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The Legal Methodology of Late Nehardean Sages in Sasanian Babylonia by Barak S. Cohen (Brill Reference Library of Judaism: Brill) This book consists of a systematic analysis of the halakhic/legal methodology of fourth and fifth century Nehardean amoraim in Babylonia (as well as their identity and dating). The book uncovers various distinct characteristics present in the halakhic decision making and source interpretation, and demonstrates how certain amoraim can be characterized as portraying consistent interpretive and legal approaches throughout talmudic literature. Understanding the methodological characteristics that distinguish some amoraim from other amoraim can aid the talmudic interpreter/scholar in clarifying the legal foundations of their rulings, the proofs that they bring within talmudic discourse, as well as their disputes and interpretations. This allows a better understanding of the development of Jewish law and the legal system in talmudic Babylonia.

Barak S. Cohen, Ph.D. (2004) in Talmud and Rabbinics, is a lecturer at the Department of Talmud, Faculty of Jewish Studies, Bar-Ilan University. He has published extensively on the intellectual history, chronology and historiography of the Babylonian Amoraim.

This book consists of a systematic analysis of the halakhic/legal methodology of fourth and fifth century Nehardean amoraim in Babylonia. My analysis of this literature expands upon similar studies that I have published elsewhere concerning the methodology of Babylonian amoraim with whom I do not deal directly here. In those articles I described various distinct characteristics present in the halakhic decision making and source interpretation (Bible, Mishnah, baraitot, and early amoraic statements) ascribed to certain outstanding Babylonian amoraim. I documented how certain amoraim can be characterized as portraying consistent interpretive and legal approaches throughout talmudic literature and that this consistency is most evident in the discourse found in the Babylonian Talmud (Bavli).

Uncovering the methodological characteristics that distinguish some amoraim from other amoraim can aid the talmudic interpreter/scholar in clarifying the legal foundations of their rulings, the proofs that they bring within talmudic discourse, as well as their disputes and interpretations. This is especially significant in cases where such literature is strained or complicated, presenting difficulty to the traditional scholar and modern interpreter alike. My basic claim is that each statement attributed to an aurora must be analyzed not only on a point by point basis, but also in light of that amora's broader methodology. This type of analysis occasionally prevents the necessity of attributing what seems to be a strained statement or interpretation to an interpolation made by a later anonymous editor, a "solution" often proffered by modern talmudic scholars.

Besides the aid this type of "broad analysis" provides in interpreting isolated difficult passages, there are other more general benefits as well. For instance, the systematic study of the methodology of the amoraim allows us to better understand the development of the talmudic legal system. Perhaps most significantly, this analysis has considerable consequences as to the reliability of the ascription of amoraic statements in the Babylonian Talmud, which has been questioned throughout the history of modern talmudic scholarship. The fact that different amoraim exhibit distinctive methodological approaches throughout the Talmud, approaches that occasionally sharply contrast with those of their colleagues, strengthens the general reliability of the ascription of statements in the Bavli. It seems quite unlikely that such a high degree of consistency could be the result of statements being written or constructed by later editors, especially when the distinct dialectics of the amoraim are also documented in traditions ascribed to them in the Palestinian Talmud. Rather, the analysis found in this book strongly suggests that the transmitters of talmudic literature have passed down their traditions in a relatively reliable fashion, even if the level of this reliability does not extend to the very words attributed to the amora.

Turning our attention to the particulars of Nehardea and its sages, our analysis of the methodology of late Nehardean amoraim leads to a reevaluation of some assumptions and theories that have been accepted among modern scholars as to the sources and characteristics of the legal literature produced in Nehardea during the fourth and fifth centuries. For instance, systematic analysis of the halakhic traditions ascribed to late Nehardean amoraim does not support the generally accepted theory that the source of this literature is to be found in early Babylonian halakhah from the pre-talmudic period, or slightly thereafter. Another example is the new light this study brings as to the source of the collection of baraitot found in Nehardea that R. Hoshaya, a third generation amora, regularly quoted.

