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Heresiology in the Third-Century Mishnah: Arguments for Rabbinic Legal Authority and the Complications of a Simple Concept*

Published online by Cambridge University Press:  29 September 2015

Naftali S. Cohn*
Concordia University, Montreal


When members of the early rabbinic group created the Jewish legal text known as the Mishnah in the late second or early third century, the concept of heresy was relatively common in the wider cultural discourse of the Roman world. Christian apologists, among others, frequently employed the Greek term hairesis (“heresy”/“heretic,” originally meaning “school of thought”/“adherent”) as part of their larger projects of drawing boundaries, defining identities, and making an argument for the authority of their own ideas and practices.

Copyright © President and Fellows of Harvard College 2015 

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This article was originally presented at a symposium on “Legal Heterodoxy in Islamic and Jewish History” at the University of California, Berkeley, in April 2012. I am grateful to the conveners, Lena Salaymeh and Noah Greenfield, and to the many participants and audience members, particularly the respondent, Daniel Boyarin, who provided valuable feedback. Thanks also to Steven Fraade and Stuart Miller for reading and commenting on earlier drafts of the article, to Shaye Cohen for conversations that sharpened my argumentation, to Shayna Sheinfeld for bibliographic research assistance, to the anonymous reviewers for pushing me toward important improvements and saving me from many errors, and to Zehava Cohn for always invaluable editorial advice.


1 See esp. Le Boulluec, Alain, La notion d'hérésie dans la littérature grecque, IIe–IIIe siècles (2 vols.; Collection des études augustiniennes, série antiquité 110–11; Paris: Études augustiniennes, 1985)Google Scholar. Outside of the well-known heresiologists, the term can also be found in, for instance, the Coptic Apoc. Pet., 74.22 (thanks to André Gagné for this reference). Heresiology also appears in the Nag Hammadi text Testim. Truth (thanks to Carly Daniel-Hughes for this reference). On the function of early Christian heresiology, see also King, Karen L., What is Gnosticism? (Cambridge: Belknap, 2003) 2054Google Scholar; idem, “Social and Theological Effects of Heresiological Discourse,” in Heresy and Identity in Late Antiquity (ed. Eduard Iricinschi and Holger M. Zellentin; TSAJ 119; Tübingen: Mohr Siebeck, 2008) 28–49; idem, “Which Early Christianity?,” in The Oxford Handbook of Early Christian Studies (ed. Susan Ashbrook Harvey and David G. Hunter; New York: Oxford University Press, 2008) 66–84; Boyarin, Daniel, Border Lines: The Partition of Judaeo-Christianity (Divinations: Rereading Late Ancient Religion; Philadelphia: University of Pennsylvania Press, 2004)CrossRefGoogle Scholar; and Boyarin, Daniel and Burrus, Virginia, “Hybridity as Subversion of Orthodoxy? Jews and Christians in Late Antiquity,” Social Compass 52 (2005) 431–41CrossRefGoogle Scholar. See also Iricinschi, Eduard and Zellentin, Holger M., “Making Selves and Marking Others: Identity and Late Antique Heresiologies,” in Heresy and Identity in Late Antiquity (ed. Iricinschi, Eduard and Zellentin, Holger M.; TSAJ 119; Tübingen: Mohr Siebeck, 2008) 127Google Scholar.

2 Goodman, Martin, “The Function of Minim in Early Rabbinic Judaism,” in Judentum (ed. Schäfer, Peter; vol. 1 of Geschichte—Tradition—Reflexion. Festschrift für Martin Hengel zum 70. Geburtstag; Tübingen: Mohr Siebeck, 1996) 501–10, at 504Google Scholar.

3 Boyarin, Border Lines, 55. The insight that there is a shift in the meaning of hairesis can be found in Le Boulluec, La notion d'hérésie, and in Simon, Marcel, “From Greek Hairesis to Christian Heresy,” in Early Christian Literature and the Classic Intellectual Tradition: In Honorem Robert M. Grant (ed. Schoedel, William R. and Wilken, Robert L.; Théologie historique 54; Paris: Beauchesne, 1979) 101–16Google Scholar. Boyarin also points out that the etymological origin of minim, “types,” resonates with Justin Martyr's use of genistae, on which see Gershenson, Daniel and Quispel, G., “Meristae,” VC 12 (1958) 1926Google Scholar; and Shaye Cohen, J. D., “The Significance of Yavneh: Pharisees, Rabbis, and the End of Jewish Sectarianism,” HUCA 55 (1984) 2753, at 35Google Scholar. Note that for neither the Mishnah's authors nor Christian heresiologists was heresy simply a matter of belief. Note also that my focus in this paper is almost exclusively on the Mishnah rather than contemporaneous Tannaitic texts, parts of which are likely post-mishnaic. By limiting my analysis to the Mishnah, I demonstrate what the Mishnah alone shows, without the evidence that may or may not be relevant to the time the Mishnah was created in the late second or early third century.

