Tuesday, February 24, 2009

Introduction to the Oral Law Part 1 (Aish Style)

PDF 151

Rabbi Mordechai Becher of Gateways was recently at Stern and gave a lecture instructing students in how to answer questions regarding the Oral Law. Above please see the sheet he handed out to all of us (complete with my notes) and below, please see my comments elaborating upon the ideas he mentioned.

1. How do we know the Oral Law is there? Why do we need it?

a) The Torah is not the Bible, in that it is not simply the Old Testament portion of the Christian bible. It is far more vast, and far more expansive than that.

b) We know that we have an Oral Law because we have a certain system of translation and interpretation regarding the very words of the Written Law. The Written Law is in Hebrew, and it is written in Torah scrolls without vowels or punctuation. Therefore, when one encounters certain words, such as for example chlv, that means they can either be read as chalav (milk) or cheilev (fat). Our Oral Law elaborates upon these words and gives us the correct punctuation/ interpretation/ reading. This is one of the ways in which we see the Oral Law clearly working in tandem with the Written Law.

c) Have you ever learned to swim from a book? No, you probably did not. You learned how to swim in a hands-on situation, where you were actually in the water, with someone instructing you what to do. Rabbi Becher makes the point that there was actual practical hands-on material that was taught to people via the Oral Law as opposed to being written down because that is simply a better method of transmission.

d) There are certain words used throughout the Written Torah that are not explained/ elaborated upon. These include words like "work, affliction, life, slaughter" and suchlike. What do these words actually mean? One is meant to "afflict oneself" on Yom Kippur. Does it mean we should sit on thumbtacks while listening to opera music? What's the legal definition of affliction? These words are explained and elaborated upon in the Oral Law.

e) Thus it follows that since Written Law is incomprehensible in and of itself (after all, what does "work" or "affliction" mean) it would make sense the author of the work would also provide the explanations. That is the Oral Law.

f) Rav Samson Raphael Hirsch states in his Commentary on Exodus 21:2 that the Oral Law is like the actual lecture given by a professor or teacher while the Written Law is like lecture notes. If you simply read the lecture notes, you are not necessarily going to understand the material in the way you would if you attended the lecture. For example, when we write Chemistry notations we use shorthand. Au stands for gold, and Na for yet another substance. Now, if an English major comes over and tries to read your notes, which say things to the equivalent of Au, NaCl and so forth, she won't understand the material until you explain the code.

2. Why not write it all down? What is the advantage of an Oral Law?

a) Do physicians learn how to become doctors due to their years of medical school, or because of on-the-job experience, where the material is transmitted from actual doctors making diagnoses and suchlike? Generally, the on-the-job experience is more valuable. Similarly, the Oral Law as a method of oral transmission is simply the form better suited to transmitting this information.

b) The Written Torah is like a compressed zip file while the Oral Law unzips it. Therefore, the Written Law is very portable and compact, and everything can be derived from it; that's easier than writing down all the Oral Law and carrying that around, too.

c) The written word is easily stolen, distorted or changed (just look to the other religions that base themselves on the Torah.) If one has an Oral Law, it is harder to steal, change or adapt.

d) An Oral Law, due to the fact that it is oral as opposed to written, has to be studied because it only exists in our hearts and minds. If we do not study it, it will be forgotten. Therefore, this creates an incredible study ethic in the Jewish people as a whole.

e) The fact that this is an Oral tradition means that one cannot simply open up a book and study for oneself, but must come into contact with the actual symbols of the transmission of the law; there is a need for personal contact with the transmitters of tradition.

f) The Oral Law means that one cannot simply open up the Written Law, look at it for 10 minutes, and then assume that one understands it completely. The Oral Law requires effort; it is difficult to master, and therefore we are anti-superficiality and superficial understandings of the text. We must actually exert ourselves in order to reach the truth. "Thou shalt think."

g) Feedback mechanism- When one learns the Oral Law, this allows for question/ answer discussions where questions are valued, as opposed to merely memorizing a rulebook.

h) There was a Tai Chi master who was swaying, his arms moving and slapping lightly against his sides. Why? Because if someone were to push him, he would sway and turn, instead of standing strong against the push, which would then topple him. The idea is to "change enough to stay the same." When it comes to the flexiblity of halakha in the Oral Law, we change enough to stay the same. (For example, the law is that we cannot kindle fire, and we adapt that to our times by not using electricity on Shabbat- that is changing enough to stay the same.)

