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Published online by Cambridge University Press: 11 July 2014
When the justices of the U.S. Supreme Court conclude that some law, or some decision of a lower court, violates the U.S. Constitution, no great difficulties of principle or sentiment need accompany their decision to abrogate the opinions of the earlier legislators or judges. The justices, and others, are expected to understand their decision either as correcting a mistake that had been introduced by fallible people who, with intentions good or bad, or unintentionally, had violated the system's basic rulebook, or as reflecting the fact that since the time those legislators or judges made their decisions something relevant (such as notions of “cruel and unusual punishment” or of what affects interstate commerce) had changed, so what was once constitutionally acceptable no longer is. Thus, however upsetting the substance of the justices’ decision may be, it need not imply a condemnation of their predecessors nor entail a disruption of the system's authority structures—as is seen in the fact that the justices, and American citizens, readily use such explicit verbs as “reverse,” “strike down,” or “overturned” for what the justices do
I would like to express my thanks to the anonymous readers of this article for HTR, who made several insightful and helpful comments, and to numerous friends and colleagues who advised me on various points–including Robert Brody, Menachem Fisch, Harry Fox, Christine Hayes, Eric Lawee, Paul Mandel, Leib Moscovitz, Vered Noam, Avinoam Rosenak, Adiel Schremer, Aharon Shemesh, and Amram Tropper. This paper is one of the fruits of a wonderful period spent in 2006–2009 as a research fellow at the Hebrew University's Scholion Interdisciplinary Research Center in Humanities and Jewish Studies. All translations are my own, except when noted otherwise.
1 For a plain case of the legal implications of such pietas, note the 1964 refusal of a prominent American rabbi to rule that Jewish law forbids smoking, despite its dangers to health. The refusal was based “especially on the fact that smoking was and is practiced by some great men of the Torah, in past generations and the present one” (Feinstein, Moshe, Responsa Iggĕrot Moshe: Yoreh Deah, II [1973; repr., New York: Noble, n.d.] 69, no. 49 [Hebrew]Google Scholar).
2 For a study of Jewish insistence upon defending tradition against biblicizing reformers, see Rustow, Marina, “Karaites Real and Imagined: Three Cases of Jewish Heresy,” Past and Present 197 (2007) 35–74CrossRefGoogle Scholar. For Reformation and Counter-Reformation debates about tradition vs. Scripture, see Mathison, Keith A., The Shape of Sola Scriptura (Moscow, Idaho: Canon, 2001) 124–33Google Scholar.
3 See Goldberg, Abraham, “The Babylonian Talmud,” in The Literature of the Sages (ed. Safrai, Shmuelet al.; 2 vols.; Compendia Rerum Iudaicarum ad Novum Testamentum 2.3; Assen: Van Gorcum, 1987–2006) 1:323–66, at 332–33Google Scholar.
4 On this procedure and its logic within the halakhic system, see Fisch, Menachem, “Far-Fetched Interpretation and Obligatory Texts: The Amoraic ʾUqimta and the Philosophy of the Halakhah,” in New Streams in Philosophy of Halakhah (ed. Ravitzky, Aviezer and Rosenak, Avinoam; Jerusalem: Magnes, 2008) 311–44 [Hebrew]Google Scholar; and idem, “Legislation and Legal Norm Development in Jewish Law,” Periodica de re canonica 96 (2007) 401–17. Fisch focuses on cases in which the Amoraim change, by narrowing, the meaning of tannaitic texts; my discussion will focus on a case in which the change is not accomplished by narrowing and in which the amoraic change constitutes a return to biblical law.
5 For the opinions that the basic principles in these two examples are actually of biblical origin, see, respectively, Shilo, Shmuel, Dina de-Malkhuta Dina: The Law of the State is Law (Jerusalem: Jerusalem Academic Press, 1974) 85–87 [Hebrew]Google Scholar; and b. ‘Abod. Zar. 29b.
6 For some details, see Jackson, Bernard S., Wisdom-Laws: A Study of the Mishpatim of Exodus 21:1–22:16 (Oxford: Oxford University Press, 2006) 313–21Google Scholar. In v. 34 (and below) I use “pit-opener” rather than “owner of the pit,” for it obviously refers to the people mentioned in v. 33; see Jackson, 314–15.
7 For this argument, see Schwarz, Adolf, Die Tosifta des Traktates Nesikin. Baba Kamma (Vienna: Israelitisch-Theologische Lehranstalt, 1912) 55 n. 138 [Hebrew]Google Scholar.