4 In Border Lines, Boyarin suggests there is a direct conversation between the Mishnah and the work of Christian heresiologists, though he backtracks in “Rethinking Jewish Christianity: An Argument for Dismantling a Dubious Category (to which is Appended a Correction of my Border Lines),” JQR 99 (2009) 7–36 (see 33–36). Boyarin's arguments, mentioned throughout this article, also appeared earlier in a series of articles on which Border Lines is based.

5 On this way of interpreting rabbinic discourse and for additional rabbinic arguments for authority, see Cohn, Naftali S., The Memory of the Temple and the Making of the Rabbis (Divinations: Rereading Late Ancient Religion; Philadelphia: University of Pennsylvania Press, 2012)Google Scholar, and references to earlier scholarship therein. And see the fundamental argument about the labeling of otherness as an assertion of authority in Boyarin, Border Lines (and earlier articles on which Border Lines is based), and in Fonrobert, Charlotte E., “When Women Walk in the Ways of Their Fathers: On Gendering the Rabbinic Claim for Authority,” Journal of the History of Sexuality 10 (2001) 398415, at 405CrossRefGoogle Scholar. Note that I use “Judaean” and “Israelite” interchangeably here to refer to those called yiśra'el () in the Mishnah, those living or originating in the broader territory of Judaea and following to some degree the traditions stemming from the Hebrew Bible.

6 See Cohn, Memory of the Temple, 17–27.

7 Cf. Cohen, Shaye J. D., “The Place of the Rabbi in Jewish Society of the Second Century,” in The Galilee in Late Antiquity (ed. Levine, Lee I.; New York: Jewish Theological Seminary of America, 1992) 157–73Google Scholar, at 167–68, who argues that the rabbis did not reach out to the “masses” to engage them in the study of the Torah. Cf. also Lapin, Hayim, Rabbis as Romans: The Rabbinic Movement in Palestine, 100–400 CE (New York: Oxford University Press, 2012)CrossRefGoogle Scholar. The rabbis, however, do appear to claim to reach out with respect to observance, if not study. It is significant that those imagined to seek out rabbinic legal rulings are rarely specified as coming from among the rabbinic group. Further, rabbinic law in general is understood as valid for all of Israel. On this, see also Schwartz, Seth, “The Rabbi in Aphrodite's Bath: Palestinian Society and Jewish Identity in the High Roman Empire,” in Being Greek under Rome: Cultural Identity, the Second Sophistic and the Development of Empire (ed. Goldhill, Simon; Cambridge, U.K.: Cambridge University Press, 2001) 335–61CrossRefGoogle Scholar, at 348; and Fonrobert, Charlotte E. and Jaffee, Martin S., “Introduction: The Talmud, Rabbinic Literature, and Jewish Culture,” in The Cambridge Companion to the Talmud and Rabbinic Literature (ed. Fonrobert, Charlotte E. and Jaffee, Martin S.; Cambridge Companions to Religion; New York: Cambridge University Press, 2007) 114CrossRefGoogle Scholar, at 4; Fonrobert makes a similar argument in a draft of a forthcoming article (which I thank her for sharing with me).

8 Goodman, Martin, State and Society in Roman Galilee, A.D. 132–212 (2nd ed.; Parkes-Wiener Series on Jewish Studies; London: Vallentine Mitchell, 2000)Google Scholar showed some time ago that the evidence of the Mishnah itself indicates that most Judaeans did not heed the rabbis. See also Cohen, “Place of the Rabbi,” and Cohn, Memory of the Temple.

9 Two further important categories, to be discussed in detail below, are: minim (heretics) and sectarians. Ḥaverim (), “members” of the fellowship who agree to abide by purity and agricultural rules, appear to be coterminous with the rabbis’ own group.

