinics scholarship, and more specifically, to late nineteenth century Germany, where Rabbi Dr. David Zvi Hoffmann worked out a distinct, Orthodox approach to critical Mishnah study4 that attempted to understand the historical development of the Mishnah from within itself and from rabbinic and non-rabbinic sources related to it. Alongside the work of other nineteenth century Talmudists like Rabbi Dr. Zekharia Frankel, Hoffman’s scholarship laid the groundwork for twentieth century scholarship of the Mishnah. What sets Hoffmann apart from his contemporaries is his attempt to derive the history of the development of the Mishnah not only from references to its composition scattered across other traditional texts, but by carefully examining the work itself, and by “excavating” its layers.

Introduction
The Historical Context of
Hoffman’s Scholarship

Rabbi Dr. David Zvi Hoffmann (1843-1921) was an Orthodox rabbi who studied in Hungary and Germany under Rabbis Moshe Schick and Azriel Hildesheimer, leading rabbinic figures in the nineteenth century Hungarian and German rabbinates.5 In keeping with the nineteenth century German Orthodox Jewish ethos of תורה עם דרך ארץ – understood as “Torah coupled with secular knowledge” – Hoffmann received his doctorate from the University of Tübingen (Germany) in 1871. Eventually, he became the rector of the Rabbinical Seminary of Berlin, an institution founded by his teacher R. Azriel Hildesheimer, that taught both rabbinical and secular subjects.

In the wake of European Jewish Emancipation, a number of Jewish scholars sought to place the study of Judaism on par with the academic study of European cultures by founding a program of study known in German as Wissenschafts des Judentums – the “Science” of Judaism. Many of Wissenschaft’s practitioners wanted to support changes in Jewish life that made it more compatible with a cultured German lifestyle. As a result, the movement was often seen negatively by traditionalists, and academically-trained Orthodox Jews like Hoffmann who did take part in Wissenschafts des Judentums saw it as their job to defend the Jewish tradition.

Academic Studies and the Reform MovementThe historical study of halakhah in particular was a major battlefield in the culture wars between reformers and traditionalists. For those who wanted to justify changes in sensitive and public aspects of Jewish life, like Sabbath observance or synagogue liturgy, the history of halakhah was not merely a dispassionate scholarly pursuit, but a venue in which to pursue change.

Through their research, reformers sought to demonstrate that Jewish practices were neither uniform nor static.6 Many of them did so masterfully. To counter their claims, Hoffmann set out to prove that the original Oral Torah, which according to him was preserved in the Mishnah, was ancient and originally undisputed. He did so in his work on the Mishnah, Die Erste Mischna und die Controversen der Tannaim (later translated into Hebrew under the title המשנה הראשונה ופלוגתא דתנאי; and into English as The First Mishnah and the Disputes of the Tannaim).

Between R. Sherirah and R Hoffman: Demonstrating Source CriticismIn addition to arguing for the antiquity and unity of the Oral Law as represented in the Mishnah, Hoffmann also introduced source criticism to Mishnah study. As we saw in our previous essay, R. Sherira had already claimed that the Mishnah was derived from many sources, yet he did not demonstrate those sources’ existence.

Hoffmann’s claim that there is a “first Mishnah,” a Mishnah of R. Akiva, a Mishnah of R. Meir, and “our Mishnah” did not stray far from R. Sherira’s taxonomy7. Where he went far beyond his predecessors, however, was in his dissection of mishnaic texts and comparing them to their parallels, thereby actually showing the Mishnah to be a layered text derived from a variety of discreet sources.

Part 1
The Antiquity of the Oral Torah:
Hoffmann’s Evidence

Hoffmann used late Second Temple texts to demonstrate that the Pharisees – understood to be the ancestors of the rabbis – knew of and observed an ancient, unwritten body of practices, that is, the Oral Law.  By doing so, Hoffmann approximated modern standards of historiography that also use external sources to test historical facts. Notwithstanding his Orthodoxy, in this way Hoffman broke with the gaonic mode of reconstructing the history of Oral Torah solely from the rabbinic sources themselves.

