1. Cover, Robert, “The Supreme Court, 1982 Term — Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983): 53, 68CrossRefGoogle Scholar.

2. A search for the phrase ʾelu ve-ʾelu divrei … in the Bar-Ilan database yields no less than 14,008 results, from classical sources through to contemporary halakhic literature.

3. Fraade, Steven D., “Rabbinic Polysemy and Pluralism Revisited: Between Praxis and Thematization,” AJS Review 31 (2007): 3, 24CrossRefGoogle Scholar; Hidary, Richard, Dispute for the Sake of Heaven: Legal Pluralism in the Talmud (Providence, RI: Brown Judaic Studies, 2010), 26–27Google Scholar.

4. E.g., Yadin-Israel, Azzan, “Rabbinic Polysemy: A Response to Steven Fraade,” AJS Review 38 (2014): 134CrossRefGoogle Scholar; Naeh, Shlomo, “Make Your Heart Chambers of Chambers: More on the Rabbinic Sages on Argument” [in Hebrew], in Renewing Jewish Commitment: The Work and Thought of David Hartman, ed. Sagi, Avi and Zohar, Zvi (Tel Aviv: Hakibbutz Hameuchad, 2001), 856–57Google Scholar; Boyarin, Daniel, Border Lines: The Partition of Judaeo-Christianity (Philadelphia: University of Pennsylvania Press, 2004), 162CrossRefGoogle Scholar; Yitzhak Gilat, “On the Debate between Beit Hillel and Beit Shammai” [in Hebrew], in Yad le-Gilat (Jerusalem: Mosad Bialik, 2002), 159; Shapira, Haim and Fisch, Menachem, “The Dispute between the Houses,” ʿIyyunei mishpat 22 (1999): 491Google Scholar; Cover, Robert, “Obligation: A Jewish Jurisprudence of the Social Order,” Journal of Law and Religion 5 (1987): 68CrossRefGoogle Scholar. Shaye J. D. Cohen, David Stern, and Susan Handelman cite the entire tradition but focus only on its pluralistic message. Cohen, Shaye J. D., “The Significance of Yavneh: Pharisees, Rabbis, and the End of Jewish Sectarianism,” Hebrew Union College Annual 55 (1984): 48Google Scholar; Stern, David, Midrash and Theory: Ancient Jewish Exegesis and Contemporary Literary Studies (Evanston, IL: Northwestern University Press, 1996), 21–22Google Scholar; Handelman, Susan, The Slayers of Moses: The Emergence of Rabbinic Interpretation in Modern Literary Theory (Albany: State University of New York Press, 1982), 56Google Scholar.

5. E.g., Yehuda Brandes, “Beginnings of the Rules of Halachic Adjudication” (PhD diss., Hebrew University, 2002), 194–205; Guttman, Alexander, “The End of the ‘Houses,’” in The Abraham Weiss Jubilee Volume, ed. Belkin, Samuel et al. (New York: Abraham Weiss Jubilee Committee, 1964)Google Scholar; Safrai, Shmuel, “The Decision according to the School of Hillel in Yavne” [in Hebrew], Proceedings of the World Congress of Jewish Studies 7, no. 3 (1977): 21–44Google Scholar. On the tendency to emphasize either the pluralistic or the monistic aspects of this text in the medieval period, see Sagi, Avi, “‘Both Are the Words of the Living God’: A Typological Analysis of Halakhic Pluralism,” Hebrew Union College Annual 65 (1994): 106Google Scholar.

6. Among the few scholars who do address the tension between the parts of “These and those …,” albeit only briefly, are Jackson, Bernard S., “Secular Jurisprudence and the Philosophy of Jewish Law: A Commentary on Some Recent Literature,” Jewish Law Annual 6 (1987): 33–34Google Scholar; Ben-Menahem, Hanina, “Is There Always One Uniquely Correct Answer to a Legal Question in the Talmud?,” Jewish Law Annual 6 (1987): 167–68Google Scholar; Stone, Suzanne Last, “In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,” Harvard Law Review 106 (1993): 836CrossRefGoogle Scholar; and Fraade, Steven D., “Response to Azzan Yadin-Israel on Rabbinic Polysemy: Do They ‘Preach’ What They Practice?,” AJS Review 38 (2014): 345, 350CrossRefGoogle Scholar.

7. Boyarin, Daniel, “The Yavneh-Cycle of the Stammaim and the Invention of the Rabbis,” in Creation and Composition: The Contribution of the Bavli Redactors (Stammaim) to the Aggada, ed. Rubenstein, Jeffrey L. (Tübingen: Mohr Siebeck, 2005), 262Google Scholar.