10 On Samaritans () as very much a part of Israel, see: m. Ber. 7:1, Demay 3:4, Ketub. 3:1, and Nid. 7:3 (cf. Nid. 4:1). For instances of Samaritans not being classed with the Israelites and having distinct ritual practices, see: m. Ber. 8:8, Demay 7:4 (where the Samaritan is similar to the ‘am ha'areṣ; see also m. Demay 3:4), Šev. 8:10 (according to Rabbi Eliezer), and ’Ohal. 17:3. For examples in which the legal status goes in both directions, see: m. Giṭ. 1:5, Nid. 4:1 (where they are legally classed as Israelites but have different ritual practices), and perhaps Ter. 3:9. A slightly different ambiguity exists in m. Qidd. 4:3, where they are Israelites but of doubtful lineal status (likely stemming from myths about their origins). In m. Demay 5:9 and 6:1, the kuti () is a distinct category from both the Israelite and the gentile (, nokhri); and this same tripartite grouping is even more common in toseftan examples. On many of these passages, see Schiffman, Lawrence H., “The Samaritans in Tannaitic Halakhah,” JQR 75 (1985) 323–50CrossRefGoogle Scholar; Cohn, Memory of the Temple (with further bibliography); and Lavee, Moshe, “The Samaritan May Be Included: Another Look at Samaritans in Talmudic Literature,” in Samaritans: Past and Present; Current Studies (ed. Mor, Menachem and Reiterer, Friedrich V.; Berlin: De Gruyter, 2010) 147–73Google Scholar. For normal social interactions, see m. Ber. 7:1 and 8:8, Demay 3:4, 6:1, and 7:4, Šev. 8:10, Šeqal. 1:5, Ned. 3:10, Giṭ. 1:5, ’Ohal. 17:3, and perhaps Demay 5:9, Ter. 3:9, Ketub. 3:1, Qidd. 4:3, Ṭoharot 5:8, and Nid. 4:1, 7:3, and 7:4. Many of these are hypothetical legal cases, but the recurrence of such imagined interactions suggests that the rabbis believed it did occur. Note that the rabbis themselves are never imagined interacting directly with Samaritans.

11 M. Ned. 3:10; the Samaritan's allegiance is to Mt. Gerizim. Nevertheless, he is a Sabbath observer and observes the laws of vows. See also m. Šeqal. 1:5.

12 See especially Miller, Stuart S., Sages and Commoners in Late Antique ’Ereẓ Israel: A Philological Inquiry into Local Traditions in Talmud Yerushalmi (TSAJ 111; Tübingen: Mohr Siebeck, 2006)Google Scholar. And see Sanders, E. P., Judaism: Practice and Belief, 63 BCE–66 CE (Philadelphia: Trinity Press International, 1992)Google Scholar; Meyers, Eric M., “Sanders's ‘Common Judaism’ and the Common Judaism of Material Culture,” in Redefining First-Century Jewish and Christian Identities: Essays in Honor of Ed Parish Sanders (ed. Udoh, Fabien E. et al.; Christianity and Judaism in Antiquity 16; Notre Dame, Ind.: University of Notre Dame Press, 2008) 153–74Google Scholar; and Jürgen Zangenberg, “Common Judaism and the Multidimensional Character of Material Culture,” in Redefining First-Century Jewish and Christian Identities, 175–93.

13 The ‘am ha'areṣ and related mishnaic terms have received important treatments (that list the relevant passages). These include Oppenheimer, Aharon, The ‘Am Ha-aretz: A Study in the Social History of the Jewish People in the Hellenistic-Roman Period (trans. Levine, I. H.; ALGHJ 8; Leiden: Brill, 1977)Google Scholar, on which see, however, Cohen, Shaye J. D., “Review of Aharon Oppenheimer, The ‘Am Ha-aretz: A Study in the Social History of the Jewish People in the Hellenistic-Roman Period,” JBL 97 (1978) 596–97Google Scholar; Stern, Sacha, Jewish Identity in Early Rabbinic Writings (AGJU 23; Leiden: Brill, 1994) 114–20Google Scholar; Haas, Peter, “The Am Ha'Arets as Literary Character,” in From Ancient Israel to Modern Judaism: Intellect in Quest of Understanding; Essays in Honor of Marvin Fox (ed. Neusner, Jacob, Frerichs, Ernest S., and Sarna, Nahum M.; 4 vols.; BJS 159, 173–75; Atlanta: Scholars Press, 1989) 2:139–53Google Scholar; Miller, Sages and Commoners; and idem, “Stepped Pools, Stone Vessels, and Other Identity Markers of ‘Complex Common Judaism,’” JSJ 41 (2010) 214–43. Lee I. Levine suggests that the ‘am ha'areṣ represents the majority of the Jewish population, though his evidence is from the Babylonian Talmud, not the Mishnah (The Rabbinic Class of Roman Palestine in Late Antiquity [Jerusalem: Yad Izhak Ben-Zvi, 1989] 113). On overlap within families, see: m. Demay 6:9, t. Demay 2:17, and t. ‘Avod. Zar. 3 (according to ms Erfurt and Geniza fragment T-S OR. 1080 13.69, but not in the reading of ms Vienna). For other examples of intimate coexistence, see: m. Demay 6:12, Ṭehar. 7:1, 7:2, 7:4, 7:5, 8:1, 8:2, 8:5; and see t. Demay 2:18–19 and 3:8.