3. Maybe the message was distorted? What about Broken Telephone?

a) If there were simply one person transmitting the message, perhaps you would have a point. However, imagine this scenario. You have ten groups, and the teacher whispers in a student's ear (of each of the ten groups) the words "ABCD." Now, the first boy has only ever heard the word "ADHD" so assumes that is what was said. The second has parents who are into rock so he hears "AC/DC." The third is Israeli and hears "AB3D." But if all the separate groups compare their chains, 6 out of 10 groups will have heard A for the first letter, 8 out of 10 B, and so forth, so they will be able to piece back what the original message was. So too, we have thousands of chains for our tradition- every individual, family and community is a testament to that- so it is far more likely we have it right than wrong.

b) Message ingrained in receiver since cradle (we grow up in Jewish houses, hear Torah since the time we are born)

c) Logical system can be reconstructed using its rules- the Oral Law could be reconstructed if necessary off of the Written Torah

d) If it's important/ integral to you, you won't mishear. If someone calls you up and gives you a very important stock tip, you won't mishear the stock name. If the Torah is important to you, you won't lose the message.

e) There are plenty of written references to the Oral Law, whether it be the Torah, Prophets and Writings or the private notes students took at lectures (even though there was no official edition, students were allowed to take notes on the material taught when it comes to the Oral Law.) In Ezekiel, for instance, the prophet references the laws of mourning. Also, mikvas were discovered on Masada that were built 300 years before the Mishna was written down and were constructed almost exactly the same way as our modern-day mikva would be.

f) Review, mneumonic devices and rhymes and tunes were all created to allow for memorization and correct transmission.

g) Inertia of entire society and state. Law enforcement- Can you imagine a police officer stopping you and informing you that it is Shabbat so you shouldn't be smoking that cigarette? These laws were lived, not just laws of the book, so everyone knew them.

4. Is there any evidence of the antiquity and observance of the Oral Law?

a) Uniform acceptance of basic principles- even the Karaites and Sadducees. For example, in the Written Law we read that our animals have to be slaughtered a certain way. What way? Well, that explanation is offered by the Oral Law. Even the Karaites and Sadducees agreed regarding that interpretation of ritual slaughter.

b) Artifacts predating redaction of Mishna (For example, you can see Tefillin that predate the Mishna by 200 years in the Israel museum)

c) Dead Sea scrolls

d) Septuagint's Greek translations

e) Prophets accept Oral Law as given

f) Consistency and universality of complex calendar among all communities, even without communications

g) Genetic distinction of Cohanim, descendants of Aaron, Cohen Modal Haplotype. Genetic mutation shows Kohanim have a common ancestor.

h) Cholent, hamin, orisa, skhina- protest against Karaite rejection of Oral Law- do not light a fire but you can have a fire burning. Original protest food! Every Jewish community has its own form of cholent, whether it be potatoes and beans, cracked wheat and garlic and rice and so forth. All these stews were created for the same purpose- to demonstrate you don't believe in the Karaite tradition but rather in the Oral tradition that one is permitted to have hot food on Shabbat day. (You see this in the Baal Ha'Meor to the 3rd chapter of Shabbas in his commentary to the Rif.)


Anonymous said...

did 3 and 4 satisfy you?
Joel Rich

Anonymous said...

See here for a more nuanced explanation, see also R' Tzadok on the shift from navi to chacham


Joel Rich

Mikewind Dale said...

Personally, I cannot comprehend the Oral Law without Rabbi Moshe Shmuel Glasner and Rabbi Dr. Eliezer Berkovits.

I follow Rav Hirsch in most respects, but with all due respect to him, I cannot follow him on the Oral Law. Cf. http://www.aishdas.org/avodah/vol10/v10n098.shtml#06 On the other hand, Dr. Elliot Bondi tells me that Rabbi Hirsch and Rabbis Glasner/Berkovits are not irreconcilable, but this awaits further investigation by me.

And see http://michaelmakovi.blogspot.com/2009/01/rebbe-and-talmid-come-together.html.

Mikewind Dale said...

3a) Additionally, unlike telephone, the student is allowed to repeat what he has learned to the teacher. Thus, the teacher can correct him, and/or elaborate. Much of the error in telephone comes from the fact that there is no feedback. Cf. 2e-g.


Rav Hirsch also notes that when Moshe was judging the people all day and night (Yitro), there isn't enough material in Parshat Mishpatim to do this! If it took Moshe all day and night to judge, there must have been more material than is written in the Torah.


