Page:The Green Bag (1889–1914), Volume 08.pdf/282

 Some Aspects of the Growth ofJewish Law. what seemed right in his own eyes." When the Torah was given to the people it served to give the sanction of law to much of what was originally mere custom; but there were many customs which continued as unwritten law to exist side by side with the written law or Torah. Much of the old customary law which was not incorporated in the Torah was preserved by oral tradition from generation to genera tion, living in the national memory until it was finally reduced to writing in the Mishnah, at the end of the second century of the Com mon Era. And still there remained much of the old law which was not incorporated either in the Torah or the Mishnah, and which is preserved in the form of old Mishnayoth in the Gcmara. (The Mishnah and Gemara together constitute what is known as the Talmud.) Although the Mishnah was in point of fact compiled and reduced to writing long after the Torah, it is not prop erly to be considered as following the Torah, but as contemporaneous with it. It was the old common law of the Israelites existing side by side with its written code, the Torah. We know when the period of the Mishnah ended, but not when it began. The Mish nah itself bears testimony to its ancient traditional origin. The so-called " Sayings of the Fathers " (Pirke Aboth) open with the following statement of the chain of tradi tion : — "Moses received the Law at Sinai, and he transmitted it to Joshua, and Joshua to the elders, and the elders to the prophets, and the prophets handed it down to the men of the Great Synagogue " (Aboth I, 1), and last of the members of the Great Synagogue was Simon the Just, who lived at the begin ning of the third century B. C. According to this tradition, both the written and the oral law began with Moses. In the introduction to his monumental Codex of the Jewish law, Maimonides gives the following account of the tradition of the law : —

255

"All the laws given to Moses at Sinai were given together with their commentary, for it is written (Exodus xxiv, 12), 'And I will give thee tables of stone and a law (Torah) and commandments (Mizvoth).' Torah is the written law and the Mizvoth are the commentaries; and he commanded us to perform the law according to the com mentary; and this commentary is called the oral law. Moses, our teacher, wrote the entire Torah, and he gave a copy thereof to each tribe, and one copy was laid in the ark as a witness, as it is written, 'Take this Book of the Law and put it in the side of the Ark of the Covenant of the Lord your God, that it may be there as a witness against thee.' (Deut. xxxi, 26.) And the commandments (Mizvoth), which were the commentary on the law, he did not write down, but he com manded them unto the Elders and unto Joshua and the rest of Israel, as it is written, ' Whatever thing I command you, observe to do it.' (Deut. xii, 32.) On this account it is called the oral law. Although the oral law was not written down, Moses, our teacher, taught the whole of it in his court of justice to the seventy elders; and Eleazar, Phincas and Joshua received it from Moses, and to Joshua, who was the pupil of Moses our teacher, he transmitted the oral law and in structed him in it; and many elders received it from Joshua and his court of law, and Eli received it from the elders, and Phineas and Samuel received it from Eli and his court of law, and David received it from Samuel and his court of law." . . . And through him the law was transmitted to the prophets and expounded in their courts of law, and from them Ezra received it; and the judges of the court of Ezra were called the men of the Great Synagogue, and the last of them was Simon the Just. (Introduction to Mai monides' Mishnc Torah.) According to this traditional account, which contains in it the actual fact, though somewhat fancifully stated, the oral law was expounded in the court of justice presided