14 Instances in which this seems to describe a group: m. Šev. 4:1, 5:9 (parallel in Giṭ. 5:9), 9:1, and Šeqal. 1:2. On intermingling, see m. Šev. 5:9, quoted below.

15 In the Mishnah, see: Šabb. 3:4 (Tiberias), Pesaḥ. 4:8 (Jericho), Menaḥ. 10:8 (Jericho), Makhš. 3:4 (an unnamed town or Mahoza), and perhaps Makhš. 1:6 and Sukkah 3:8 (both Jerusalem). See also m. ‘Eruv. 10:10 on the great assembly of Tiberias. See Miller, Sages and Commoners; idem, “Stepped Pools, Stone Vessels,” 222; and Cohn, Memory of the Temple. Note that I do not include abstract examples or unambiguously temple-era examples of townspeople. For examples in the Tosefta, see Miller, Sages and Commoners.

16 Moshe Simon-Shoshan, “Halachah Lema'aseh: Narrative and Legal Discourse in the Mishnah” (Ph.D. diss., University of Pennsylvania, 2005) 124–26. Cf. m. ‘Eruv. 10:10, however, which implies that the Assembly of Tiberias did change their practice in response to the ruling of Rabban Gamliel and the elders. The rabbinic dispute about what the shift was, however, suggests that this is wishful thinking.

17 On the revisionist view, see especially Goodman, State and Society, and Schwartz, Seth, 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)Google Scholar; and see also Cohn, Memory of the Temple. This position (more accurately, set of positions) is denied by other scholars. The notion in the Mishnah that Rabban Gamliel had some prominence and the later memories of Rabbi Judah the naśi’ having gained even more prominence may suggest (as Levine argues in Rabbinic Class and Cohen argues in “Place of the Rabbi”) that some rabbis did indeed have a modicum of power or influence. See also Fraade, Steven D., “Local Jewish Leadership in Roman Palestine: The Case of the Parnas in Early Rabbinic Sources in Light of Extra-Rabbinic Evidence,” in Halakhah in Light of Epigraphy (ed. Baumgarten, Albert I. et al.; Journal of Ancient Judaism: Supplements Series 3; Göttingen: Vandenhoek & Ruprecht, 2011) 155–73Google Scholar, who argues—based on a passage in the Tosefta and one in Sifre Deut.—that some rabbis in this period did have a position of local leadership as parnas. I suspect that these first traces of actual rabbinic leadership are a slightly post-mishnaic development.