8. Yadin-Israel, “Response to Steven Fraade,” 134. Though Boyarin acknowledges in a footnote that “These and those …” first appears in the Yerushalmi (“Yavneh-Cycle,” 247n46), he consistently cites only the Bavli source, giving the impression that it is a Babylonian innovation (Border Lines, 162; “Yavneh-Cycle,” 262).

9. Fraade, “Rabbinic Polysemy.”

10. Fraade notes the early Palestinian roots of “These and those …” only once, in a footnote (Fraade, “Response,” 341n5).

11. Notably, the most thorough and systematic study of the question of legal pluralism in rabbinic sources, Hidary's Dispute, does not present an explicit narrative of the development of pluralism in rabbinic Judaism. Hidary primarily deals with the amoraic sources, extensively documenting the monistic tendencies of the Yerushalmi and the pluralistic tendencies of the Bavli.

12. Hayes, Christine, “Legal Truth, Right Answers and Best Answers: Dworkin and the Rabbis,” Dine Israel 25 (2008): 73–121Google Scholar; Hayes, “Theoretical Pluralism in the Talmud: A Response to Richard Hidary,” Dine Israel 26–27 (2009–10): 257–307; Jackson, “Secular Jurisprudence,” 19. The original terms used by Jackson and Hayes are “legitimacy,” “authenticity,” and “validity.” Due to the similarities in meaning between “legitimacy” and “validity” in common usage, I have replaced “legitimacy” with “normativity,” which, in our context, captures the intent behind Jackson's and Hayes's category.

13. Hayes, “Theoretical Pluralism,” 259. This use of the term “validity” can be traced back to Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 1961)Google Scholar.

14. See especially Hidary, Dispute; and, most recently, Furstenberg, Yair, “From Tradition to Controversy: New Modes of Transmission in the Teachings of Early Rabbis” [in Hebrew], Tarbiz 85 (2018): 587–641Google Scholar. See also, Boyarin, “Yavneh-Cycle”; Fraade, Steven D., “‘A Heart of Many Chambers’: The Theological Hermeneutics of Legal Multivocality,” Harvard Theological Review 108 (2015): 113–28CrossRefGoogle Scholar; Fraade, “Rabbinic Polysemy and Pluralism”; Fraade, “Response to Azzan Yadin-Israel”; Yadin-Israel, “Response to Steven Fraade”; Fisch, Menachem, Rational Rabbis: Science and Talmudic Culture (Bloomington: Indiana University Press, 1997), 51–95Google Scholar; Halbertal, Moshe, People of the Book (Cambridge, MA: Harvard University Press, 1997), 45–81Google Scholar.

15. Mishnah texts according to MS Kaufmann. Translations in this article are my own, adapted from Danby's translation of the Mishnah, the Soncino translation of the Talmud, and Hidary, Dispute, for Tosefta and Yerushalmi passages.

16. Printed editions read שלשת.

17. Printed editions add חכמים.

18. Printed editions read לבטלה.

19. Printed editions read דבריו.

20. Furstenberg cites the parallel tosefta, 1:3, to support this reading; Furstenberg, “From Tradition to Controversy,” 609. But see Novick, Tzvi, “Tradition and Truth: The Ethics of Lawmaking in Tannaitic Literature,” Jewish Quarterly Review 100 (2010): 234–35Google Scholar.

21. MS Parma reads יסמוך.

22. MS Parma reads יאמרו, printed editions יאמר.

23. Furstenberg, “From Tradition to Controversy,” 611.

24. The relationship between the Mishnah's explanation for why minority positions are included and its subsequent statement about greater and lesser courts is ambiguous. My explanation follows Raavad's interpretation, which was adopted by Tosafot Yom Tov and Tifʾeret Yisraʾel, as well as by Furstenberg, “From Tradition to Controversy,” 612, and Hidary (personal communication, May 14, 2019). An alternative reading is suggested by Maimonides in his commentary. However, he appears to have later revised his understanding of the Mishnah to something more in line with Raavad's interpretation. See Mishneh Torah, hilkhot mamrim 2:2.

25. The Tosefta presents a somewhat different formulation of this position, which it attributes to R. Judah: “Perhaps the times will require it, and [a later court] will rely on them” (T. Eduyyot 1:4). This formulation suggests that a later court may accept a previously rejected position, not because it believes it to be the sole authentic option, but because the social or political situation makes it necessary to temporarily rely on it, apparently positing that indeed both sides of the debate are authentic and have normative potential. This is one of the few sources in tannaitic literature that can be read as implying pluralism on the level of authenticity.