Now, I have no problem accepting that there IS an Oral Law, and that Hazal are its authentic transmitters. Sections 3 and 4 are perfectly fine by me, as far as they go.

And, the crux is precisely there, in "as far as they go". My personal difficulty comes in accepting that each and every drash we see, each and every law we see, that they are all authentic and indisputable.

It all begins with the dissonance we all have when the drash seems to contradict the p'shat. As far back as the Kuzari, if not earlier, people were already troubled by this question, and the question was resurrected in the 19th century. However, the Kuzari's answers (which, if I remember correctly, boils down to the fact that Hazal were obviously so skilled, proficient, and authentic, that we ought to take their word for it; similarly, when a doctor says something that sounds crazy to you, you're likely to trust his degree over your lack thereof) don't satisfy me in every instance, and neither do the 19th century answers always satisfy me. Now, often they do, but often is not 100%. For example, try as I might, I cannot shake the conviction that G-d warned Noah against consuming blood itself, not ever min ha-hai.

Therefore, I was drawn to Rabbis Glasner and Berkovits. Put succinctly, they propose, based on Rambam's Hakdamah to the Mishnah that there are drashot which were NOT given at Sinai, and which were rather creatively derived by Hazal; and based on Hilhot Mamrim that a Sanhedrin can overturn a drash that was creative, they propose that the Oral Law deliberately contained a human subjective element. Thus, "lo bashamayim hi".

Moreover, they propose, following Sefer haIkkarim and others, that the Oral Law was oral, precisely to allow organic and natural evolution, as Wissenschaft and Conservative would argue. According to them, the "eit la'asot lashem" to write the Oral Law now makes sense; by writing down the Oral Law, they destroyed its very purpose, viz. its organic and evolutionary capacity. I might note that Rabbi Dr. Isidore Epstein perhaps agrees; see http://michaelmakovi.blogspot.com/2009/01/rabbi-dr-isidore-epstein-on-oral-law.html. But this is not the area of their thought which I wish to focus on at this time.

Tosafot Yom Tov to Nazir 5:5 (shown to me by Professor Yaakov Elman at YU, who also introduced me to Rabbi Glasner; Professor Elman was enormously helpful to me in all these matters of the Oral Law) says that just as one may interpret the Humash for its p'shat, aside from its drash, so too, one may interpret the mishna aside from its meaning according to the Gemara. First, the Gemara itself didn't intend to scientifically elucidate the Mishnah, but rather, it strove to explain the Mishnah according to its time. Many laws in the Mishnah seem to evolve by the time of the Gemara, according to the halachic and exegetical principles, philosophies, and interpretations of the Amoraim. Rabbi Berkovits in Encyclopedia Judaica, "Talmud", notes that the Babylonian rabbis used the okimta to square mishnayot that differed with their own received Babylonian mesorah. Rabbi Adin Steinsaltz in the Essential Talmud also notes that the okimta is not scientific; he says that the purpose is not to derive what the Tannaim themselves actually meant, but rather, to continue to develop an organic amalgam of mesorah in general, evolving and continuing with time; the point isn't what the previous authorities actually said, but rather, the implications of what they did say, or what they could have said according to the logic of what they did say.

Also, Rambam Hilhot Shehita 10:12-13 (quoted by Rabbi Glasner) is absolutely amazing; he says that in all the treifot, Hazal received from Sinai only the general principles (such as "A damaged liver renders the animal a treifa"), and Hazal had to elucidate the particulars. If today, science contradicts what Hazal found, then science is correct and Hazal wrong, only the Talmud is sealed, and we cannot do anything about it.

But these are all lecture notes; read Professor Elman's abridged translation of Rabbi Glasner's Hakdamah, at http://www.dorrevii.org for a fuller understanding.

The upshot is that while the Talmud is binding, it isn't necessarily objectively true. In fact, Rabbi Glasner explicitly says that the Oral Law is a "conventional" truth, i.e. that what is true, is whatever the Sages in that generation say, and the next generation may exchange that truth for a different truth.

I might note also that Rabbi Glasner's philosophy beautifully explains the law against reciting mikra by heart and against writing the Oral Law, as Rabbi Glasner explains: since the Oral Law was meant to be oral, to ensure its flexibility, writing it down for public consumption would only serve to thwart this, by making the law "set in stone". Thus, private notes were permissible; the prohibition is only in notes for public consumption. Similarly, then, reciting mikra by heart is forbidden, but only in public teaching, as in teaching heder children to read Torah. But in private, or for informal lessons, obviously reciting mikra by heart is permissible.