8 For the general tendency of Jewish law to limit tort liability and, in that connection, for a discussion of the Talmud's view of contributory negligence as nullifying liability, see Friedell, Steven F., “Some Observations on the Talmudic Law of Torts,” Rutgers Law Journal 15 (1983/1984) 897–925Google Scholar, esp. 917–24. Cf. the maxim in m. B. Qam. 1:2: “If I made part of the damage possible, I am liable for payment as if I made it all possible”; when applied to the victim of a tort who was himself negligent, this relieves the tortfeasor of liability. Similarly, English common law refused to impose any liability upon tortfeasors in such cases; see Fleming, John G., The Law of Torts (8th ed.; Sydney: Law Book Company, 1992) 268–70Google Scholar.
9 Maimonides, Mishneh Torah, Hilkhot Nizqei Mamon 12:16. For the equivalence of pits and impediments, see below, n. 37.
10 Albeck, Shalom, General Principles of the Law of Tort in the Talmud (Tel Aviv: Dvir, 1965) 75 [Hebrew]Google Scholar. On our law, see also ibid., 152–53, 200. For a briefer treatment of the topic in English, as it applies to pit-falling (but without reference to our law), see idem, “Avot Nezikin,” EncJud 3 (corrected ed., 1972) 988.
11 As to why rabbinic law did not go all the way with the tendency discussed in n. 8 and exempt the pit-opener even for the death of subnormal animals whose owners failed to supervise them sufficiently, one simple explanation is that such a step would have left the biblical law a totally dead letter.
12 Maimonides, Mishneh Torah, Hilkhot Nizqei Mamon 12:16 = Shulḥan Arukh, Ḥoshen mishpaṭ 410:19.
13 Note that a modern paraphrase of the Shulḥan Arukh, although very detailed, renders this law by distinguishing between “young” animals and “normal, grown” animals, thus sidestepping any specification of what “normal” excludes and avoiding such incredulous or amused reactions. See Quint, Emanuel B., A Restatement of Rabbinic Civil Law (11 vols.; Jerusalem: Gefen, 1990–2007) 10:73Google Scholar.
14 As Schwarz wryly commented, in rejecting the talmudic interpretation of our mishnah: “Whatever one thinks about oxen, no one could possibly imagine making such distinctions about asses!” (Tosifta des Traktates Nesikin, 55 n. 138). Note also David Weiss Halivni's comment, concerning the Talmud's explanation of our mishnah: “Nowhere else do we find an ox termed a ben daʿat” (Sources and Traditions: A Source Critical Commentary on the Talmud; Tractate Baba Kama [Jerusalem: Magnes, 1993] 221 n. 8 [Hebrew]).
15 “An ox that is deaf-mute, imbecilic, or underage is not wont—since it is not an intelligent being (ben daʿat)—to watch or check where it is going, and therefore the pit-opener is liable” (Meiri, Menahem [d. 1316], Beth Habehira on the Talmudical Treatise Baba Kamma [ed. Schlesinger, Kalman; 5th ed.; Jerusalem: Mosad Harav Kook, 1971] 163–64 [Hebrew]Google Scholar).
16 For medieval discussions of related terms, see Septimus, Bernard, “What did Maimonides Mean by Maddaʻ?,” in Meʾah Sheʿarim: Studies in Medieval Jewish Spiritual Life in Memory of Isadore Twersky (ed. Fleischer, Ezraet al.; Jerusalem: Magnes, 2001) 83–110Google Scholar.
17 See, in general, Zohar, Noam, “Animals as Moral Personae: The Secret of the Laws of the Stoned Ox,” in Rabbinic Thought: Proceedings of the First Conference on “Mahshevet Hazal” Held at the University of Haifa, 7 Dec. 1987 (ed. Hirshman, Marc and Groner, Tsvi; Haifa: University of Haifa, 1989) 67–83, esp. 74–83 [Hebrew]Google Scholar. There are, of course, legal proceedings to determine whether an animal is violent and should be put to death; this is probably assumed by Exod 21:28–32 and is explicit in m. Sanh. 1:4. By way of comparison, see Plato, Leg. 9.873e–874a; Raphael Sealey, “Aristotle, Athenaion Politeia 57.4: Trial of Animals and Inanimate Objects for Homicide,” CQ 56 (2006) 475–85, esp. 481–84; and Edward Parson Evans, The Criminal Prosecution and Capital Punishment of Animals (1906; repr., London: Faber and Faber, 1987). However, recognition that animals may be dangerous does not imply that they may have intelligence or undertake legal responsibility for their actions. Nor are such conclusions implied by midrashic discussions of sinful animals (running counter to the basic legal position of the Mishnah, that animals cannot sin; m. Sanh. 7:4), on which see Aptowitzer, Victor, “The Rewarding and Punishing of Animals and Inanimate Objects: On the Aggadic View of the World,” HUCA 3 (1926) 117–55Google Scholar; and Lawee, Eric, “The Sins of the Fauna in Midrash, Rashi, and Their Medieval Interlocutors,” JSQ 17 (2010) 56–98Google Scholar.