26. Furstenberg, “From Tradition to Controversy,” 609. But see Novick, “Tradition and Truth,” 234–35.

27. Translation from Hidary (Dispute, 167), based on MS London of T. Ḥagigah. The phrase “and there arose two Torahs” appears only in some MSS. See Hidary, Dispute, 167n14; Saul Lieberman, Tosefta (New York: Jewish Theological Seminary, 1992) 1:384 [in Hebrew]; Lieberman, Saul, Tosefta ki-feshutah: A Comprehensive Commentary on the Tosefta (New York: Jewish Theological Seminary, 1992), 5:1298–99Google Scholar [in Hebrew]. For more on this passage, see Hidary, Dispute, 166–69, 388–89, especially the notes on the text, p. 167; Rosen-Zvi, Ishay, “A Protocol of the Yavnean Academy? Rereading Tosefta Sanhedrin Chapter 7” [in Hebrew], Tarbiz 78 (2009): 447–77Google Scholar.

28. It is unclear if this refers to cases where the tradition was lost, where there was a lacuna in the tradition, or both.

29. For a discussion of further sources that present a similar hierarchal relationship between tradition and the rule of the majority, see Furstenberg, “From Tradition to Controversy,” 616.

30. See also T. Yevamot 1:11. This mishnaic passage is consistently cited by scholars as appearing in M. Eduyyot 4:8, as well. However, it is missing from all the major MSS of M. Eduyyot. See Kenneth Jeremy Wieder, “Mishna Eduyot: A Literary History of a Unique Tractate” (PhD diss., New York University, 2005), 69.

31. Tosefta texts according to MS Vienna as presented by Lieberman. MS Erfurt has a shorter version of this passage, but there are no substantive differences between the two.

32. Deut 1:1.

33. Eccl 12:11.

34. Fraade, “‘A Heart of Many Chambers,’” 35–36.

35. B. Ḥagigah 3b.

36. Naeh, “Make Your Heart,” 858–73; Shlomo Naeh, “The Craft of Memory: Constructions of Memory and Patterns of Text in Rabbinic Literature” [in Hebrew], in Meḥkerei Talmud 3: Talmudic Studies Dedicated to the Memory of Professor Ephraim E. Urbach, ed. Yaakov Sussman and David Rosenthal (Jerusalem: Magnes, 2005), 570–83. Fraade and Hidary reject Naeh's analysis and argue for a holistic reading of the text. See Fraade, “Polysemy and Pluralism Revisited,” 33–36; Hidary, Dispute, 21–22n78.

37. Boyarin, Border Lines, 159; Yadin-Israel, “Rabbinic Polysemy,” 138; Hidary, Dispute, 21.

38. Naeh, “Make Your Heart,” 873–74. Naeh does, however, consider the possibility that the redactor was motivated by technical concerns and did not intend to formulate such a radical notion. This possibility seems unlikely to me. See Furstenburg, “From Tradition to Controversy,” 601.

39. Naeh, “Make Your Heart,” 871.

40. Text from Yevamot 1:13. Only major variants have been noted. This entire passage is missing from MS Erfurt to Sukkah 2:3.

41. MSS Erfurt and Vienna, Eduyyot 2:3; MS Erfurt, Yevamot 1:13; MS London, Sukkah 2:3, all add a connecting vav to the beginning of this sentence. This vav appears consistently in the witnesses to the Bavli passages that cite this baraita. Presumably Tosefta MSS which contain this reading were contaminated by the Bavli reading.

42. Ginzberg, Louis, A Commentary on the Palestinian Talmud: A Study of the Development of the Halakhah and Haggadah in Palestine and Babylonia (New York: Jewish Theological Seminary of America, 1941), 155–56Google Scholar; Lieberman, Tosefta ki-feshutah, 6:9.

43. Albeck, Chanoch, Shisha sidre Mishnah (Jerusalem: Mosad Bialik, 1959), 3:332Google Scholar; Safrai, “Decision,” 43; Mordechai Sabato, “The Recital of Shema by R. Yishmael and by R. Elazar b. Azariah and the Decision That the Halakhah Follows the School of Hillel” [in Hebrew], Sidra 22 (2007): 52–53. Kahana, Menahem, “On Halakhic Tolerance and Its Development: An Ancient Debate between Beit Hillel and Beit Shammai Which Took Root” [in Hebrew], Tarbiz 83 (2015): 401–17Google Scholar, presents an ingenious, but ultimately unconvincing effort to reconcile the two statements.

44. Albeck, Shisha sidre Mishnah, 3:332, concedes this point. He is forced to argue, without textual support, that the word le-ʿolam is a later addition.