More specifically, Hoffman refers to the following first century CE sources to attempt to prove that an unwritten law existed:

• Traditions of the fathers – According to Josephus, the Sadducees observed only written laws (Antiquities of the Jews, XIII 10, 6), while the Pharisees observed the unwritten law received as the “traditions of the fathers” (Antiquities, ibid.).

• Traditions of ‘human beings’ –In Matthew 15:2 and Mark 7:2-8, Jesus chastises the Pharisees for following the traditions of human beings, in contradistinction to the commandments of God.8

• Unwritten laws – Philo of Alexandia’s uses a Greek term for “unwritten laws” (αγραφοι νομοι), which suggests that Jews in fact possessed an ancient Oral Law.

Why the Evidence Falls ShortThere are, however, some difficulties with Hoffmann’s evidence. For example, he assumes without question that the rabbis’ idea of Oral Torah is equivalent to Josephus’s and Philo’s “unwritten laws” / “unwritten traditions of the fathers.” This is unlikely. Instead, their “unwritten traditions” were probably customs and observances that grew from the grassroots and achieved widespread acceptance after generations of practice, but were not even claimed to be Sinaitic.9

Regarding Philo’s “unwritten laws”, we know now that this phrase was common in Greek philosophical writings. It meant customary law that had general communal assent and had become a norm. Violation of “unwritten law” could bring shame or sanctions on its violator. In contrast to traditional Jewish notions of Oral Torah, there is nothing divine about this form of unwritten law. Indeed, it is likely that Josephus and Philo would agree that the “unwritten laws” of the Jews, like those of the Greeks, are man-made.

It is clear that the inferences Hoffmann draws from Josephus and Philo are colored by his acceptance of the traditional ideology of Oral Torah.10

Part 2
The Mishnah’s Development from
Midrashic Interpretation of Torah

Hoffmann claimed that the original form of the Oral Torah was not a disembodied collection of laws, rather it was transmitted in the Midrash’s interpretive format.  As a work of biblical interpretation, Midrash’s close proximity to the Written Torah’s verses make them uniquely suited for recalling the laws of the Oral Torah.11

According to Hoffmann, during Hillel’s lifetime (roughly the first century BCE) this method of recalling and transmitting the Oral Torah’s halakhot became too cumbersome. A new form of presenting the Oral Torah now came into being. The laws were extracted from their scriptural prooftexts and given terse formulations. This  allowed  them to be organized around topics. This new form was Mishnah.

Josephus’s ‘Exegetes of the law’ – Evidence?
Once again, Hoffmann attempts to prove his claim using external, non-rabbinic sources. He finds references in Josephus (Antiquities of the Jews, XVII, 6,2; 9, 3) to interpreters of the law. Hoffman argues that these exegetes were the initial midrashic interpreters who linked the Oral Torah traditions to the Written Torah before the Oral Laws were later taught separately.

Here too Hoffman’s argument is problematic. While exegetes of the law would have interpreted the Torah to teach the populace how to observe it, this does not mean that the product of their interpretation was an ancient Midrash which reflected rabbinic halakhah.12

A Gaonic ResponsumHoffmann also bases his theory of the early form of Midrash giving way to Mishnah on a gaonic responsum:

שערי תשובה סימן כ וששאלת על אנשי מעשה דע מימות משה רבינו עד הלל הזקן היו שש מאות סדרי משנה כמו שנתנם הב”ה למשה בסיני ומן הלל ואילך נתמעט ונתמסכן העולם וחלשה כבודה של תורה ולא תקנו מהלל ושמאי אלא ששה סדרים בלבד והם אותם שתקנו היו אנשי משנה לא הראשונים ולא אנשי מעשה שהיו בראשונה…

Shaarei Teshuvah 20 Regarding what you asked about the “Men of Great Acts”: Know that from the time of Moses our Teacher until Hillel the Elder there were six hundred orders of the Mishnah as the Holy Blessed One gave them to Moses at Sinai. From Hillel on, the world was diminished and impoverished and the glory of the Torah weakened. From the time of Hillel and Shammai they established only six mishnaic orders. Those who established them were the “Men of the Mishnah,” not the “Early Sages” nor the “Men of Great Acts” who lived aforetime….