18 See also the additional examples noted above. And see Miller, Sages and Commoners, 177–78 for a similar argument.

19 As noted above, this study focuses almost exclusively on the Mishnah. On the practice aspect of minut, see Kalmin, Richard, “Christians and Heretics in Rabbinic Literature of Late Antiquity,” HTR 87 (1994) 155–69, at 168CrossRefGoogle Scholar. See also Goodman, “The Function of Minim,” 504–5; Schremer, Adiel, Brothers Estranged: Heresy, Christianity, and Jewish Identity in Late Antiquity (New York: Oxford University Press, 2010) 7980Google Scholar; and Grossberg, David M., “Orthopraxy in Tannaitic Literature,” JSJ 41 (2010) 517–61Google Scholar. For important treatments of minim in the Mishnah (usually joined with other rabbinic sources), see especially the works of Kalmin, Goodman, Schremer, and Grossberg just cited, as well as Cohen, “Significance of Yavneh”; Boyarin, Border Lines; Burns, Joshua Ezra, “Essene Sectarianism and Social Differentiation in Judaea after 70 C.E.,” HTR 99 (2006) 247–74CrossRefGoogle Scholar; Miller, Stuart S., “The Minim of Sepphoris Reconsidered,” HTR 86 (1993) 377402CrossRefGoogle Scholar; Schiffman, Lawrence H., “At the Crossroads: Tannaitic Perspectives on the Jewish-Christian Schism,” in Aspects of Judaism in the Greco-Roman Period (ed. Sanders, E. P., Baumgarten, Albert I., and Mendelson, Alan; vol. 2 of Jewish and Christian Self-Definition; Philadelphia: Fortress, 1981) 115–56Google Scholar.; and idem, Who Was a Jew? Rabbinic and Halakhic Perspectives on the Jewish-Christian Schism (Hoboken, N.J.: Ktav, 1985). And cf. Schremer, Adiel, “Thinking about Belonging in Early Rabbinic Literature: Proselytes, Apostates, and ‘Children of Israel,’ Or: Does it Make Sense to Speak of Early Rabbinic Orthodoxy?,” JSJ 43 (2012) 249–75Google Scholar. See also now idem, “Wayward Jews: Minim in Early Rabbinic Literature,” JJS 64 (2013) 242–63, for a comprehensive treatment of the term's usage in all the Tannaitic texts.

20 Goodman, “The Function of Minim,” 505, points out that they are performing the traditional ritual but doing so in a way that is incorrect in the rabbinic view.

21 Blessing people with “may the Good [plural] bless you” is likely understood as connected to the belief in multiple powers in heaven, tied in m. Sanh. 4:5 to heretics. Whether or not this “heresy” stems from a belief, however, the focus of the mishnaic law is not on the belief itself but on the resulting practice.

22 See also the debate by a single min about a practice in m. Yad. 4:8.

23 As noted, the rabbis considered the people of towns to be the object of their teaching and instruction. They were not quite as solicitous of the ‘amme ha'areṣ and sinners, but they did tolerate them and even encourage friendly relations, for instance by allowing women to share implements used in the production of flour “for the ways of peace [i.e., to prevent social conflict]” (m. Šev. 5:9 and m. Giṭ. 5:9). For a brief reference to how the rabbis treated heretics (in reference to the Tosefta), see Burns, “Essene Sectarianism,” 253.

24 This is precisely the way they understood proto-rabbinic legal-ritual authorities to have acted toward sectarians in temple times. See further below. The notion of changes to ritual practice in response to minim takes an even more radical form in the talmudic explanation for why the Ten Commandments are no longer included as part of the Shema (in contrast to m. Tamid 5:1): as a response to heretics. See p. Ber. 1:8 (3c) and b. Ber. 12a.

25 This sense of marginalization is implied even further by the implicit comparison with the Samaritans. Besides the minim, the only other group said to have “gone bad” is the Samaritans (m. Roš Haš. 2:2). The heretics are thus compared to those who are part Israelite, part gentile. A similar comparison is made between the daughter of a Sadducee and a Samaritan woman in m. Nid. 4:1, when that Sadducee daughter “follows in the ways of her fathers.” On this example, see Boyarin, Border Lines, 60–63.

26 Admittedly, this particular passage speaks of minut (heresy) and not minim (heretics) and so may be more concerned with ideas or practices, rather than the potential social consequences of being a heretic. My reading takes the various passages together.

27 Hayes, Christine, “Legal Realism and the Fashioning of Sectarians in Jewish Antiquity,” in Sects and Sectarianism in Jewish History (ed. Stern, Sacha; IJS Studies in Judaica 12; Leiden: Brill, 2011) 119–46CrossRefGoogle Scholar; quotation from 145.

28 Hayes makes a strong case that the rabbinic and the earlier sectarian legal approaches did differ, yet even if this is the historical basis for the rabbinic framing of heresy, I disagree that such difference is explicitly acknowledged in m. Roš Haš. 2:8–9, Yad. 4:6–8, ‘Eruv. 6:2, or Nid. 4:2. Further, most of the examples Hayes quotes are about sectarians and not heretics; on the relationship between the rabbinic construction of heresy and sectarianism (in my view) see below. I do agree strongly with Hayes that the focus on legal opinion forms a common element in the portrayal of heretics—and sectarians (Hayes, “Legal Realism,” 145).