18 That the Tannaim used ḥeresh in the sense of “deaf-mute” is explicit in m. Ter. 1:2. For the ancient assumption (abandoned in modernity with the development of new devices and pedagogy) that such people can neither be taught nor voice their own questions and are therefore on a legal par with the other two types listed here, see Feldman, David M., “Deafness and Jewish Law and Tradition,” in The Deaf Jew in the Modern World (ed. Schein, Jerome D. and Waldman, Lester J.; New York: New York Society for the Deaf, 1986) 12–23Google Scholar; and Marx, Tzvi C., Disability in Jewish Law (Jewish Law in Context 3; London: Routledge, 2002) 114–27CrossRefGoogle Scholar. See already Isa 6:10 // Acts 28:27 and Olyan, Saul M., Disability in the Hebrew Bible (Cambridge, U.K.: Cambridge University Press, 2008) 35, 110–11CrossRefGoogle Scholar.
19 See, for example, m. ʿArak. 1:1 (these three “have no intelligence”) and m. Ṭehar. 8:6 // m. Makš. 6:1 (they are “capable of deed but not of thought”), along with Abrams, Judith Z., Judaism and Disability (Washington, D.C.: Gallaudet University Press, 1998) 168–90Google Scholar; and Moscovitz, Leib, “‘The Actions of a Minor are a Nullity’? Some Observations on the Legal Capacity of Minors in Rabbinic Law,” JLA 17 (2007) 63–120Google Scholar. Note that in this paper I use “deaf-mute, imbecilic, or underage” to reflect the adjectival usage with regard to animals, and “a deaf-mute, imbecile, or minor” to reflect the usage as substantives, of people.
20 In y. B. Qam. 5:6[9], 5a, this interpretation is ascribed to R. Eleazar (b. Pedat). Since he was R. Johanan's “colleague and disciple” (y. Sanh. 1:1, 18b [top]) and frequently reported his teachings (see the story at y. Ber. 2:1, 4b // b. Yebam. 96b and Jacob Nahum Epstein, Introduction to the Mishnaic Text [3rd ed.; 2 vols.; Jerusalem: Magnes, 2000] 1:292 [Hebrew]), and since my study focuses on the Babylonian Talmud, for simplicity's sake I will refer to it as R. Johanan's opinion.
21 Strangely, Schwarz assumed that R. Johanan limits the law too to the three exceptional cases (Tosifta Baba Kamma, 55 n. 138). I see no basis for that.
22 R. Jeremiah lived in Tiberias not long after R. Johanan and, inter alia, passed on his traditions. See Albeck, Chanoch, Introduction to the Talmud, Babli and Yerushalmi (Tel Aviv: Dvir, 1969) 340–42 [Hebrew]Google Scholar.
23 For the argument that R. Jeremiah's explanation of R. Johanan's interpretation constitutes the true meaning of the mishnah, see Dünner, Joseph Zvi (Hirsch), Neziqin (vol. 3 of Ḥiddushe Haritsad; Jerusalem: Mosad Harav Kook, 1989) 59 [Hebrew]Google Scholar; and Levine, Howard I., Studies in Talmudic Literature and Halakhic Midrashim (ed. Gilat, Yitzhak D.; Ramat Gan: Bar-Ilan University, 1987) 157–59 [Hebrew]Google Scholar. Levine holds that this was also assumed in the Palestinian Talmud and in the Mekilta of R. Shimon bar Johai.
