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The Description of Formative Judaism: The Social Perspective of the Mishnah's System of Civil Law and Government
Published online by Cambridge University Press: 15 October 2009
Abstract
Mishnah's division of Damages presents a complete and systematic account of a theory of Israelite civil law and government. While drawing on diverse materials of earlier ages, beginning, of course, with the diverse Mosaic codes themselves, Mishnah's system came to closure after the Bar Kokhba War. Like its account of the Temple and its cult, Mishnah here speaks of nonexistent institutions and prohibited activities. There being no Israelite government, Mishnah's legislation for a high priest and Temple, a king and an army, speaks of a world which may have been in times past (this is dubious) but did not exist at the time of the Mishnaic discourse on the subject. The division of damages is composed of two subsystems which fit together logically, one on the conduct of civil society—commerce, trade, real estate, the other on the institutions of civil society—courts, administration. The main point of the former subsystem is that the task of society is to maintain perfect stasis, to preserve the status quo, and to secure the stability of all transactions. In the interchange of buying and selling, giving and taking, torts and damages, there must be an essential equality of exchange. No one should come out with more than he had at the outset. There should be no sizable shift in fortune or circumstance. The stable and unchanging economy of society must be preserved. The aim of the law is to restore the antecedent status of a person who has been injured. When we ask whose perspective is represented in a system of such a character and such emphases, we turn to examine the recurrent subject-matter of the division's cases. The subject of all predicates, in fact, is the householder, the small landholder. The definition of the problems for Mishnah's attention accords with the matters of concrete concern to the proprietary class: responsible, undercapitalized, overextended, committed to a barter economy (in a world of specie and currency), above all, aching for a stable and reliable world in which to do its work.
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- Copyright © Association for Jewish Studies 1980
References
* This is not to suggest that these two tractates have no place at all in the present division. On the contrary, given the ambition of the framers of the division of Damages—to provide a complete account of an Israelite political system—the function of ‘Eduyot, as a kind of miniature-Mishnah, covering the large number of topics treated in other divisions of the document—is not difficult to discern. Its presence allows the division to stand by itself, complemented, as it is, with an epitome of the rest of the document. ‘Abot, of course, provides a fine picture of the larger intent of the law, the sort of society the Mishnah wishes to build, with its successive statements of how people should behave.