From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in Its Legal and Social Contexts by Jonathan S. Milgram (review)

Abstract

Reviewed by: From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in Its Legal and Social Contexts by Jonathan S. Milgram Shaye J. D. Cohen Jonathan S. Milgram. From Mesopotamia to the Mishnah: Tannaitic Inheritance Law in Its Legal and Social Contexts. Texts and Studies in Ancient Judaism 164. Tübingen: Mohr Siebeck, 2016. xxi + 201 pp. doi:10.1017/S0364009418000569 The argument of this book is threefold. First, the inheritance laws assumed or stated by the Mishnah differ in numerous ways from the inheritance laws [End Page 447] assumed or stated in the Torah. In fact, the Mishnah and Talmudim do not even pretend that the two sets of laws are identical. Second, the laws of the Mishnah differ from the laws of the Torah in part because the social structure of the family had changed over the centuries. (The Mishnah assumes the nuclear family, while biblical literature presumes the bet ʾav, the extended family.) Third, another potential source of the contrast between the biblical laws and the mishnaic laws is the influence of ancient law and legal formulary (Mesopotamian and Near Eastern, which themselves probably influenced Torah law, as well as Greek, Roman, etc.) on the Mishnah. The author frequently hesitates between the second and the third possibilities: Is the Mishnah's departure from the Torah the result of changed social and economic circumstances or the result of outside influences, or some combination of the two? Among the legal changes between the Torah and the Mishnah are the following: there is no sign in the Bible that women can own land (Numbers 27:1–11 and Joshua 15:16–19 are not exceptions), but in the Mishnah they can (under certain circumstances); the Torah demands endogamy within the tribe for inheritance, but the Mishnah does not; in the Torah the firstborn son receives a double share of the inheritance, but the Mishnah often assumes other ways of distributing the parental estate; the Mishnah knows testate succession (the appointment of an heir), but it is not clear whether the Torah does so; the Tannaim debate the possibility of inheritance (or some equivalent legal process) by a daughter and by a wife, possibilities that are unknown to the Bible. Perhaps the most interesting and important conclusion to emerge from the book is that tannaitic legislation about inheritance and succession seems to have its closest affinities with Roman law and legal terminology. Thus, the distinction between gifting and bequeathing, or between receiving a gift and inheriting, is central to both Roman law, which distinguishes donatio from hereditas, and mishnaic law, which distinguishes actions denoted by words from the root n-t-n from actions denoted by words from the root y-r-sh. Milgram is careful not to speak glibly about "influence," but he is also careful not to exclude the possibility. The book's strengths are many. It is thoroughly researched and clearly argued. The varied topics are laid out in an accessible manner. Technical terms are explained. The bibliography is full and up to date. The author's obvious expertise in the Mishnah and mishnaic law (he is an associate professor of Talmud and rabbinics at the Jewish Theological Seminary) is enriched by expertise in many other legal systems of antiquity. The book is a learned, sophisticated, and historically informed analysis of mishnaic inheritance law. All in all, it is safe to say, this book is now the standard study of its subject. I have one complaint and I regret closing this review on a negative note. The author, for all of his erudition and methodological sophistication, titles his conclusion "How Jewish Is Jewish Inheritance Law?" What he should have said is "How biblical is rabbinic inheritance law?" That question is addressed by the book on nearly every page, and the answer to that question is easy: not biblical at all. The author confuses matters by introducing "Jewishness" into the calculus, as if he or anyone else for that matter (other than a prophet who speaks directly with the Lord) can definitively determine what is Jewish and what is not. A historian [End Page 448] can tell us what Jews did and thought, but a historian cannot determine levels of...