24 Compare two cases: concerning the rule that touching sacred Scripture makes one's hands impure, m. Yad. 4:8 notes that original texts, even if they are in Aramaic (such as Daniel 2–7), impart such impurity, but translations, even if they are in Hebrew (translations of originally Aramaic passages, such as those in Daniel and Ezra), do not; and concerning the requirement that a bill of divorce be delivered to the wife (Deut 24:1), m. Giṭ. 8:1 rules that the delivery is valid if the document is thrown to her when she is in her own house even if it lands in such an external part of her house as its yard, but it is not valid if thrown to her when she is in her husband's house even if it lands very close to her (“next to her in bed”).
25 I assume, given the juxtaposition with slaves, that the “son or daughter” (= boy or girl) mentioned here are not infants; see below, n. 30.
26 Neusner, Jacob, The Mishnah: A New Translation (New Haven, Conn.: Yale University Press, 1988) 515Google Scholar; and idem, A History of the Mishnaic Law of Damages (5 vols.; SJLA 35; Leiden: Brill, 1983–1985) 1:74. His only comment on this mishnah is that it is “clear as given and requires little comment” (ibid.).
27 Although some texts of m. B. Qam. 4:4 read 
, numerous witnesses omit 
, as does the parallel at t. B. Qam. 4:4 (ed. Lieberman [see below, n. 51], 15). See Epstein, Introduction, 1:305. For other clear cases of 
in status constructus, see m. Šebu. 6:4 and m. Giṭ. 5:8.
28 Compare, for example, the avoidance of pronouns by the rabbis’ modern colleagues: “[Legal] draftsmen never use anaphoric links between sentences, and are prepared to put up with the repetitiveness that results. . .. And in environments in which even the most bizarre misreading would be unlikely to find an undesirable meaning, the lexical item is solemnly repeated” (Crystal, David and Davy, Derek, Investigating English Style [London: Longmans, Green and Co., 1969] 202Google Scholar).
29 For the inclusion of our case in a long list of passages in which the Mishnah is implicitly interpreting biblical verses although not formally quoting them, see Epstein, Introduction, 2:1132.
30 Walter Windfuhr, Baba Qamma (“Erste Pforte” des Civilrechts) (ed. Georg Beer and Oskar Holtzmann; Die Mischna 4.1; Gießen: Töpelmann, 1913) 43 (“Fällt ein Rind, ein Taubstummer, ein Geisteskranker oder ein Minderjähriger hinein”). This translation, which imposes liability for the death of a pit-falling minor but not for that of “a son or a daughter,” works best according to Windfuhr's suggestion, in his translation and commentary that the Mishnah distinguishes between a very young child (here called qatan, “a minor”), for whom there is liability, and an older child (here called “son or daughter”), who has enough understanding to avoid pits; compare m. Sukkah 2:8, which contrasts the qatan, simpliciter, to an older “qatan who does not need his mother.” For the distinction between minors “with” and “without” intelligence, see also m. Parah 12:10 and y. Maʿaś. Š. 4:4, 55a, and note m. Giṭ. 5:7–8 and m. Nid. 5:6: some minors are old enough for their purchases and vows to be binding. On such texts, and on later attempts to systematize the distinctions, see Moscovitz, “Actions of a Minor,” 87–109, 118–20.
31 For ancient rabbinic insouciance about dealing with notionally inferior people in the same text as animals, and even in the same breath, compare, for example, m. Qidd. 1:1–5 (“a woman is acquired . . . a Hebrew slave is acquired . . . a Canaanite slave is acquired . . . cattle are acquired . . . real estate is acquired”) and y. Demai 6.3, 25c (“if one sells to another the tithes of his field, or his maidservant's babies, or his animal's unborn fetuses, the sale is of no effect”).
32 R. Ḥananel b. Ḥushiel of Kairouan, commentary on b. Šabb. 153a (printed in the standard Vilna edition of the Babylonian Talmud).
33 On the arrangement of the laws in Exod 21:12–22:16 according to a matrix that distinguishes between perpetrators and victims according to whether they are people or property, see Paul, Shalom M., Studies in the Book of the Covenant in Light of Cuneiform and Biblical Law (VTSup 18; Leiden: Brill, 1970; repr., Eugene, Ore.: Wipf and Stock, 2006) 106–11Google Scholar; and Finkelstein, J. J., The Ox That Gored (Transactions of the American Philosophical Society 71.2; Philadelphia: American Philosophical Society, 1981) 25, 37Google Scholar.
34 Philo, Spec. Laws 3.147–148 (he states that the law requires compensation for the death of pit-falling cattle but only allows suits in case of people); Josephus, Ant. 4.283–284 (although he states that those who open pits are required to close them so that people will not fall in, he mentions compensation for dead animals only).