45. This reading was suggested to me by Richard Hidary in a private communication.

46. Y. Berakhot 1:2 (3b); Y. Yevamot 1:6 (3b); Y. Sotah 3:4 (19a); Y. Kiddushin 1:1 (58d); B. Eruvin 13b.

47. Y. Yevamot 1:6 (3b); Y. Kiddushin 1:1 (58d).

48. MS Munich of the Bavli adds להם.

49. This word is missing in Y. Berakhot 1:2 (3b) and MS Munich 95 of the Bavli. Most Bavli MSS read הן. The entire line also appears in B. Gittin 13b.

50. The Bavli reads והלכה not אבל הלכה.

51. MS Munich adds דברי.

52. This word is missing in MS Leiden of Y. Kiddushin 1:1 (58d) and all witnesses to B. Eruvin 13b.

53. Safrai, “Decision,” 21.

54. Jer 23:36.

55. See Lundbom, Jack, Jeremiah: A New Translation, with Introduction and Commentary (New York: Doubleday, 2004), 2:212, 218Google Scholar, and William Holladay, Jeremiah: A Commentary on the Book of the Prophet Jeremiah (Philadelphia: Fortress, 1986), 1:648, 651–52.

56. See also Jer 10:10, where “the living God” is contrasted with the false idols of the nations.

57. See Naeh, “Make Your Heart,” 857, for a somewhat different understanding of this allusion.

58. See T. Sotah 13:3, discussed below. See also, Saul Lieberman, Hellenism in Jewish Palestine (New York: The Jewish Theological Seminary of America, 1962), 194–99; Kasher, Rimon, “‘Bat Qol’ in Targumic Additions to the Prophets” [in Hebrew], Proceedings of the American Academy for Jewish Research 59 (1993): 15–28Google Scholar. I have also benefited from an unpublished seminar paper by Ari Lamm, “The Bat Qol in Rabbinic Sources” (Princeton University, 2016).

59. T. Sukkah 2:3; T. Yevamot 1:13; T. Eduyyot 2:3.

60. Text according to MS Vienna as presented by Lieberman.

61. MS Erfurt reads לבית גוריה (עליית missing).

62. MS Erfurt reads ושמעה בת קול אומרת.

63. But see Avot 6:2. Even in Palestinian amoraic literature, cases of a bat kol being heard in postbiblical times are few and far between. Save for “These and those …” and the “oven of ʿAkhnai,” I have only identified Y. Kil'ayim 9:3 (32b); Y. Taʿanit 4:5 (68d); Y. Ḥagigah 2:1 (77a, 77b); and Pesikta de-Rav Kahana 18:5.

64. Safrai, “Decision,” 21–44.

65. See M. Mikva'ot 1:4.

66. Safrai, “Decision,” 21.

67. Brandes, “Rules of Halachic Adjudication,” 152–64.

68. Ibid., 194–200.

69. This understanding of “These and those …” challenges that of Naeh, who contextualizes this text in an earlier period and argues that it be understood in political, rather than halakhic, terms. Naeh, “Make Your Heart,” 853–58.

70. Yerushalmi texts from MS Leiden.

71. This view requires a rearrangement of the order of the elements of the Tosefta passage, so that the monistic element follows the pluralistic one. It is possible that the Yerushalmi had before it a version of the Tosefta in which the order was reversed. As Hidary has demonstrated, the Yerushalmi sugya on M. Yevamot 1:4 is constructed around the text of T. Yevamot chap.1, which it apparently had in a slightly different order (Hidary, Dispute, 196–204, 236–37). But it is at least as likely that the Yerushalmi itself reversed the order of the text in order to facilitate this interpretation.

72. In principle, it is possible that this statement was part of the original text and was removed in the Bavli, though that seems to me unlikely.

73. Y. Pesaḥim 4:1 (30d); Hidary, Dispute, 99–103. In contrast, B. Yevamot 14a greatly limits this rule to permit two competing halakhic factions to coexist within the same city. See Hidary, Dispute, 204–22.

74. For a complete analysis of this entire sugya in the Yerushalmi, see Hidary, Dispute, 196–204.

75. In the Yerushalmi, it is not clear who held which position. For the purposes of clarity, I have relied on the identifications found in B. Yevamot 14a.

76. For an extensive list of such sources, see the Bavli's discussion on this debate, B. Yevamot 14a–16b.

77. B. Yevamot 16a.

78. Hidary, Dispute, 204.

79. Y. Yevamot 1:6 (3a–b).

80. For discussion of the cohesiveness of the houses relative to the overall phenomenon of sectarianism in the Second Temple period, see Sussmann, Yaakov, “The History of Halakhah and the Dead Sea Scrolls—Preliminary Observations on Miqṣat Ma'ase Ha-Torah (4QMMT)” [in Hebrew], Tarbiz 59 (1990): 36–37Google Scholar; Noam, Vered, “Beit Shammai and the Sectarian Halakha” [in Hebrew], Jewish Studies 41 (2006): 66–67Google Scholar.