Ya`aqov said...

Shalom lekullam -

As a convert to Karaite Judaism, I would like to respectfully raise a simple issue. As we all know, there is a strong prohibition mentioned multiple times in the Miqra against adding upon/subtracting from Mitswoth HaTorah (see Dvarim 4:2, for example.) As a former Christian, I find it interesting that this entire leture syllabus failed to provide actual direct evidence of Miqraic authority for a Tosh"b, and mainly used unscholarly arguments from silence ("well how do you afflict yourself on Yom Kippur? by sitting on tacks?", etc. - why not look at the Miqra to understand what we`anithem eth nafshoteikhem means before looking for another holy text?) This unsatisfying approach is coupled with a pessimitic attitude towards the Sefer Torah (the toshb"k), chiefly arguing on it's alleged impracticailty, unclarity, and overall inferiority to Rabbinic legislation.

When missionaries tell us that the Gospel is "profesied" in our Miqra, we all (as religious Jews) quickly take to the Peshat, look up the context of the alleged "prophesy", and show them how - in their rush to push their church dogma - they didn't even examine the context of their prooftexts. We also hold them to account for quoting St. Paul's arguments on the alleged "inefficacy" of following the "old dead letter of the Law", instead of following their new & improved sectarian books (the gospels and epistles. We Karaites simply take the same approach to ANY sectarian literature - Essene, Rabbanite, Messianic, Islamic, Mormon, etc.

Ya`aqov said...

There are 23,203 pesuqim in the Miqra. If there is a "new testament", a "Quran", a "Torah SheBe`al Peh, that we are expected to follow, then God (blessed be His Name) would have easily equipped up with knowledge about it, especially since transgression of Mitswoth deRabbanan can carry stiff penalities. We are not "anti-traditionalists", as in "if the Rabbis do it, then it's wrong". Rather, we treat Minhaghim as a part of the cultural tradition of Yisrael - not as divine laws. If there is a custom to light Neroth Shabbath - we do _not_ make a brakhah that claims that God Himself told use to burn such candles. That would be invoking his name vainly, according to our view.

We also observe the interesting coincidence that Beith Hillel (the more lenient and popular school) & Beith Shammai (the more conservative and less popular school), who Yerushalmi Hagigah 2:2 called "shtei kittoth" (two sects(!)) disagreed completely on over 316 halakhoth affecting the application of allegedly unwritten laws secretly issued on Har Sinai - each having Yeshivoth teaching his own version of the Tosh"b until the Talmud in I believe Hagigah 2:9 laments "the one Torah has become two Toroth".

But! Just 20 years after Hurban Beith HaMiqdash, YoHannan ben Zakai (Hillel's youngest pupil) convenes a council in Yavne, where Rabban Gamliel II (Hillel's Grandson & the first post-Hurban Nasi) claims he heard a Bath Qol (heavenly echo) that - astonishingly - declares the halakhoth of *his* sect to carry eternal authority and the rulings the Shammaites to be eternally overrulled in any future maHloqeth. This Gamliel also drafts the first prayer to curse any Jews who are not a part of the Rabbinic sect of Judaism as heretics. From the Karaite perspective, the absences of nearly all Shammaite Pharasiaic voices from the rest of Rabbinic literature is highly suspicious, and would indicate that the power vacuum left by the Galuth was taken advantage of by not just Pharisees but Hillelite Pharisees - and that this is the explanation for the wide acceptance of the Tosh"b across the world - not necessarily Divine approval.

Again, this sounds very familiar to Western ears - namely, religious councils that early on declare the more lenient and politically-connected sect to be the "winner" of all future controveries, and also proclaim the condemnation of all dissenters as "heretics" and "excommunicants".

One must decide whether your view of Halakhah will trust that - despite the deafening silence on the existence of an Oral *Law* (traditions existed, but not on par with the Sefer Torah) in the Miqra, the clear references to following the laws *written* in the *Sefer* Torah (see Joshua 1:8, for example), and the prohibition against adding NEW laws - will you see the Miqra as carrying Halakhic authority? or will the Torah scroll just be an overpriced religious trinket, only listened to for liturgical purposes.

I welcome any debate or challenge to first be met introduced with Scriptural references.

Barukh yomkhem -

Ya`aqov Walker
Charlotte, NC

Mikewind Dale said...