35 I add that qualification in deference to the mishnaic law (B. Qam. 3:1) that imposes, upon those who dig small pits or leave small objects in the public domain, liability for damage to passers-by, for it is presumed that people often do not notice such small things and therefore those who leave them are responsible. But people are expected to see deep pits and avoid them.
36 See, e.g., Meir Simḥah Hacohen (d. 1926) on Exod 21:33: “The rule (that there is liability for) an ox but not for a person . . . is a rational matter, for a person is intelligent enough to protect himself from a pit that is capable of killing a person” (Meshekh Ḥokhmah [3 vols.; 3rd ed.; Jerusalem: Frank, 1996/1997] 1:189–90 [Hebrew]). For medieval formulations of this logic, see Albeck, General Principles, 153. For a formulation in terms of the “duty of due care” (Fleming, Law of Torts, 135–90), see Avishalom Westreich, “Hermeneutics and Developments in the Talmudic Theory of Torts as Reflected in Exceptional Cases of Exemption” (Ph.D. diss., Bar-Ilan University, 2007) 245–46 [Hebrew].
37 See m. B. Qam. 5:5: “No matter whether he digs a pit, trench or cavern or ditches or channels, he is liable”; also ibid. 1:1 (where a “pit” is a stationary danger in the public domain) along with b. B. Qam. 3a (to the effect that people who leave such things as stones, knives, and luggage in the public domain are considered to be pit-openers).
38 M. B. Qam. 5:7: “There is no difference between an ox and any other type of animal with regard to pit-falling . . . so why does it say ‘an ox or an ass’? Because Scripture speaks of common cases.” Compare, for example, the decisions of British courts to extend to workers in hotels and film studios rights granted by law to workers in “shops” and “factories,” respectively, although in common usage neither term is used of such a workplace (see Cross, Rupert, Statutory Interpretation [ed. John Bell and George Engle; 3rd ed.; London: Butterworths, 1995] 120Google Scholar) and a 1989 decision by a U.S. Circuit Court of Appeals (Hasbro Industries, Inc. v. U.S., 879 F.2d 838 [Fed.Cir. 1989]) that an importer must pay the duty assessed for “dolls” for “G.I. Joe Action Figures,” although in common usage they are not called “dolls.”
39 On such generalizing conceptualization of the particulars mentioned in biblical law, see Moscovitz, Leib, Talmudic Reasoning: From Casuistics to Conceptualization (TSAJ 89; Tübingen: Mohr Siebeck, 2002) 37–38, 161–62Google Scholar; and Rubenstein, Jeffrey L., “On Some Abstract Concepts in Rabbinic Literature,” JSQ 4 (1997) 33–73, esp. 67–69 on pitsGoogle Scholar.
40 We may leave aside the question whether that liability entailed compensation (and what compensation might have been thought appropriate for the death of an economically worthless person) or, rather, only moral guilt.
41 Although at times there is room to suspect that a text cited in the Talmud as a baraita is in fact of amoraic origin (Goldberg, “The Babylonian Talmud,” 334–35), the tannaitic origin of the third is guaranteed by the appearance of a parallel in the Tosefta (see below, n. 50). As for the first two, I assume that they too are of tannaitic origin (whatever editing they later underwent, as we shall see), not only because they are cited as such (tanya) but also because, like the third baraita, they too stand in the way of the conclusion the Talmud strives to establish, so it is likely that they were inherited from an earlier era.
42 In m. B. Qam. alone, adam appears fifteen times.
43 For the text (some witnesses omit the conjunction between the two, while many others include it), see Epstein, Introduction, 2:1061.
44 For similar cases see, for two examples, m. Yebam. 11:5, where 
means “women who are allowed to marry priests,” and m. Mak. 3:1, where 
means “a widow who is divorced.” See also Epstein, Introduction, 2:1076–1110, esp. 1090, on cases such as the variation among witnesses to m. Qidd. 3:13 (
and 
) and various texts where witnesses offer both 
and 
, although in both cases clearly only one person is meant.
45 As noted by Halivni, Sources and Traditions, 221. See esp. Moshe Azar, The Syntax of Mishnaic Hebrew (Jerusalem: Academy of the Hebrew Language and University of Haifa, 1995) 273–74 [Hebrew] on the “relative vav, which opens a limiting relative clause that limits the extent of the preceding noun.”