On the basis of this gaonic view, which also appears in Seder Tannaim v`Amoraim (Kahana edition, p. 8), Hoffmann claimed that the transition from Midrash to Mishnah took place during the generation after Shammai and Hillel. Though the source never mentions Midrash, Hoffmann takes the number 600 to refer to the halakhot attached “midrashically” to the approximately 600 commandments of the Written Torah.13 This change, according to Hoffman, occurred because accurately transmitting the Oral Torah’s halakhot in midrashic form became impossible.

Once again, Hoffman’s reliance on traditional sources for history is not acceptable by the standards of modern historiography.14 That said, his attempt to show that Mishnah develops out of Midrash and that its beginnings occur in the time of the Houses is interesting and even possible, even if the sources he uses do not actually prove this point. Notably, some twentieth century scholars of rabbinic literature, like Jacob Z. Lauterbach, J. N. Epstein, Chanoch Albeck, and others follow Hoffmann’s general lead, some even in more convincing ways.15

Part 3
“The First Mishnah” Originated
During the Second Temple Period

Hoffmann’s greatest and to some extent, most lasting contribution to critical Mishnah study was his emphasis on the stratified nature of the Mishnah, even if his analyses often fall short of today’s critical standards. Hoffmann calls the earliest stratum of the Mishnah the “first Mishnah,” and he argues that it originated prior to the Second Temple’s destruction.

The Mishna’s Description of the Seder during the Second Temple
Hoffmann points to the Passover Seder as described in the Mishnah as a good example of “first Mishnah” material. To prove this, he analyzes m. Pesahim 10:1-7. We will focus on his discussion of mishnahs 1-5.

ערבי פסחים סמוך למנחה לא יאכל אדם עד שתחשך ואפילו עני שבישראל לא יאכל עד שיסב ולא יפחתו לו מארבע כוסות של יין ואפילו מן התמחוי (פסחים י, א).

On the eve of Passover approaching Minhah time one should not eat until nightfall. Even a poor Israelite should not eat until he reclines [at the Seder]. They should not give him less than four cups of wine, even if it comes from the public kitchen supply (Pesahim 10:1).

Hoffmann claims that this is an ancient halakhah observed during Temple times based on a baraita (a tannaitic text that was not included in the Mishnah) which states:

אפילו אגריפס המלך שהוא רגיל לאכול בתשע שעות – אותו היום לא יאכל עד שתחשך

Even Agrippa the King who regularly ate at the ninth hour of the day (approaching the earliest Minhah time) on that day would not eat until nightfall” (BT, Pesahim 107b).

Since the only Agrippa known for his punctilious observance of the Torah was Agrippa I (10 BCE-44 CE), Hoffmann claims that this undisputed halakhah was sufficiently well known and in force during the early first century CE so that the king could observe it. Thus, the “first Mishnah” is “proven” to have existed before the Temple was destroyed. Of course there are numerous problems with this argument,16 but the basic working method itself is something that could – and would – be put to more critical use by future scholars.17

Part 4
Why there are Tannaitic Arguments
in the Mishnah

Having proposed the existence of an uncontested “first Mishnah,” Hoffmann found it necessary to explain how tannaitic controversies developed. He also had to explain why the disputes of later tannaim did not provide a clue to the approximate date of a mishnah’s creation. For example, if R. Judah and R. Meir (c. 150-180 CE) had a dispute about a halakhic matter, why would it not be reasonable to assume they debated a contemporary issue rather than the meaning of the “first Mishnah”?

Hoffmann explains that there are three causes for late tannaitic debates:

1. Different formulations of the “first Mishnah”;
2. Imperfect transmission of the “first Mishnah”;
3. The late tannaim’s incomplete understanding of ancient terms or halakhot in the “first Mishnah.”

I will examine each cause separately:

1. Late Tannaitic Debate Based on Different
   Formulations of the “First Mishnah”

As an example of a late tannaitic debate based on different formulations of the “first Mishnah,” Hoffmann analyzes m. Eduyyot 1:8:

כרשיני תרומה בית שמאי אומרים שורין ושפין בטהרה ומאכילין בטומאה בית הלל אומרים שורין בטהרה ושפין ומאכילין בטומאה שמאי אומר יאכלו צריד רבי עקיבא אומר כל מעשיהם בטומאה:

Vetches18 that have the status of heave-offering (terumah)19: The House of Shammai says: One must soak and remove their husk in purity, but one may serve them as fodder in impurity.20The House of Hillel says: One must soak them in purity, but one may husk and serve them as fodder in impurity. Shammai says: They may [only] be eaten dry. R. Akiba says: All actions carried out on vetches may be done in impurity.