Perhaps of greatest consequence as to our understanding of Nehardea and its sages, our analysis leads us to reject the tendency among modem scholars to perceive Nehardean amoraim throughout the talmudic period as a "school" with a conservative tendency, tending to rule systematically according to local halakhic traditions which originated with Samuel or R. Nahman. We shall also question the notion that the Nehardean sages can be characterized as focusing more on the interpretation of Mishnah and baraita than their counterparts in Sura and Mahoza. These types of claims, and others which have been suggested by talmudic scholars and historians, will be reevaluated based on the findings that emerge from my systematic analysis of late Nehardean halakhic literature and its comparison with contemporary literature produced in both Babylonia and Palestine.

This book further reevaluates the identity and dating of some of the sages who stand at the center of our discussion. Employing recent research into talmudic terminology and the hierarchical relationship between Babylonian amoraim, I have re-examined a series of assumptions and theories that are found in both medieval geonic chronologies of the talmudic period and in modern research. This analysis has led to some adjustments in the chronology and identification of a few late Babylonian amoraim.

The origins of a center of rabbinic activity in Nehardea' have been obscure and in dispute since the very beginning of the writing of rabbinic history, with the writing during the geonic period (ninth-tenth centuries, Babylonia) of the two classic chronologies, Seder Tannaim ve-Amoraim and the Epistle of R. Sherira Gaon.' R. Sherira describes Rav and Samuel as being the sages who originally lead two "yeshivot" (Babylonian academies, schools), one in Nehardea and the other in Sura: "and to Rav and Samuel there were two academies (tartin metiva'ata)." A similar conception concerning the nature of the centers of learning in Babylonian can be found among historiographers of Babylonian amoraim from the geonic period and onward, although these writers do not agree as to the origins of these centers.'

In contrast, the author of Seder Tannaim ve-Arnoraim notes that Rav and Samuel "exercised with authority (nahagu serara)" in Nehardea, and ascribes the first actual yeshiva to R. Huna (died in 297), and R. Huna's yeshiva was in Nehardea." Both traditions' locate the origins of the first Babylonian academies in the beginning of the amoraic period. They disagree as to the details: whereas R. Sherira claims that such academies existed by the beginning of the third century, during the period of Rav and Samuel, the author of Seder Tannaim ve-Amoraim posits a slightly later starting date, at the end of the third century, during the time of R. Huna and R. Hisda.9 The lack of accordance on this matter between the different geonic chronologies and the gap of eighty years between the two dates led Moshe Beer to the following conclusion: "Based on these conclusions, it becomes clear that there was no unified tradition during the geonic period as to the beginnings of the Babylonian yeshiva."

Modern scholars have also debated the question of the origins of rabbinic instruction in Babylonia. There are scholars who claimed that rabbinic instruction existed already during the mishnaic period," while there are those who pushed off the origins to the period of Rav and Samuel. Other scholars posited that rabbinic activity and instruction developed their foundations gradually, beginning during the period of Rav and Samuel and continuing to grow during the second half of the third century, the period of R. Huna and R. Hisda. This position is based, among other factors, on the appearance of certain terms which carry an institutional connotation [such as: "academy head" (resh metivta/rosh yeshiva), kallah, pirka] in connection with sages of the second half of the third century. According to this view, the existence of these terms strengthens the possibility of some type of development in the formation and solidification of the academies in Sura and Nehardea throughout the third century.' Other scholars have taken an altogether different approach, and suggested that throughout the talmudic period rabbinic instruction took place in small settings, known as "disciple circles"—groups of students centered around one central sage. The structural change that turned these small circles of sages into the academies that clearly existed during the geonic period occurred only during the post-amoraic period, from 500 C.E. and onward."

Despite the range of opinions as to the origins of rabbinic activity in the Babylonian academies, all scholars agree that by the first half of the third century some form of instruction took place. However it was organized and whatever its characteristics were it, already existed in Nehardea. Indeed, I have found that from the beginning of the amoraic period there is significant literary testimony as to the existence of a formal learning setting in Nehardea. This testimony centers around two sages who were active during the first half of the third century in Nehardea—R. Shila and Samuel.