46 See n. 14 above.
47 As Raphael Rabbinovicz pointed out in his Diqduqei Soferim ad loc.: Variae lectiones in Mischnam et in Talmud Babylonicum (16 vols.; Munich: Huber, 1867–1897) 12:116–17 n. 50 [Hebrew]. The data were kindly confirmed for me in September 2009, by the librarian of the Complete Israeli Talmud at Yad Harav Herzog in Jerusalem, David Aronovsky (who uttered an Israeli equivalent of “wow” when he saw, in the project's archives, the full documentation of this discrepancy between the manuscripts and the printed versions). The Florence, Hamburg, and Munich manuscripts, which read 
, may easily be viewed at http://jnul.huji.ac.il/dl/talmud/. Printed editions that give the “corrected” version include the first two: Soncino 1490 and Venice 1520/1521 (kindly checked for me, respectively, by Vered Noam and Harry Fox); the latter edition may well have been based directly upon the former (see Marvin J. Heller, “Earliest Printings of the Talmud,” in Printing the Talmud: From Bomberg to Schottenstein [ed. Sharon Liberman Mintz and Gabriel M. Goldstein; New York: Yeshiva University Museum, 2005] 61–78, at 74). Note that by “clarifying” that the second baraita refers to normal animals, the corrector(s?) made the third baraita (cited in § 8) superfluous.
48 Hauptman, Judith, Development of the Talmudic Sugya: Relationship between Tannaitic and Amoraic Sources (Studies in Judaism; Lanham, Md.: University Press of America, 1988) 167–68Google Scholar. So too Halivni, Sources and Traditions, 221. Hauptman also argues (ibid.) that had § 8's version of the latter part of this baraita been authentic, it would have precluded the contrary suggestions made by Amoraim earlier in the discussion. Levine too argues that the material in § 8 is secondary, even suggesting that the Rava mentioned there is not (as is usually assumed) the well-known fourth-century Amora but, rather, a later, Saboraic, sage (Studies in Talmudic Literature, 158). More generally, see also Hauptman, Talmudic Sugya, 217: she reports that such editing of baraitot on the basis of amoraic statements is demonstrable in twenty-seven of 100 cases she studied and is probable in many others too. For a later study that demonstrates in detail that the Babylonian Talmud frequently edited baraitot to conform to its needs, see Shamma Yehuda Friedman, “The Baraitot in the Babylonian Talmud and Their Relation to the Parallels in the Tosefta,” in Atara L'Haim: Studies in the Talmud and Medieval Rabbinic Literature in Honor of Professor Haim Zalman Dimitrovsky (ed. Daniel Boyarin et al.; Jerusalem: Magnes, 2000) 163–201 [Hebrew]. For an additional case of this in b. B. Qam., see Noam, Vered, “‘The Later Rabbis Add and Innovate’: On the Development of a Talmudic Sugya,” Tarbiz 72 (2002/2003) 151–75, esp. 168 n. 67 [Hebrew]Google Scholar.
49 I have inserted this “or,” as it seems to be required; in the talmudic version of this baraita (§ 8), it indeed appears.
50 Tosephta Based on the Erfurt and Vienna Codices with “Supplement to the Tosephta” by S. Lieberman (ed. Moses Samuel Zuckermandel; 2nd ed.; Jerusalem: Bamberger and Wahrmann, 1937) 355. This is the text quoted by Hauptman, Talmudic Sugya, 167.
51 Order Nezikin (unnumbered volume of The Tosefta; ed. Saul Lieberman; New York: Jewish Theological Seminary of America, 1988) 23. The same text appears in the Tosefta supplied in the back of the standard Vilna edition of the Babylonian Talmud.
52 See Lieberman's brief note to line 28 in his edition cited in the preceding note, as well as his longer comment in the companion volume: idem, Parts IX–X: Order Nezikin (unnumbered volume of Tosefta Ki-Fshuṭah; New York: Jewish Theological Seminary of America, 1988) 54, note on lines 27–28 [Hebrew].