Rav Hirsch notes that whereas Moshe sat all day judging (to Yitro's consternation), there is not enough material in Parshat Mishpatim to do this! What laws did Moshe have to apply so laboriously and tediously that he judged all day? Just let the people look up the pasuk in Parshat Mishpatim and be done with it!

Academic scholars of Near Eastern cultures will themselves attest to the fact that an oral tradition accompanying the written tradition is not a peculiarly Orthodox Jewish belief.

We might further note that according to Professor Ephraim Urbach's The Halakhah, many of the Sadducean practices - on which basis the Sadducees questioned the Pharisees - have their basis in Hellenistic paganism. Those who first rejected the Oral Law were Reformers no matter which way you cut it. I'd rather keep a false Oral Law than be a Hellenist.

As for the disputes between all the Pharisaic schools: the Talmud itself testifies that this was a new development, probably due to Roman persecution.

As for the Torah being only liturgical and not legal: this is a very recent development, and has nothing to do with Pharisaism. According to the Babylonian Gaonim and Rambam, the Rabbis had the ability to derive new laws from the verses of the Torah themselves, as long as no extent tradition contradicted the newly derived law. It is only since the writing of the Mishnah that this prerogative ceased to be applied in practice.

Mikewind Dale said...

I only just realized the irony of my referring to the writing of the Mishnah as being "very recent". I stand by this statement, however. When Jewish history is 3500 years long, 1800 years ago isn't so long ago, after all. I still consider anything since 1500 to be almost yesterday.

Zvi said...

Shalom Dale.

With all due respect to the Rav Hirsch you allude to, the fact Moshe Rabbenu (PBUH) sat all day judging for several weeks after the Yam Suf episode doesn't reflect on the amount of material in Parshat Mishpatim or the other way around since there's no shred of evidence that any of the rulings rendered by Moshe entered that parasha.

I have no problem with Near Eastern culture specialists stating that there's nothing peculiar about Orthodox Jewish belief having an oral tradition accompanying the written code. The one point Orthodox apologists doesn't seem to want to grasp is that Orthodox Judaism is unique in its insistence that all oral traditions of ancient Israel found their way into the Tsh'A and that the tsh'A contains all the oral traditions that ever existed in ancient biblical Israel. Both assumptions are factually incorrect.

Having duly noted Prof. Ephraim Urbach's opinion which I disagree with, it is a historical given that much of Mishna (let alone the Talmud) is already influenced by Greek and Babylonian paganism.

What may come to you as a surprise is the fact the earliy Pharisees were the first Reformists in the post-Tanakh epoch. Indeed, Phariseeism deserves the label of the first Reform movement in Judaism. Sorry, you can't insult our intelligence by presuming to have us believe such Rabbinic commandments on Hanukka, the Eiruv, Netillat Yadayim, the Prozbul and others existed prior to the advent of Phariseeism. To deny those who introduced these post-Tanakh practices reformed Judaism way before the Qaraites appeared on the Jewish scene is an exercise in futility. If you keep the Oral Law, you're unfortunately observing something false AND partly Hellenistic (and Babylonian and Zoroastrian).

If the disputes between the two Pharisaic schools originate in Roman persecution, this sets the onset of at least some of those debates in the second half of 1st century BCE, well prior to R. Yehudah haNai's editing of the Mishnah in 200 AD. But then again, if the Oral Torah was from Sinai, how come so many contradictions existed within it between the 2 schools even in this early stage? The Talmud attempts to rationalize away the embarrassing dilemma by branding the musings of both schools as "the words of the Living God". Sorry... unconvincing.

I second Ya`aqov W.

Barukh Yah

~ Zvi

Mikewind Dale said...


Someone (probably either a maskil or a secular Zionist) once came to Rabbi Avraham Yitzhak ha-Kohen Kook, and said, "I don't believe in a G-d that does this and this and that and that...". Rav Kook replied, "Neither do I." The man, startled, asked for an explanation. Rav Kook explained, "The sort of G-d you reject, I reject Him as well. Your conception of G-d is entirely false, but were you to have a correct conception of G-d, then perhaps you might be more willing to believe in Him."

Your conception of Pharisaic Oral Law is so mistaken and confused, that I cannot think of anyone who holds by it except certain ignorant fundamentalists. Professor Yaakov Elman at YU told me that the fundamentalists of the Oral Law turn it into "something dessicated and bereft of life".

You say, "Orthodox Judaism is unique in its insistence that all oral traditions of ancient Israel found their way into the Tsh'A and that the tsh'A contains all the oral traditions that ever existed in ancient biblical Israel."