Without getting into the content of this passage, it is easy to see that it contains (a) a debate between the Houses of Shammai and Hillel, (b) a ruling of early sage, Shammai, himself, and (c) a rejection of all these opinions by R. Akiba, who lived later than all the other cited authorities. Does this not then indicate that there was no uncontested “first Mishnah?”

Different Versions of the “First Mishna”
Basing himself on Tosefta Ma`aser Sheni 2:1, Hoffmann answers that the rulings of the “first Mishnah” were not actually contested, rather the “first Mishnah” was sometimes transmitted in different versions.

כרשינין…של תרומה בית שמיי אומ’ שורין בטהרה ושפין ומאכילין בטומאה ובית הלל אומ’ שורין ושפין בטהרה ומאכילין בטומאה דברי ר’ יהוד’ ר’ מאיר אומר בית שמאי אומר שורין ושפין בטהרה ומאכילין בטומאה ובית הלל אומ’ כל מעשיהן בטומאה אמ’ ר’ יוסי זו משנת ר’ עקיבא….

Vetches with terumah status: The House of Shammai Says: One soaks them in purity and husks and serves them as fodder in a state of impurity. The House of Hillel says: One soaks and husks them in a state of purity and serves them as fodder in impurity. These are the words of R. Judah. R. Meir says: The House of Shammai says: One soaks and husks them in purity and serves them as fodder in impurity. The House of Hillel says: All actions carried out on vetches may be done in impurity. R. Yosi said: This is the Mishnah of R. Akiba….

Hoffmann sees in this Toseftan passage proof, as the Tosefta shows, that the traditions of the Houses about vetches with terumah status were known to R. Judah in one formula and to R. Meir in another. R. Yosi informs us that R. Meir’s tradition was according to R. Akiba’s Mishnah. Therefore, when “our Mishnah” cites R. Akiba as having said, “All actions carried out on vetches may be done in impurity,” he is actually repeating a version of the House of Hillel’s view that he received and accepted as accurate. What appear to be late tannaitic controversies are thus often based on repetitions of a variant of a “first Mishnah” tradition.21

2. Imperfect Transmission of the “First Mishnah”
   and Late Tannaitic Debates

In b. Gittin 85b, the Talmud states that “valid and invalid are sometimes reversed.” That is, sometimes traditions are imperfectly transmitted, saying exactly the opposite of what they were originally intended to say. Hoffmann sees in this form of imperfect transmission of the “first Mishnah” another source of later tannaitic controversies.

As one example, Hoffman points to a section mGittin 5:4:

אפוטרופוס שמינהו אבי יתומים ישבע. מינהו בית דין לא ישבע. אבא שאול אומר חלוף הדברים.

If the father of orphans appoints a guardian he must swear [if a situation requires it]. If a court appoints him, he need not swear. Abba Shaul says the opposite.

The “first Mishnah” clearly dealt with parent and court appointed guardians for orphans. However, the imperfect transmission of the “first Mishnah” resulted in reverse decisions about such guardians. “Our Mishnah” preserves both traditions of what the “first Mishnah” originally said.22

3. Incomplete Understanding of “First Mishnah” Terms and
   Halakhot as Causes for Late Tannaitic Debates

Just as Hoffmann was willing to agree that the “first Mishnah” was transmitted in multiple versions and occasionally imperfectly, he agrees that later tannaitic debates can occur because a “first Mishnah” halakhah or term is no longer fully understood. Therefore, the later tannaim, acting as interpreters of the “first Mishnah” argue about its proper meaning. He finds evidence for this in m. Berakhot 9:4:

הנכנס לכרך מתפלל שתים אחת בכניסתו ואחת ביציאתו בן עזאי אומר ארבע שתים בכניסתו ושתים ביציאתו ונותן הודאה לשעבר וצועק לעתיד לבא:

One who enters a city should pray two prayers, once on entering and once on departing. Ben Azzai says: Four [prayers]. Two when he enters and two when he departs. And he should give thanks for [what has happened] in the past and pray ardently for [what will happen] in the future.