53 See, for example, on t. B. Qam. 7:18, Lieberman, Parts IX–X: Order Nezikin, 78, note on lines 87–89: “And it is most likely that this was emended in accordance with the Babylonian Talmud, as is usual in this manuscript.” On this widespread phenomenon in ms Erfurt, with numerous references to Lieberman's own findings (including the one just now cited), see Sussmann, Yaakov, “The Ashkenazi Yerushalmi MS–‘Sefer Yerushalmi’,” Tarbiz 65 (1995/1996) 37–63, at 61–62 n. 166 [Hebrew]Google Scholar; and Schremer, Adiel, “The Text-Tradition of the Tosefta: A Preliminary Study in the Footsteps of Saul Lieberman,” Jewish Studies, an Internet Journal 1 (2002) 11–43, at 14 n. 10 [Hebrew]Google Scholar, http://www.biu.ac.il./JS/JSIJ/1–2002/Schremer.pdf. See also Friedman, Shamma, Tosefta Atiqta Pesaḥ Rishon: Synoptic Parallels of Mishna and Tosefta Analyzed with a Methodological Introduction (Ramat Gan: Bar-Ilan University, 2002) 79–86 [Hebrew]Google Scholar.
54 For special discussions of our mishnaic text, apart from the commentaries, see above, n. 23.
55 The inclusion of an ox at the head of this list of three people poses a problem for this interpretation, for the preceding clause of the Mishnah assumes liability for pit-falling oxen so there is no need to repeat that here. To deal with that we would either simply accept the pedantic repetition, or interpret it as the author's way of clarifying that the category has to do with lack of intelligence, or imagine a source-critical solution (the text was imported from elsewhere without coordination with the new context) or text-critical solution (the word 
[“ox”] at the head of the list was added secondarily). With regard to the last possibility, note that the text of the Mishnah in ms Munich 95 omits the word, although the talmudic discussion there assumes it.
56 See above, n. 30.
57 Such as b. Sukkah 33a, “a booth—of which it is written you shall make (one), not (use) one that is already made”; and b. ʿAbod. Zar. 54a, “when Scripture specified and he shall live by them and not die by them.” In these cases only the italicized words are actually in the Bible (Deut 16:13 and Lev 18:5, respectively), but in citing what is “written” the Talmud, whether oral or written, does not distinguish at all between text and interpretation.
58 Goldberg, Abraham, Tosefta Bava Kamma: A Structural and Analytic Commentary with a Mishna-Tosefta Synopsis (Jerusalem: Magnes, 2001) 125 [Hebrew]Google Scholar. Note that the other three times the rule appears in b. B. Qam., it is complemented by yet another literalist exclusion: “‘An ass’ and not its kelim” (trappings or containers, i.e., things it bears). As Goldberg and others note, tannaitic sources do include something similar to the second half of that amoraic rule: if an animal falls into a pit and its trappings were torn or the vessels it was carrying broke, there is liability only for the animal, not for what it had borne. Whatever the reason for that law (probably resistance to imposition of all the onus on one side; see above, nn. 7–8), and whatever its extent (does it deny liability even when only the burden was damaged?), when the Talmud juxtaposed to it the denial of liability for the death of any person (which derived from a totally different consideration: people can and should watch their steps), the result was a natural tendency to assume that both derive from the same reason. For details of this process, see Westreich, “Hermeneutics and Developments,” 243–58. That shared reason could only be either the simple fact that Scripture mentions neither people nor burdens, or, perhaps—as is explicit in t. B. Qam. 6:14 (ed. Lieberman [above, n. 51], 23)—the inference, from the fact that broken vessels cannot be used just as human corpses may not be used (see above, n. 5), that the existence of a rule in Exod 21:34 about the disposition of what remains after the fall means the law of pit-falling does not apply to vessels just as it does not apply to people. Neither of these shared explanations suggests any reason to distinguish between people with and without intelligence.
59 See de Vries, Benjamin, Studies in the Development of the Talmudic Halakah (2nd ed.; Tel Aviv: Zioni, 1966) 69–95 [Hebrew]Google Scholar; Gilat, Yitzhak D., Studies in the Development of the Halakha (Ramat Gan: Bar-Ilan University, 1992) 239–48, 279–80 [Hebrew]Google Scholar.
60 Gilat, Studies in the Development, 191–204; Hayes, Christine, “The Abrogation of Torah Law: Rabbinic Taqqanah and Praetorian Edict,” in The Talmud Yerushalmi and Graeco-Roman Culture (ed. Schäfer, Peter; 3 vols.; TSAJ 71, 79, 93; Tübingen: Mohr Siebeck, 1998–2002) 1:643–74Google Scholar. Cases of this type are cited above, at nn. 4–5.