This book presents a systematic analysis of the entire halakhic corpus ascribed to each late Nehardean sage mentioned in the Bavli (including ascriptions found only in manuscripts) and a comparison of these findings with other contemporary sages. This comparison, an approach used by scholars in their research into Babylonian amoraim, allows us to better understand the nature and distinct features of the halakhic methodology which characterizes these late Nehardean amoraim. This analysis includes an examination of the following genres of statements attributed to these amoraim: halakhic decisions in both concrete and academic cases, logical conclusions and analogies, proofs brought from earlier sources, interpretations, as well as a few other genres of literature.68 Due attention will also be paid to the legal basis upon which their disputes are based.

Our analysis has led us to conclude, that in contrast to a commonly held assumption among talmudic scholars and historians, we cannot speak of any "Nehardean school" which coalesced around a local halakhic tradition stemming from the pre-talmudic period or thereafter. Moreover, in our opinion we cannot even speak of late Nehardean amoraim as having any homogeneous style of learning or decision making. Indeed, the opposite is true. Despite the fact that they operated in the same geographical region and during the same historical period, late Nehardean amoraim differ from each other in the methods through which they make halakhic decisions and in the halakhic thinking that underlies their rulings. In truth, it seems that in many cases a sage's rulings depended more on his personal leanings, and perhaps on other external factors, and less on his inherited halakhic tradition from Nehardea or elsewhere. It turns out therefore that we must relate to Nehardean amoraim as a heterogeneous group, distinct one from the other in terms of legal thought and its application, much in the same way that amoraim from different geographical regions differ from each other.

Uncovering the methodological approaches that characterize a given amora's statements often affords a better scientific understanding of the passage in which the statement is embedded. This tends to be especially true in passages that have some difficulty or lack of clarity. Analysis of isolated passages is not always sufficient because at times it is possible to provide a more accurate understanding of a sage's specific statement by understanding it in light of statements made by the same sage in other places. A broad description of a sage's methodology occasionally opens the possibility for an alternative understanding of one of his specific statements. Thus we can avoid a common problem in the scholarly study of rabbinic literature the unnecessary emendation of a rabbinic statement, or the ascription of part of the statement to interpolations by later editors. This is often a tool used by the modern scholar in order to solve certain difficulties.' Through better understanding of the methods of these amoraim, we can solve these difficulties in other ways. There are other important consequences to our findings which we shall describe as we proceed.

 The Late Nehardean Amoraim

We shall now proceed with a brief introduction to the late Nehardean amoraim which this work describes in depth. The main attributes, distinguishing characteristics, literary phenomena etc. associated with each of these sages (or in one case, with a group of sages) are briefly outlined here. Support for these descriptions, bibliographical references and in general greater depth of analysis can be found in each of the chapters devoted to these figures.

"The Nehardeans Say" (Chapter Three)

The halakhot ascribed to "the Nehardeans say," present a unified and coherent halakhic approach, focusing mainly on concrete issues of daily halakhah. They are mostly concerned with financial matters, and less occupied with matters of religious prohibitions. As far as the literary setting of these statements, in the overwhelming majority of cases, "the Nehardeans say" respond to the statements of earlier amoraim with whom they essentially agree. In such cases they expand the applicability of the earlier halakhah, find support for it from the Mishnah, explain the halakhah, use it in decision making, or find exceptions to its applicability. Even in their halakhic disputes with other amoraim, they basically agree with the previously stated halakhah. What seems to be a disagreement with the earlier opinion can in actuality be understood as an extension of the applicability of that halakhah. Put sharply, "the Nehardeans say" almost always react to earlier statements and very rarely initiate their own literature. This phenomenon is manifested in the very wording of their statements. In nearly every case in which they dispute an earlier opinion, their opinion cannot be understood outside of the context of the previous statement. In other words, since they usually expand the applicability of the previous opinion (with phrases such as "even in case X" or "even because of X"), one must know the previous opinion in order to even understand what the Nehardeans are speaking about. In three cases a halakhic ruling issued in a concrete case is ascribed to them, but this ruling is nothing but the application of a halakhah found in the Mishnah. Even fewer are the cases in which the Nehardeans' statement is stated apodictically. "Nehardeans say" statements almost never open a discussion, nor are they based on reasoning and logic alone. These characteristics exist in sharp contrast with statements attributed to R. Hama and Amemar, other Nehardean amoraim who were active during the second half of the fourth century.