Hoffmann reconstructs what he believes is the “first Mishnah” stratum of this mishnah, as

הנכנס לכרך מתפלל שתים ונותן הודאה לשעבר וצועק לעתיד לבא

One who enters a city should pray two prayers and give thanks for [what happened] in the past and pray ardently for what will occur in the future.

The late tannaitic debate formed around incomplete understanding of the term מתפלל שתים, “pray two, in the “first Mishnah.” The anonymous Sages understood “pray two” as “praying one prayer on entering and praying another on leaving.” Ben Azzai understood “pray two” as praying two prayers when entering the city and two prayers when leaving.

Arguments in the “First Mishnah”

Finally, Hoffmann also ceded that what he called the “first Mishnah” was not a univocal document, but did contain some points of disagreement on legal issues. The above-cited case of the Houses debate about vetches is a good example.

Hoffmann’s view is that the few instances of dispute in the “first Mishnah” are the result of the Houses occasionally using logic (סברא) to determine the correct version of a “first Mishnah” passage. This sometimes led to a debate about the halakhic content of the “correct version.” According to Hoffman this occurred infrequently enough at the outset to produce a generally accurate and undisputed presentation of most of the ancient mishnah traditions.

Conclusion
“All beginnings are hard” (Pesikta Zutrata, Yitro, 19:5). This statement is particularly apt regarding the beginnings of the modern study of the Mishnah. David Zvi Hoffmann understood that the best way to understand the Mishnah’s developmental history was to work mainly from within the text itself. Later scholars concurred with this methodology, 23even while they attempted to move beyond Hoffman’s apologetic stance in their quest to explain, on more impartial terms, how the Mishnah came to be.

___________________

Prof. Rabbi Michael Chernick holds the Deutsch Family Chair in Jewish Jurisprudence and Social Justice at the Hebrew Union College-Jewish Institute of Religion in New York. His area of expertise is the Talmud, and he focuses on early rabbinic legal interpretation of the Bible. Chernick received his doctorate in Rabbinics from the Bernard Revel Graduate School and his semicha from R. Isaac Elchanan Theological Seminary, both affiliates of Yeshiva University. He has written extensively about Jewish law and lore and has lectured on these topics in the United States, Europe, and Israel. He is the author of two Hebrew volumes on rabbinic interpretation, an English language edited volume, Essential Papers on the Talmud, and a book titled A Great Voice That Did Not Cease. He also founded the Summer Jewish Studies Program at Kibbutzim Yahel and Lotan.