61 Albeck, Chanoch, The Mishnah: Seder Nezikin (Jerusalem: Mosad Bialik, 1988) 463 [Hebrew]Google Scholar.
62 See especially Shelomo Naeh, “A Study of m. Makkot 1:4–6 and Its Talmud,” in Netiʿot Ledavid: Jubilee Volume for David Weiss Halivni (ed. Yaakov Elman, Ephraim Bezalel Halivni, and Zvi Arie Steinfeld; Jerusalem: Orhot, 2004) 109–25, at 123–24 n. 38 [Hebrew].
63 See, for example, b. Mak. 5b (the text on which Naeh's study focuses). On this rule (
) and its ramifications, see Encyclopedia Talmudica (6 vols. to date; Jerusalem: Yad Harav Herzog, 1969–) 2:111–18. Note that the rule apples especially to penalties because in imposing them society undertakes to encroach upon an individual's rights and/or property—something for which a very solid foundation is required. Similarly, British common law demands that not only penal statutes but also tax statutes be interpreted narrowly, which means that demands cannot be made unless the law states them explicitly; see Dworkin, Gerald, Odgers’ Construction of Deeds and Statutes (5th ed.; London: Sweet and Maxwell, 1967) 366, 464Google Scholar.
64 On the tension, for the interpreters of law, between adherence to a law's purpose and adherence to its text, see, in general, Popkin, William D., Statutes in Court: The History and Theory of Statutory Interpretation (Durham, N.C.: Duke University Press, 1999Google Scholar). For a classic discussion, see Frankfurter, Felix, “Some Reflections on the Reading of Statutes,” Columbia Law Review 47 (1947) 527–46CrossRefGoogle Scholar.
65 A conclusion that has everything to do with correcting misunderstandings of the term soferim (scribes) and the verb darash, along with the pervasive German mistranslation of hakhamim (sages) as Schriftgelehrte. See Mandel, Paul, “Scriptural Exegesis and the Pharisees in Josephus,” JJS 58 (2007) 19–32CrossRefGoogle Scholar, and, in general, his forthcoming Text, Law, and the Origins of Midrash.
66 Shemesh, Aharon, “The Development of the Terms ‘Positive’ and ‘Negative’ Commandments,” Tarbiz 72 (2002/2003) 133–50 [Hebrew]Google Scholar. As Shemesh shows, this change resulted in the proliferation and articulation of law.
67 See Gilat, Studies in the Development, 280.
68 See Henschke, David, “Abbaye and Rava: Two Approaches to the Mishna of the Tannaim,” Tarbiz 49 (1979/1980) 187–93 [Hebrew]Google Scholar. As Henschke phrases the matter (in the English abstract, p. x), the issue is whether the Mishnah is “merely a receptacle for halakhic material” or rather “a sanctified text which may be submitted to exegesis.”
69 On such (re)turns from traditional behavior to the demands of the biblical text and on what they entail see Adiel Schremer, “‘[T]he[y] did not read in the sealed book’: Qumran Halakhic Revolution and the Emergence of Torah Study in Second Temple Judaism,” in Historical Perspectives: From the Hasmoneans to Bar Kokhba in Light of the Dead Sea Scrolls; Proceedings of the Fourth International Symposium of the Orion Center for the Study of the Dead Sea Scrolls and Associated Literature, 27–31 January, 1999 (ed. David Goodblatt, Avital Pinnick, and Daniel R. Schwartz; STDJ 37; Leiden: Brill, 2001) 105–26. Schremer builds on the observations on modern Jewish Orthodoxy offered by Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,” Tradition 28 (1994) 64–130.
70 This may have entailed adding an explicit reference to the ox; see above, n. 55.
71 For the suggestion that Palestinian literature indeed took that position, see above, n. 23.
72 See Albeck, Introduction, 443, where it is noted that all of his statements in the Talmud are, as in our case, questions he posed to Rabina.
73 What follows is my expansive translation of the text given in the critical edition: Talmud Bavli: Massekhet Bava Qamma, With Hebrew Translation and a New Commentary, Variant Readings, and References (ed. Ezra Zion Melamed; Jerusalem: Dvir, 1952) 86 [Hebrew]. Within square brackets I have added explanatory comments. The translation and explanations follow the sense of the discussion as it is now, without reference to what elements may once have meant, as discussed in the body of this article. The three baraitot quoted in §§ 4, 7–8 are the focus of the discussion in part 2a.
74 The words “of Diphti” appear in numerous manuscripts. On him, see above, n. 72.
75 On the text see above, at n. 47. On the translation, see part 2a.