But who says all the oral traditions all found their way into the Talmud? The Talmud itself declares that the Mishnah was written down because the Oral Law was being forgotten. Moreover, the Talmud testifies to the fact that before the days of Beit Hillel and Beit Shammai, before the Oral Law was forgotten, there were fewer disputes. Almost all of the disputes in the Talmud are due only to the vagaries of history and persecution, and not because of the nature of the Oral Law. See Rambam's introduction to the Mishneh Torah: he declares to the reader - assuming his reader is a layman and not a rabbi - that one may rely on his laws and not check the Talmud himself, because, Rambam says, the practical laws are the most important, and the disputes in the Talmud arose only incidentally due to Roman persecution, and that the disputes are not central to the Oral Law. In one place in his commentary to the Mishnah, Rambam says of an opinion of Beit Shammah (I am paraphrasing), "We don't need to explain his opinion, because Beit Hillel is the law, and we don't need to understand the opinion that is not binding anyway." There, Rabbi Yosef Kafih comments, "Today, the [Brisker-school] rabbis of the yeshivot would call this approach layman's ignorance, but our great rabbi disagreed!" (I saw this comment of Rambam's and Kafih's in Professor Marc Shapiro's "The Brisker Method Reconsidered", Tradition 31:3). My point in bringing all this is that it is idiocy to say that the Sinaitic traditions all found their way into the Talmud, because the Talmud itself declares this to be false.

Zvi, you say, "Sorry, you can't insult our intelligence by presuming to have us believe such Rabbinic commandments on Hanukka, the Eiruv, Netillat Yadayim, the Prozbul and others existed prior to the advent of Phariseeism." Zvi, this opinion insults both our intelligences. The Talmud itself declares that the Maccabees instituted Hanuka, King David (or Solomon?) the eiruv, and Hillel himself (not Beit Hillel) the prozbul. Without getting into whether historical details are accurate - you might dispute that a Biblical king made the eiruv, and we might note that the First Book of Maccabees says nothing of the miracle of the oil, rather explaining Hanuka's eight-day nature as an homage to Sukkot - the point is that the Talmud itself admits that the Oral Law evolved over time, especially in regards to Rabbinic enactments, which everyone - even the Haredi Orthodox fundamentalists - admits were instituted by humans and are not Sinaitic.

As for the Hellenism and Zoroastrianism in Hazal, Rabbi Saul Lieberman has written on the former, Professor Yaakov Elman on the latter, and I have made my own petty contribution to this here.

to be cont.

Mikewind Dale said...

cont. from above

And see the Iggeret of Rav Sherirah Gaon, where he explains how many different schools of Tannaim there were. Rabbi Yehuda ha-Nasi had a myriad of different schools to collect from, and he collated everything, and selectively chose opinions, until he arrived at the edited Mishnah. Unlike what many ignorant people believe, he did not write the Mishnah; he edited the Mishnah. Thus, we have all the beraitot and Toseftot and Midrashei Halakhah that sometimes agree, sometimes not, and sometimes add details that furnish further context without either agreeing or disagreeing with what the Mishnah says. And behold how often the schools of Rabbi Akiva and Rabbi Yishmael disagreed in Midrash Halakhah, using entirely different methodologies even (Rabbi Akiva expositing on every tit and tittle, Rabbi Yishmael presuming "the Torah speaks in the language of men")! It used to be that the Rabbis would derive wholly new laws from the Torah, just as the Sadducees and Karaites do! - only the Rabbis would do this only when there wasn't already a Sinaitic tradition on the precise matter in question. It is only when the Mishnah was written that this process ceased; see Rabbi Dr. Isidore Epstein's Foreword to the Soncino Midrash Rabbah, and see Professor Menachem Ellon's article "Interpretation" in the Encyclopedia Judaica. The whole concept of the Rabbis deriving new laws from the Torah itself is well-established in the works of the Gaonim and Rambam, although I believe Rabbi Saadia Gaon downplayed this phenomenon in his polemics against the Karaites.