81. R. Yoḥanan's determination that the bat kol went forth at Yavneh was likely also motivated by same Tosefta source that originally inspired the tradition that the ruling in favor of Beit Hillel was declared by a bat kol. Immediately after the Tosefta tells of the bat kol praising Hillel in Jericho, T. Sotah 13:4 relates an almost identical tradition, set in Yavneh, praising Shmuel Ha-katan rather than Hillel. In locating the bat kol of “These and those …” in Yavneh, R. Yoḥanan most likely drew on the literary and textual connections between these consecutive accounts.

82. Unless otherwise noted, Bavli texts according to the Vilna edition.

83. Vat. Ebr. 127 adds here לו.

84. See also Vayikra Rabbah 26:2 = Pesikta de-Rav Kahana 4:2. There, scholars in the time of King David who possessed this ability are criticized for their unethical behavior.

85. Y. Sanhedrin 4:1 (22a). The translation of קטוע as “cut off” is based on traditional commentaries. Sokoloff translates it as “hewn.” Based on this, Hidary understands this phrase to be positive, saying that the student was a “chip off the old block” from Sinai. Sokoloff, Michael, A Dictionary of Jewish Palestinian Aramaic of the Byzantine Period (Ramat Gan: Bar-Ilan University Press, 1990), 487–88Google Scholar, s.v. קטע; Hidary, Richard, Rabbis and Classical Rhetoric: Sophistic Education and Oratory in the Talmud and Midrash (Cambridge: Cambridge University Press, 2018), 279Google Scholar.

86. Hidary argues that learning to argue that “a creeping thing from the Torah is pure” was viewed by the rabbis as an important skill for judges, and hence of normative value. This is true of some sources. But other sources, such the ones quoted here, appear to value this ability as an end in and of itself. Hidary, Rabbis and Classical Rhetoric, 280.

87. “These and those …” might also appear here because the story begins with the phrase neḥleku beit Shammai u-beit Hillel, a phrase that appears only once in the Mishnah (Eruvin 1:2). This passage appears at the very end of the Bavli's discussion of this mishnah.

88. MS Munich reads בר שמואל.

89. MS Munich adds להם.

90. MS Munich adds דברי.

91. Y. Sukkah 2:8 (53b) cites a similar tradition as to why the Law follows Beit Hillel, but it ultimately rejects it.

92. Vat. Ebr. 109 adds here הן.

93. Vat. Ebr. 109 and 127 add here הן. Munich 95 adds הם.

94. Munich 95 reads הם.

95. While advancing the basic agenda of the story, this gloss does not adhere to all the story's details. Following the precedent of the Tosefta's account of the origins of the houses, the story itself appears to place equal blame on both houses for their lack of humility. But in the gloss, Beit Hillel emerges as morally superior to Beit Shammai. This conforms to a different set of traditions, which discusses victory of Beit Shammai over Beit Hillel described in M. Shabbat 1:4; T. Shabbat 1:16; Y. Shabbat 1:4 (3c); and B. Shabbat 17a. These texts portray Beit Shammai's triumph as being the result of foul play on their part. Ironically, then, this interpretation somewhat undermines the pluralistic message of the story by suggesting that Beit Hillel was in some way superior to Beit Shammai.

96. B. Eruvin 6b–7a; B. Ḥullin 44a.

97. B. Berakhot 51b; B. Pesaḥim 114b; B. Yevamot 14a.

98. Text cited from B. Eruvin 7a; B. Ḥullin 44a.

99. Printed editions read דלא משגח בבת קול.

100. B. Bava Meẓiʿa 59a–b.

101. But see Tosafot, B. Bava Meẓiʿa 49b, s.v. lo ba-shamayim hi.

102. The account of R. Eliezer's bat kol presumably descends from an alternative version of the story of the bat kol in T. Sotah 13:3, found in the Yerushalmi, which features R. Eliezer (Y. Sotah 9:16 [24c]; Y. Avodah Zarah 3:1 [42c]; Y. Horayot 3:5 [48c]). The bat kol traditions of “the oven of ‘Akhnai” and “These and those …” thus descend from a common source.

103. The Bavli never fully works out the implications of this interpretive move, which is meant only to open a possibility within a dialectical discussion. This reading is internally contradictory, as it asserts that if one rejects R. Yehoshu‘a, one must follow both R. Eliezer and Beit Hillel.