29 On this type of rabbinic intervention, see Cohn, Memory of the Temple, chapter 3. For a similar type of concern regarding the minim, see the parallel in t. Yoma 2:10, where Rabbi Akiva chastises those who ask him whether the high priest should switch the lot “for God” into his right hand, thus making the procedure more complicated. See also t. Parah 3:3 (found in ms Vienna but not in the first printed edition), which has a slightly different verb, “to beat” you. On these, see Schremer, Brothers Estranged, 80.

30 See also the similarly phrased example in Sifra, Nedavah 2:4 (and the seemingly later Sifre Num., Pinḥas 143), which may even imply an exegetical basis to differing opinions on practice.

31 If the verb is to be understood as “mimic the ways or laws of” the minim, then it may also imply that the minim have their own laws ().

32 Those in charge of the ritual, as I suggest in “Rabbis as Jurists: On the Representation of Past and Present Legal Institutions in the Mishnah,” JJS 60 (2009) 245–63, at 255, and in Memory of the Temple, are likely understood to be the temple-era authorities of the Court whom the rabbis construct as their predecessors. Indeed, here this is a matter of concern to the Court. M. Ber. 9:5 is a similar etiological narrative, in which heresy is also a matter of belief with a resulting consequence for ritual practice.

33 In the Tosefta's version of events, sectarians once attempted to cause the proto-rabbis to violate their own views on ritual practice; presumably the same is imagined for the heretics in the Mishnah's version of the story. On disputes in temple times surrounding the calendar and festival observance in relation to the calendar, see esp. VanderKam, James C., Calendars in the Dead Sea Scrolls: Measuring Time (The Literature of the Dead Sea Scrolls; New York: Routledge, 1998)Google Scholar. See also Fraade, Steven D., “Theory, Practice, and Polemic in Ancient Jewish Calendars,” Dine Israel 26–27 (2009–2010) 147–81Google Scholar. In the Mishnah, these disputes are remembered in Menaḥ. 10:3 and in Ḥag. 2:4 (in the latter, this is simply treated as a “view” that is held by some).

34 Cf. Boyarin (Border Lines, 57, 65), who argues that it is specifically matters of doctrine that lie at the heart of rabbinic heresiology. On the connection between the beliefs the Mishnah attributes to heretics and those Josephus attributes to the “sects” (haireseis) of temple times, see further below. Note that the slippage between views on metaphysical matters, what would have fallen under the rubric of “philosophy” at the time (to which the term hairesis was once applied), and views on legal matters may suggest that the categories of law and philosophy were not, for the rabbis, as distinct as one might think.

35 Cohen, “Significance of Yavneh,” esp. 31–36.

36 Goodman, Martin, “Sadducees and Essenes after 70 CE,” in Crossing the Boundaries: Essays in Biblical Interpretation in Honour of Michael D. Goulder (ed. Porter, Stanley E., Joyce, Paul, and Orten, David E.; Biblical Interpretation Series 8; Leiden: Brill, 1994) 347–56Google Scholar; Burns, “Essene Sectarianism”; and Magness, Jodi, “Sectarianism before and after 70 CE,” in Was 70 CE a Watershed in Jewish History? On Jews and Judaism before and after the Destruction of the Second Temple (ed. Schwartz, Daniel R. and Weiss, Zeev; Ancient Judaism, Early Christianity 78; Leiden: Brill, 2012) 6991Google Scholar. References to Sadducees and Pharisees in abstract legal passages add fuel to this debate.

37 Boyarin notes the parallel between these two groups in “On Stoves, Sex, and Slave-Girls: Rabbinic Orthodoxy and the Definition of Jewish Identity,” Hebrew Studies 41 (2000) 169–88, at 171, but goes too far in claiming that they form a single category in the rabbinic texts. See also idem, Border Lines, 66.

38 See also the parallel between the single min, who holds his own view, in m. Yad. 4:8, and the Sadducees in m. Yad. 4:6–7.

39 See this phrase in Boyarin, Border Lines, 65, and see the larger argument in Border Lines, 50, 52–54 (building on the work of Le Boulluec and Simon). This stems from the rise of the concept of heresy and the shifting definition of hairesis, from philosophical school or choice to heresy.