You misunderstand the meaning of elu v'elu. This does not mean that on some metaphysical level, G-d is schizophrenic and believes two contradictory opinions. Rather, what elu v'elu means is that since G-d has Himself told us to "Go to the judge who will be in those days", and since both of the two schools based themselves on the same Torah-data and Torah-method, therefore, both of their conclusions are legitimate and are Torah themselves. But still, one, and only one, opinion has to be followed in practice. G-d Himself declared "It is not in heaven", which Rabbi Joshua there interprets (homiletically, not according to its contextual meaning in the Torah) to mean that even if G-d has His own personal opinion, He has instructed us to follow our own human reasoning. He gave us the Torah, but He wants us to develop it further. Rabbi Zadok ha-Kohen of Lublin elaborates on this extensively: the same way that the meraglim - according to Hazal - wanted to stay in the desert and receive food straight from G-d and not work themselves, so too, many prefer Moshe's direct prophecy of laws from G-d, rather than the dangerous and less certain route of using human reasoning to derive ourselves what those ancient prophecies mean to us today. But the same way that G-d disagreed with the Spies, he disagrees with those fundamentalists who are afraid of using human reasoning to decide Divine law. As Rabbi Moshe Shmuel Glasner says, asher bara elokim la'asot does not only mean that He gave us the physical world to develop ourselves further, but so too the spiritual world - the halakhah - He gave to us to develop ourselves. After all, says the Talmud, Moshe Rabbenu didn't understand Rabbi Akiva's lecture, the Oral Law had evolved so much over time by then!

Mikewind Dale said...

To add to what I say above:

If you want to understand the Oral Law fully, I suggest you read:

Rabbi Dr. Isidore Epstein on the Oral Law

Rabbi Glasner's philosophy, cited at the end of the previous URL.

Ya`aqov said...

Shalom Mike Windale -

First off - This is all in a spirit of friendship; I'm a follower on JewishIdeas.org, and we clearly agreee with many of the concerns regarding the application of the Oral Law among deeply-established Orthodox communities. I would like to perhaps transfer this exchange to either your own blog or, I can create my own blog - just out of respect to the owner of this page.

What do you think?

-Ya`aqov Walker

Mikewind Dale said...

I don't know. I figure the owner of this page would probably be delighted in a discussion of the nature of the Oral Law. What else would the author want?

I might add: see Rabbi Dr. Eliezer Berkovits's Not in Heaven: The Nature and Function of Halakhah (long out of print) and his Halakhah: Koha v'Tafkida (still in print, Mosad haRav Kook) for a Glasner-ian book-length treatment on the Oral Law.

Zvi said...


While I don't second all your statements, I'm relieved to notice you're rather cordial and willing to face most flaws in Orthodoxy as testified by the various Rabbinic sources, and I'm not necessarily going to insist on having the last word in our exchange (but not because I've given up).

Firstly, your reference to "ignorant fundamentalists" befits the ultra-Orthodox known as Haredim and maybe some other Orthodox Jews whose ancestors have long turned the Tshb'A into something dessicated and bereft of life; it befits at least their practice if not their mindset and attitudes. And there's no chance I'd be more willing to believe in the Pharisaical Law as I know it's not Sinaitic but a creation of men starting from 2nd century BCE and I'm a believer in the Miqra in its plain straightforward meaning, which to me renders the so-called Oral Law unbelievable. If you choose to view my conception of the Tshb'A as mistaken & confused, so be it. I've got no doubt from my end that the Tshb'A itself is highly mistaken and confused.

Dale, you inadvertently make my point on occasion. For example, with all due respect to Rambam, his statement that he and his peers didn't need to explain Bayt Shammais's opinion to Jewish laypeople betrays the Rabbinic insistence on controling the Jewish mind and a sort of paternalism. Instead of giving an honest breakdown of the 2 schools' opinions and letting the readers arrive at their conclusions after getting truly informed, he and his peers presume to decide what's best for laypeople to read of the available material. This and the claim "we don't need to understand the opinion that is law anyway" is preposterous.

Now even by your own reckoning the Talmud concedes that disputes did exist between Pharisaic sages before the days of Beit Hillel and Beit Shammai, which is one more confirmation of my conviction that the Tsb'A wasn't Divine from the onset.
Yet I'm not convinced by your claim that almost all the disputes in the Talmud are due only to the vagaries of history and persecution and not due to the nature of the Tshb'A. This is plainly not so. With all due respect, disputes are an important component of the Tshb'A. There's even a Talmudic saying the Torah has "70 faces" ("shiv`im panim la-Torah") though I hazard a guess you'll proceed to claim this expression means something else.

I need to apologize for claiming Orthodoxy maintains that the Sinaitic traditions all found their way into the Talmud. I had relied on a confident claim made by an Israeli Haredi, Daniel Balas, an activist in turning secular Jews into Haredim. I hadn't duly studied the topic, so I ended up relying on an idiotic claim made by some guy who sees nothing askew in employing malarkey to win over an audience.