R. Zebid of Nehardea (Chapter Five)

Evidence points to R. Zebid of Nehardea as having been rosh yeshiva in the local yeshiva in Nehardea and to have died before 375/376. The literature attributed to R. Zebid of Nehardea has certain characteristics which distinguish him from other late Nehardean amoraim.

First, R. Zebid of Nehardea's literary contributions in the Bavli are not documented in a direct manner. Rather, his statements are always transmitted by one of two amoraim who were subordinate to him—R. Kahana of Pum Nahara or Arnemar. The report of R. Zebid of Nehardea's responses to other amoraim is nearly always stated in a retroactive fashion, in first person, using the expression, "I stated my tradition in front of R. Zebid of Nehardea and he said [to me]." This expression is usually used in the Bavli to describe a student reporting a ruling, halakhah or opinion in front of his master (or another elder sage) in order to receive his teacher's opinion.

Second, the content of R. Zebid of Nehardea's statements differs from those ascribed to other late Nehardean amoraim. (1) R. Zebid of Nehardea typically responds to an amoraic tradition recited in front of him by providing an alternative version of the tradition. In all of these cases the statement is ascribed to Nehardean amoraim (Samuel, R. Nahman or R. Hama). R. Zebid of Nehardea's responses are usually worded in the following manner: "You (pl.) recite it that way, we recite it this way." Deeper analysis of these passages demonstrates that the versions of amoraic statements put forth by R. Zebid of Nehardea oppose the versions found among his contemporaries in Babylonia. This phenomenon is most noteworthy on b. Kiddushin 72b where Amemar stands in front of R. Ashi and insists upon the correct- tress of the version of a statement attributed to Samuel which he heard from R. Zebid of Nehardea, despite the fact that this version disagrees with the version of the statement taught in "the house of R. Kahana," "the house of R. Papa," and "the house of R. Zebid." It seems that as a Nehardean, R. Zebid of Nehardea had access to alternative versions of statements made by his predecessors in Nehardea, and especially by those of sages who lived slightly before his time. This could explain the special respect which Amemar accorded these statements.

Third, R. Zebid of Nehardea tends to critique or reject interpretations, opinions or halakhic rulings that do not accord with the context or halakhah found in the tannaitic source. In other words, his halakhic opinions tend to stay close to those found or reflected in tannaitic sources. His approach to interpretation stems from an assumption, described by modern legal scholars, that a judge or interpreter is subject to the law found in sanctioned sources. In this way R. Zebid of Nehardea differs sharply from other late Nehardean amoraim especially R. Hama and Amemar.

Dimi of Nehardea (Chapter Six)

R. Dimi of Nehardea was a fifth generation Babylonia amora, who according to geonic chronicles stood at the head of the yeshiva in Pumbedita for three years, until his death in 388. Most of his contributions to the talmudic record are in areas of halakhah which would occur within the framework of daily life. In almost all of the literature attributed to him (700/0) R. Dimi of Nehardea disputes amoraim who preceded him, including Nehardean amoraim (Rav and Samuel, R. Yohanan, R. Nahman, Abbaye, Rava and R. Papa). Analysis of these passages demonstrates that he disputes with the previously presented opinion based on his own reasoning, and not based on traditional sources or even on local traditions. In addition, in a few cases R. Dimi of Nehardea disagrees with a halakhah stated by an earlier amora, and presents the opposite tradition, using the term "teaches the opposite" ("matni ipkha"). This predisposition stands in stark contrast with that detected in "the Nehardeans say" traditions, in which "the Nehardeans" tend to expand the application of the earlier opinion. Disputing earlier opinions based on logic is also characteristic of R. Hama and Amemar. Nevertheless, in the case of R. Dimi of Nehardea, there is no indication that his reasoning contradicts tannaitic traditions, as is the case with R. Hama and Amemar.

Amemar and R Hama (Chapters Two and Four)

R. Hama was active in Nehardea during the fifth generation of amoraim and died in 377. Amemar was active during the second half of the fourth century; the date of his death is estimated to the beginning of the fifth century. Amemar was clearly the dominant halakhic figure among late Nehardean amoraim (he appears in the Bavli about 200 times), and his activity and halakhic influence seems to have extended beyond the borders of Nehardea to Mahoza and other places as well.