40 Border Lines, 60–63. This is one of the few mishnaic examples that may suggest the existence of those who consider themselves members of a sect in rabbinic times, the “daughters of Sadducees.” Alternatively these women may simply be imagined to be carrying on the traditions of their fathers, but not necessarily Sadducees/sectarians.

41 See Cohn, Memory of the Temple, 47. Even in Yoma 1:3 in the Mishnah, which may suggest measures to ensure that the sectarian view is not followed, it is never said that the high priest is a sectarian (in contrast to t. Yoma 1:8).

42 According to J. Rebecca Lyman, this way of constructing a majority in concord with one's own views stems from an interest in and embrace of notions of universalism in Graeco-Roman philosophy that was taken up in a particular way by Christian apologists (“2002 NAPS Presidential Address: Hellenism and Heresy,” JECS 11 [2003] 209–22). Note that Cohen, “Significance of Yavneh,” and those following in his wake and cited throughout here, appreciates the connection between minim and sectarians and understands that the rabbis applied the label of heretic to those who persisted in a sectarian mindset. I am inverting this, suggesting that the notion of heresy, a product of the times, shaped the way the rabbis understood the sectarians of the past. If there continued to be sectarians in their own day, presumably they understood such contemporary groups precisely in this model.

43 As Shaye Cohen points out, evidence from outside of the Mishnah suggests that debates between sectarians and others in the past did indeed focus on divergent views on traditional practice (“Significance of Yavneh,” 31). The point here is that the rabbis reframed sectarians as heretics and made their divergence of opinion the basis for their being marginalized as heretics. In a similar manner, the rabbis made divergence of legal opinion the basis for the need to marginalize heretics. Dohrmann, Natalie B., in “Law and Imperial Idioms: Rabbinic Legalism in a Roman World,” in Jews, Christians, and the Roman Empire: The Poetics of Power in Late Antiquity (ed. Reed, Annette Yoshiko and Dohrmann, Natalie B.; Jewish Cultures and Contexts; Philadelphia: University of Pennsylvania Press, 2013) 6378Google Scholar, at 67, also notes that the legalism of the sectarians was historically different from the specific legalism of the rabbis (and from the legalism the Mishnah imagines for the sectarians).

44 This was most likely not conscious, but simply an expression of the way they thought about themselves and positioned themselves within society.

45 This point adds nuance to Boyarin's argument in Border Lines, esp. 63 (also in earlier articles that served as the basis for Border Lines), that the rabbis constructed a “catholic Israel.”

46 Cf. Schremer, who claims that the rhetorical move of marginalizing others can only be done by those in a position of power (Brothers Estranged, 70–71). Note that ultimately the argument for authority I am making is very similar to what Hayes suggests in “Legal Realism,” 119.

47 These examples do not use the terminology of heresy, nor is there any terminology to denote orthodoxy or orthopraxy. My argument (building on the work of Daniel Boyarin—see the next note) is that they are applying the concept or the paradigm of heresy and orthodoxy.

48 On the ‘Aqavyah story as heresiology, see Boyarin, Border Lines, 64–65, and see a similar idea in Cohen, “Significance of Yavneh,” 49. I follow Boyarin in treating them as examples of heresiology, even though the terminology does not appear.

49 See m. ’Avot 3:1, Bekh. 3:4, Neg. 1:4 and 5:3, and Nid. 2:6.

50 “Testify” means to state a legal opinion dependent on earlier tradition.

51 This sentence could be part of what ‘Aqavyah said, though it seems more of a gloss here, which in fact goes against the sense of what ‘Aqavyah is saying (that he would not recant on principle).

52 Cf. Hidary, Richard, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud (BJS 353; Providence, R.I.: Brown Judaic Studies, 2010) 275Google Scholar. Note that ‘Aqavyah's explanation to his son in the addendum provides a strong rationale for his “heresy”—he was bound to adhere to received tradition, which for him was the majority view. This undermines the original heresiological impulse of the first part of the narrative, simultaneously rendering the transmission of tradition problematic.

53 The parallel passage in Sifre Deut. 152 appears to quote this mishnah (with the formulaic ). The stress in the mishnaic story is on what he and his colleagues “interpreted” ().

