Clarendon Press: Oxford University Press, 1972, pp. xviii, 316, £5.50
Dr. Jackson traces with great erudition the development of the laws of theft in all their ramifications from the earliest pentateuchal code, the Book of the Covenant, down to the end of the tannaitic period. Philological and form-critical methods are used and the laws are seen as evolving against the social and economic background of each period. In addition to providing a very clear and entirely adequate description of this evolution, in which all the relevant sources have been carefully examined, Jackson puts forward an interesting thesis in order to solve a severe problem presented by the evidence he adduces. We discover such an astonishing tendency towards leniency in the tannaitic sources that, when considered in isolation, the tannaitic law seems unpractical and unrealistic. Thus the evidentiary requirements were made so strict that it must often have been impossible to penalise the thief.
The robber, as opposed to the sneak-thief, was required only to restore the stolen property and pay no further fine. And when the offender confessed he was exempted from punishment. Büchler and others have suggested that these leniences stem from the requirements of biblical exegesis—e.g. to distinguish between the ganav and the gazlan—and from the desire of the Tannaim to facilitate repentance. Jackson, while admitting that both these ideas played a role in the development of the law, argues that the dominant factor was to make it easier for the Jewish offender and so keep him outside the hands of the Roman jurisdiction.
The besetting sin, against which the scholar who relies on talmudic sources for his history must always be on guard, is the acceptance at their face value of amoraic passages in which laws and maxims are attributed to the Tannairn. J. Neusner (The Rabbinic Traditions about The Pharisees Before 70) has recently and entirely correctly called attention to the precariousness, to say the least, of this kind of procedure.
Jackson, occasionally, must plead guilty on this score. He relies (p. 27), for instance, on a late amoraic story about Rabban Gamaliel (Sanhedrin 39a) to demonstrate that Rabban Gamaliel really did imply that the ganav was thought to act secretly, and he quotes Schachter to the effect that the emperor with whom Rabban Gamaliel had his discussion was Nerva or Domitian. A legend is thus illegitimately used as a source providing accurate information on the period against which it is set; a passage is quoted as tannaitic when it is only amoraic. Similarly, Jackson (p. 235) follows Krauss and Belkin in treating the amoraic, aggadic passage in Bava Metsia 83b as if it really conveyed information about conditions in the time of its hero, R. Eleazar b. R. Simeon.
Another example of incorrect dating is when Jackson (p. 26 n. 3) comments that the R. Hiyya mentioned in Bava Kama 4b is probably not the Tanna but his grandson Hiyya II bar Abba, on the grounds that it is unlikely that the Tanna would be recorded as commenting upon a statement of his own pupil, R. Oshaya, mentioned earlier in the passage. This is way off the mark. There can be no doubt that in a passage which quotes two baraitot, one taught by R. Oshaya and the other by R. Hiyya, the reference is to the first R. Hiyya (everywhere associated with R. Oshaya as a transmitter-editor of baraitot). The passage does not state that R. Hiyya ‘commented’ on R. Oshaya, only that there were twobaraitot, one taught by R. Oshaya, the other and more comprehensive by R. Hiyya. True, in the discussion words are put into R. Hiyya’s mouth as if he were commenting on R. Oshaya but this again is amoraic and is no more than the common device used in the talmudic debates.
Jackson (p. 95) quotes the Mekhilta to Exodus 22: 3, which states that one who steals property from which benefit is forbidden is exempt from paying. Jackson gives two possible reasons: (1) theft can only be committed where the property is such that benefit can lawfully be derived from it; (2) if the thief stole something from which benefit was prohibited, and paid the owner double (as was required in most cases), the owner would be receiving an indirect benefit from the forbidden property. In point of fact (1) is the correct reason while (2) is impossible. If` (2) were the reason the thief should not be exempt from all payment, only from paying double. The idea that the payment of double is a case of indirect benefit is a pleasant bit of pilpul but out of place in a work of such high standards of scholarship as this one.
A baraita is quoted (p. 170) in which it is stated that the punishment for intentional sacrilege is be’azharah. Jackson gives three possible interpretations of this, one of which is that the offender be released with a warning. Of course, only the second interpretation, which Jackson quotes from Freedman in the Soncino, is correct, that the ‘warning’ itself involves flagellation. The term azharah is a frequently recurring technical term and is synonymous with lota’aseh, a negative precept, the punishment for which is flagellation. The idea of letting an offender off with a caution is comical when applied to tannaitic legislation.
A few further points might be mentioned. Tabi, the slave of Rabban Gamaliel, was not a ‘gentile’ (p. 194 n. 4) but a Canaanite slave, whose status was in between that of Jew and gentile. The acceptance (p. 228) as historical of statements that in capital cases only the actual observation of the act by the witnesses sufficed to condemn the criminal and that circumstantial evidence was always rejected, fails to note that, as I. H. Weiss remarked long ago in hisDor, such statements are purely academic since they all date from a period when the Jewish courts could no longer administer capital punishment. The same objection applies to the uncritical acceptance (p. 230) of the statements regarding the need for hatra’ah in capital cases.
These criticisms are of comparatively minor significance. They do not affect the value of Jackson’s work as an important contribution to Jewish legal history.