Amemar and R. Hama are documented in the Bavli mainly as judges and legal instructors (appearing in the house of the exilarch, in court cases and in public expositions). Analysis of their corpus of halakhah reveals that they share a similar halakhic methodology, even though this methodology is more noticeable in terms of both quality and quantity with regard to Amemar. Both amoraim exhibit a critical approach to normative sources (tannaitic sources and early amoraic statements). They both employ independent legal reasoning and a keen ability to navigate between different circumstances. This causes them to deviate at times from the accepted tannaitic or amoraic halakhah.

These characteristics match the approach termed by modern legal scholars, "legal realism." Reading their statements, the reader is /narked by the impression that the halakhah in Nehardea, under the guidance of R. Hama and Amemar, was more dependent upon the personality and legal methodology of the individual judge than upon the theoretical halakhah contained in the normative sources. This is especially true of Amemar, who at times intentionally rules in opposition to a mishnah, a baraita, an early halakhic tradition (including those issued in the name of Samuel and R. Nahman) or in opposition to the rules of halakhic decision making accepted in his time.

Testimony to this phenomenon can be found in the large number of difficulties that R. Ashi raises against Amemar (about forty cases) and the resolutions provided by Amemar (or the stam on his behalf) which typically offer strained interpretations of the tannaitic sources used by R. Ashi as refutations. At times Amemar avoids any direct answer to R. Ashi, and rather states, "I did not hear of it (that is to say, it is not reasonable to me)." Modern scholars have also had difficulty in explaining these phenomena, and have systematically preferred not to accept the ascription of these resolutions to Amemar (or R. Hama). Instead, scholars have ascribed these statements to interpolations made by late editors. In our opinion, before explaining these statements away as later interpolations, we should take into account the strong possibility that these interpretations stem from Amemar's halakhic audacity and the authority which he enjoyed. This boldness and authority is even reflected in Amemar's well-known statement, "a sage is greater than a prophet" (b. Bava Batra 12a).

In a series of important studies, Yaakov Elman demonstrated that external factors such as the Manichaean polemics in Mahoza in the fourth century (where Amemar was active, beyond his activity in Nehardea), could exert an influence on an Aurora's rulings." These religious polemics centered around the question of the authority of various leaders to interpret their holy scriptures, and to apply them to their daily lives. This understanding finds expression in Mani's own writings. Elman demonstrated that the religious atmosphere of the surrounding culture permeated the statements of R. Nahman and Rava. In my opinion, the surrounding religious culture, whose impact was felt by the Jewish community in Mahoza, may have also served as a contributing influence upon the legal thinking and world outlook of Amemar.

Broader Implications Ensuing from this Study

Above, I noted a tendency among modern talmudic researchers to resolve difficulties in amoraic statements by ascribing these statements, or at least parts thereof, to later editors. Here, I will focus on how this tendency comes into fruition with some of the strained interpretations found in Amemar's statements. In about five percent of Amemar's approximate 200 appearances in the Bavli he is portrayed as interpreting a tannaitic source. In and of itself this paucity of tannaitic interpretation is noteworthy when compared with other amoraim, and even Nehardean amoraim, who more frequently are found interpreting tannaitic sources. In all of these cases Amemar's interpretations are highly strained. Most of Amemar's rulings and halakhic dicta simply do not accord with the halakhah found in tannaitic sources. The difficulties that traditional commentators raised on these statements often led to even more strained resolutions, and in many cases they were forced to limit an interpretation or ruling of Amemar to a narrow circumstance. Needless to say, these interpretations do not tend to accord with simple readings of the sources themselves.

Talmudic researchers have had difficulty in accepting these passages as they are presented, and have tended, as I stated above, to resolve Amemar's unusual methodology by either emending his statements, or by ascribing them or parts thereof to a later editor. A foundational assumption among modern talmudic researchers is that strained interpretations and statements ascribed to amoraim are a sign that the words may not accurately reflect what the amora actually said and that later interpolations may have crept into his statement. This assumption results in an attempt to reconstruct the original words of amora. For our purposes, we should note that the multiplicity of statements attest to how difficult it was for scholars to accept to resolve in such a manner the difficulties found inAmemar's attempted source of these passages, as they are in front of us, might have indeed been Amemar himself.