1. See my TABS essay, “The Epistle of R. Sherira Gaon: A Point of Departure for the Academic Study of the Mishnah.” 
2. For example R. Abraham Ibn Daud (1110-1180) in his Sefer Hakabbalah and R. Menahem ha-Meiri (1249-1315) in the introduction to his commentary on Avot. 
3. For example, R. Samson of Chinon (1260-1330) in Sefer Keritut or R. Jeshua b. Joseph Halevi (15th century) in Halikhot Olam. 
4. Hoffman is also known for his work that attempted to grapple with questions raised by critical Bible study. A TABS essay surveying Orthodox approaches to Bible criticism briefly makes mention of this work. 
5.  Moshe Schick (1807-1879) is known best for his Talmud novellae known as Hiddushei MaHaRaM Schick. He was a leader of the Hungarian Orthodox community in its successful battle to receive distinct and separate recognition from reform elements in the Hungarian Jewish community. R. Azriel Hildesheimer (1820-1899) is best known as the founder of what many consider to be the first moderrn Orthodox rabbinical seminary. The Rabbinical Seminary of Berlin required those who wished to enter its program to have good secular educations. Its curriculum went beyond Talmud and Codes, accenting also TaNaKh, Hebrew language, Jewish history, and some other secular subjects as well. 
6.  For example, Leopold Zunz’ work on Jewish sermonic material (Hebrew trans.,Haderashot B’Yisrael) showed that weekly vernacular sermons, opposed by 19thcentury traditionalists, had been standard on Shabbat in antiquity. Zunz and other reformers sought the re-establishment of the weekly sermon as part of a reformed liturgy. Similarly, Abraham Geiger in his historical study of Judaism, Urschrift und Uebersetzungen der Bibel, portrayed Judaism, as dedicated to “nothing other than the principle of continual further development in accord with the times, the principle of not being slaves to the letter of the Bible, but rather to witness over and over its spirit and its authentic faith-consciousness.”  His views encouraged changes in the liturgy, the introduction of instrumental music in the synagogue, the abbreviation of the service, and limiting the use of Hebrew in it. 
7. R. Sherira Gaon posited an early undisputed stratum of the Mishnah passed anonymously from generation to generation. According to him, when those traditions and others that had developed were in danger of being lost at the time of the Temple’s destruction, the students of Shammai and Hillel created a new mishnaic stratum to preserve them. Rabbi Akiba collected traditions after the Bar Kokhba debacle. R. Meir’s version of the Akiban traditions was considered best, and it became the next mishnaic stratum. During a period of relative peace, R, Judah Hanasi collected the traditions that were possessed in common by all the batei midrash. Those traditions, with some additions, became our Mishnah. 
8. Although the writings that make up what we now know as the New Testament are outside the library of classical Judaism, they nevertheless serve as a rare view into the beginnings of that Judaism during the first and early second centuries. For an edition that reads the New Testament through Jewish lenses, see Amy-Jill Levine and Marc Zvi Brettler, eds, The Jewish Annotated New Testament (Oxford: Oxford University Press, 2011).  
9. While it is true that according to Josephus, the Pharisees considered their practiceobligatory and the Sadducees did not, it is possible that nevertheless some Sadducees observed a few of these traditions as well. For example, Mark 7:3 states that all Jews observed handwashing before meals. 
10.  John W. Martens, One God, One Law: Philo of Alexandria on the Mosaic and Greco-Roman Law (Leiden: Brill, 2003), chapter 1. 
11.  Hoffman’s theory about Midrash responds to an extent to a question that all scholars of rabbinic literature have tried to deal with, namely, why do both Midrash and Mishnah continue to exist side by side? Logically, it would seem that the more economical Mishnah should have supplanted Midrash?  Hoffman, who did extensive work on Midrash,  suggests in his Zur Einleitung in die halachischen Midraschim that halakhic midrash has lasted because it either preserves or reconstructs how the Oral Law was transmitted in the pre-Mishnaic era. 
12.  Nehemiah 8, which describes Ezra reading the Torah on the first day of the seventh month – that is, Rosh Hashanah – while interpreters helped the populace understand the reading by explaining the text, provides important evidence that contradicts Hoffman’s argument. Specifically, this description of Rosh Hashanah isquite different from the rabbinic version of the Holiday. The same applies to Sukkot, about which Ezra reads on the second day of the assembly. Ezra and his officers inform the Babylonian returnees to collect branches of olive, pine or cypress, myrtle, palms, and other leafy trees to build huts, but there is no mention of the rabbis’ four species, and they are used for building the sukkah, not taken “in hand.” All this suggests that the existence of exegetes of the law does not mean that their interpretations conformed to the “Oral Law” of the halakhic tradition. 
13. That is the 613 commandments the Talmud claims the Torah contains. See BT Makkot 23b.  