54 On this example, cf. Hidary, Dispute for the Sake of Heaven, 28 and 301–7. While the language, which seems out of place in the Mishnah, may stem from an earlier source (as Hidary suggests), this does not mean the toseftan passage, as is, is the earlier source. Because the parallel passage in t. Sanh. creates a collection of temple ritual narratives scattered in various parts of the Mishnah, it seems to me that the toseftan passage, in its current form at least, is the later text. On the term “elder,” see Cohn, Memory of the Temple, 39–56.

55 Boyarin argues that this character is allied in some way with Jesus, who also rejects this body of tradition in Mark 7 and Matt 15 (Border Lines, 64). Alternatively, perhaps what is imagined for Jesus in those passages is a more widespread phenomenon, to which this passage also attests.

56 On this story, see Kanter, Shamai, Rabban Gamaliel II: The Legal Traditions (BJS 8; Chico, Calif.: Scholars Press, 1980) 107–11Google Scholar; Rubenstein, Jeffrey L., Rabbinic Stories (The Classics of Western Spirituality; New York: Paulist Press, 2002) 8587Google Scholar; Simon-Shoshan, Moshe, Stories of the Law: Narrative Discourse and the Construction of Authority in the Mishnah (New York: Oxford University Press, 2012) 186–93Google Scholar; Fraade, “Theory, Practice, and Polemic,” 173–79; Henshke, David, “R. Joshua's Acceptance of the Authority of Rabban Gamaliel II: A Study of Two Versions of the Same Event,” Tarbiz 76 (2006–2007) 81104Google Scholar [Hebrew]; Walfish, Avraham, “Halakhic Confrontation Dramatized: A Study of Mishnah Rosh Hashanah 2:8–9,” HUCA 79 (2008) 141Google Scholar; and Cohn, “Rabbis as Jurists,” 255.

57 Alternative meanings are suggested by the scholars mentioned in the previous note.

58 These examples are drawn from Hidary, Dispute for the Sake of Heaven.

59 M. Ber. 1:3. And see m. Sukkah 2:7, where the house of Shamai considers practice according to the views of the house of Hillel to be useless (though not heresy). See Richard Hidary, “Tolerance for Diversity of Halakhic Practice in the Talmud” (Ph.D. diss., New York University, 2008), and idem, Dispute for the Sake of Heaven. Hidary shows that other passages (especially in the Tosefta) allow for diversity of practice to some degree (note especially m. Yevam. 1:4!), and so there does not seem to be uniformity on this particular issue. On “pluralism” among the rabbis (in non-mishnaic texts), see also Fraade, Steven D., “Rabbinic Polysemy and Pluralism Revisited: Between Praxis and Thematization,” AJSR 31 (2007) 140CrossRefGoogle Scholar.

60 See m. Ed. 1:6, in which it is stated that “the [words] of the many nullify [the words of the individual].”

61 Fonrobert, Charlotte E., “The Didascalia Apostolorum: A Mishnah for the Disciples of Jesus,” JECS 9 (2001) 483509Google Scholar, esp. 492–93. See also Cohn, Memory of the Temple, 33 and 35. See also the more general comments of Boyarin (Border Lines, 256–57 n. 155).

62 Boyarin, Daniel, “Justin Martyr Invents Judaism,” CH 70 (2001) 427–61Google Scholar; idem, Border Lines; and idem, “Rethinking Jewish Christianity.” And see Goodman, “The Function of Minim,” and Le Boulluec, La notion d'hérésie. See also n. 1 above.

63 See Boyarin, Border Lines, 65.

64 See the relationship framed this way in Boyarin, “Rethinking Jewish Christianity,” 34–35. Note that the rabbis’ approach may not be entirely innovative. If the Qumran sectarians and the authors of the gospels thought of themselves or of Jesus and his followers as a small minority fighting against a false establishment, the concept of heresy was in many ways an extension of that logic. There was indeed an establishment, but it was the establishment that was correct and the small minority that were heretics.

65 The complexity of the social map that included various types of Judaeans and followers of Jesus is well described by Boyarin, Daniel in “Semantic Differences; or ‘Judaism’/‘Christianity,’” in The Ways that Never Parted: Jews and Christians in Late Antiquity and the Early Middle Ages (ed. Becker, Adam H. and Reed, Annette Yoshiko; 2nd ed.; Minneapolis: Fortress, 2007) 6585Google Scholar; idem, Dying for God: Martyrdom and the Making of Christianity and Judaism (Stanford: Stanford University Press, 1999) 8; and idem, Border Lines, esp. 17–18. See also Cohn, Memory of the Temple, 28–29.

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