In my opinion this type of solution is often unnecessary in the case of Amemar. The two phenomena that we have noted in connection with Amemar—the fact that his rulings contradict tannaitic tradition and the existence of strained interpretations to tannaitic sources—are interrelated. I shall explain. The main literary contribution of the amoraim was their interpretation of the Mishnah, both as a goal unto itself and as a means to resolve contradictions. This was a multi-faceted activity and it included: interpretations of the Mishnah's words, halakhot and measures, identification of various viewpoints, explanation of the reasons that lay behind the halakhot, deductions from the Mishnah's language, and more. Analysis of the passages in which Amemar is documented as interpreting a tannaitic source reveals that his motivation was not to explain the tannaitic source for its own sake. Rather, Amemar's interpretations were a result of his need to resolve the tannaitic source such that it would not contradict his own ruling. In nearly all cases in which Amemar interprets a tannaitic source, his interpretation comes as a result of a difficulty raised upon him in an encounter with his student, R. Ashi. In other words, Amemar's strained interpretations are a result of the circumstances in which they arose." A halakhic ruling that contradicted tannaitic or early amoraic tradition caused a difficulty to be raised, usually by R. Ashi, which in turn led Amemar (or at times the anonymous editor, the stam) to suggest a strained interpretation in an attempt to resolve the contradiction.

This phenomenon explains why it is specifically Amemar who offers such a large number of strained interpretations. The consistency with which Amemar acts throughout a wide variety of situations, including his interactions with his contemporaries, leads to the obvious conclusion that these passages are a reflection of Amemar's style of learning. In other words, at times the level of their difficulty indicates that the words of an amora are actually a reliable witness to their amoraic source. As Halivni has stated, "the academic approach leaves the difficulty and does not remove it. Rather, it explains the source of such a difficulty and how it arose."" In sum, there is not always a need to "resolve" Amemar's or other late Nehardean amoraim's statements by emending their words or by ascribing parts of their statements to interpolations by later editors; rather it is possible to understand their origins as we have suggested here. Our study into amoraic interpretation, halakhah and discourse reveals that the tendency of an amora to offer a strained interpretation to a tannaitic text, or a tendency to rule in opposition to tannaitic tradition, is an individual matter, and does not characterize all Babylonian amoraim or the entire Babylonian Talmud in the same way.

I have not found any basis for Hanina Ben-Menahem's claims that Babylonian amoraim—in contrast with Palestinian amoraim—are characterized by an overall tolerance of deviations from the rulings found in accepted sources. Ben-Menahem writes:

The Jerusalem Talmud is usually opposed to judicial deviation from the law and strives to understand and account for early traditions reflecting such deviation .... Overall, the Jerusalem Talmud rejects the possibility of judicial deviation from the law. In contrast, the Babylonian Talmud is unconcerned by early traditions reflecting deviation from the law and does not attempt to bring the practice of judicial deviation within the limits of rules ...Generally speaking, the Babylonian Talmud accepts the possibility of judicial deviation from the law and at times even views such deviation favourably."

It seems to me that we must, at the least, temper Ben-Menahem's
broad generalization concerning all Babylonian amoraim and the entire
Bavli. Study of the methodology of Babylonian amoraim does not support such broad conclusions. My study of the halakhic methodology and interpretation of Nehardean amoraim shows that the phenomenon of amoraim deviating from accepted halakhic sources is not found consistently even among the yeshiva heads in a single geographical location over a period of over 150 years. There are contradictory tendencies in halakhic rulings and commentary found in Nehardea throughout the talmudic period. We have, for instance, the baraitot of "Tanna D'Bei Shmuel" (first half of the third century), and the statements of R. Sheshet (second half of third century), "the Nehardeans say" and R. Zebid of Nehardea (first half of the fourth century) which can all be characterized, each in his own way, by a trend towards halakhic conservatism. These statements all exhibit a high degree of dependence upon tannaitic and early amoraic tradition. In contrast, R. Nahman, R. Hama and Amemar exhibit exact opposite tendencies, relying systematically upon logic and independent reasoning as a source of halakhah, even when this leads them to contradict earlier tradition. It is impossible to draw general conclusions from the few examples brought by Ben-Menahem, and until examination of the entirety of the literature of the significant amoraim is undertaken we can at best arrive at a general impression.