14.  For one, this gaonic source contains a blatant exaggeration when it mentions 600 orders of Mishnah, a point that Hoffmann admits. Second, the source does not in fact prove Hoffmann’s point that Midrash was the form for transmitting halakhot. Indeed, historical fact is not central to this source, which seems more interested in extolling the early rabbinic generations’ greatness in learning and bemoaning the later generations’ lack thereof. It is also important to note here that the tally of 613 commandments is an entirely post-mishnaic idea. 
15.  Jacob Z. Lauterbach  Midrash and Mishnah. His reconstruction of why Midrash precedes Mishnah is based on the early teachers being described as Soferim, that is, people who interpret from the Sefer Torah. The term Soferim is rabbinic, and therefore Lauterbach’s reconstruction is less convincing than Hoffman’s.
    N. Epstein explores the origins of Midrash in Introductions to the Literature of the Tannaim. (Heb., pp 502-3). There he derives biblical evidence for the early use of the verb drsh to mean investigation or interpretation of the Torah’s text. He also points to Ezra 7:10 for the usage of this verb as a source for interpretation of the Torah for the purposes of legislating. An example of this appears in Nehemiah 8:13-14. His arguments for early Second Temple origins of Midrash are quite convincing. The contents of that Midrash, however, are not necessarily consonant with rabbinic halakhah.
    Chanokh Albeck in his Mavo L’Mishnah (Introduction to the Mishnah) posits that the nature of the Torah is to speak in generalities that need specifics if the laws are to be practiced. This lead to interpretations that often differed from group to group or among individuals. He cites many examples where the Torah itself, or later books of the TaNaKh, or the Septuaguint interpret the Torah’s text in accordance with what would later be recognized as rabbinic halakhah (pp. 3-14). He views this as a form of Midrash that closely adhered to the Torah’s text. Midrash continued to be a method of deriving law into the tannaitic period (for example, see pp. 44-46). He, too, provides a more convincing approach than Hoffman, though he agrees that Midrash precedes Mishnah. 
16.  Here, Hoffmann’s predisposition to prove that the “first Mishnah” was early is quite apparent. As a matter of fact, the baraita he cites does not actually say that Agrippa did not eat from the ninth hour on. Rather, it states that “he should not eat until nightfall.” The baraita’s point is if Agrippa must break with his normal practice and follow this rule, certainly lesser Israelites would have to do the same. All the relevant manuscript texts of the baraita confirm this understanding of this source. Only one manuscript (Oxford) says that Agrippa “did not eat until nightfall” on Passover eve. What is more, why should we assume that a text describing events that occurred in the first century CE was actually recorded during the first century CE? Consequently, there is no solid proof that m. Pesahim 10:1 is an ancient halakhah with origins in the early Second Temple period. 
17.  In a future essay, we will look at other mishnayot from m. Pesahim 10 to illustrate Hoffman’s method for peeling back the layers of the Mishnah to get at the “first Mishnah.” 
18. A coarse bean usually fed to animals. Sometimes translated as “horse beans.” 
19.  One of the food gifts given to the kohanim. One was forbidden to eat one’s produce without having separated tithes and the heave offering. 
20. If one puts water on produce it becomes susceptible to impurity (Lev 11:38). Therefore, if vetches may possibly be eaten by a kohen, soaking them must be done in purity to maintain their fitness for his consumption. However, vetches are usually used only as fodder. Only in dire straits do human beings eat them. The various arguments in the mishnah revolve around the likelihood of vetches being eaten by akohen, and at what point in preparing them are they more likely to be used as fodder. 
21.  Here Hoffmann sounds quite convincing. Still, it is possible to understand R. Yosi’s statement, “this is the Mishnah of R. Akiba,” in another way. Sometimes, as Hoffmann himself admits, “mishnah” means a ruling. Therefore, R. Yosi may be claiming that “The House of Hillel says: All actions carried out on vetches may be done in impurity” is not in fact a ruling of the House of Hillel, but a teaching of R. Akiba. If so, Hoffmann’s use of this Toseftan passage does not fully prove the existence of variant “first Mishnah” traditions. 
22. Hoffmann may be right that this mishnah includes a poorly transmitted “first Mishnah.” It seems equally possible that the difference in opinion between the anonymous authority in the mishnah and Abba Shaul is a late argument about whether private or institutional appointment of a guardian creates greater or lesser responsibility to swear in court if that becomes necessary. If that is the case we have a late tannaitic debate rather than an imperfectly transmitted “first Mishnah.” 
23.  Abraham Weiss points out that since the Mishnah does not provide us with a description of its methodology or the general principles by which it operates, the only way to arrive at these is by analyzing the text of the Mishnah itself. See his על המשנה (Bar-Orion Press: Ramat Gan, 1969), p. 27. Jacob Neusner and his students have taken a similar approach to understanding the development of particular mishnaic tractates.