(to be con'd)

Zvi said...

Dale, I wasn't faulting the Talmud for failing to admit the Hashmona'im instituted Hanukka, but rather effectively claimed the Rabbinic taqanot and minhagim for this holiday do not predate the advent of Phariseeism. Please make sure you attentively read what I state.
I don't know if you take seriously the Talmud's claim that David (or Shlomo) introduced the `eruv, but there's no shred of evidence for it in the Tanakh and other non-Rabbinic sources.
Let me provide a slight correction: the 2nd book of Hashmona'im assigns Hanukka's eight-day nature as a homage to Sukkot.

Now... if the Talmud itself admits the oral Law evolved over time, including and especially in regards to Rabbinic enactments that even the Haredi Ortho fundamentalists admit were instituted by humans and aren't Sinaitic, there's no reason for me to be more willing to believe in the Tshb'A. You see, these facts figure as a main part of my conception of that Law :)

When the Rabbis derived wholly new laws from the Torah, I wonder how many of them didn't effectively contradict, add to or detract from the true Torah. I'd say the Qara'im have done a better job in this niche. Also, the odds are most of what the Rabbis of old (and possibly you) viewed as Sinaitic traditions didn't originate in Har Sinai but were creations of men.

I don't see where I misunderstand the meaning of "elu we'elu". I took this statement by its plain straightforward meaning whereas the meaning you're assigning it is what Rabbinical apologists would have everyone believe in order to avoid the obvious conclusion.
What's more, the miswa "...to the judge who will be in those days" isn't about Rabbinic authority to dictate Halakha but rather commands to recognize the authority of the kohanim and judge who comprised the top legal instance situated on the Temple Mount and on it only, and to which civil disputes were to be brought in cases when lower legal instances throughout the Land found too wondrous to reach a verdict.
Anyhow, if both Bayt Hillel and Bayt Shammai's conclusions are to the Orthodox legitimate and therefore register as Torah themselves and yet only one of those ways must be followed in practice (which was decided in Talmudic times for political reasons and not motivated by Yir'at Shamayim as you may believe), this is yet another confirmation of my underlying reasoning for rejecting the oral Law.

As to taking the "dangerous and less certain route" of "using human reasoning to derive ourselves what ancient prophecies mean to us today" and in earlier periods and deciding Divine Law, there's no question to me that while ignorant Rabbinites believe the Qaraite Jews haven't done anything of the sort, the Qaraites have done so and with far better success than our Rabbinite counterparts. The crux of our historical dispute is our disagreement with the Rabbinic outlook spanning all generations since the Pharisees that the Rabbis may do so by contradicting, adding to and detracting from the Torah's commands. In other words, we maintain only our God gets to decide the Divine Law while we're responsible for interpreting it ans the rest of the Miqra but only in a manner that doesn't arrogate to ourselves privileges to adulterate YHWH's words. Of course the Rabbis took a different route that is probably best embodied by the "lo bashamayim hee" midrash.

Kol Tuv,

Mikewind Dale said...


I think the underlying assumption of Rambam's attitude towards Beit Shammai is that Jewish law needs one binding norm. The Rabbinic perspective on halakhah would be like any secular jurist's: all the opinions are theoretically valid, but we need to have one binding norm. Don't forget: halakhah was intended not to create the righteous individual, but rather, the righteous society and nation-state. One the most severe indictments of Qaraism, I think, is that "there is no king, and everyone can do what is right in his own eyes". Rabbinic Judaism values freedom of thought, but it must balance this with unity and harmony, and there is a dialectic between protecting the rights of the individuals while simultaneously trying to regulate society as a whole for the greater good.. Rabbinic Judaism thus sees the Sanhedrin's powers not as any expression of the fact that the Sanhedrin paternalistically knows best, but rather, that, pragmatically speaking, the best way to balance freedom of thought and unity is to have the most learned and wise leaders decide law based on majority. (We should note that in Rabbinic interpretation, the zaken mamre, whose sin is interpreted as rebellion against the Sanhedrin's ruling, is culpable only if he tries to convince others to follow him in deed, but not if he merely teaches his opinion in theory.)

As Professor Yaakov Elman put it to me, "It's [The Talmud's interpretation is] not "objectively accurate." It is authoritative because they have the authority. They are not claiming that their interpretation is the "plain meaning" of the Mishnah, just as their biblical interpretations are not the plain meaning of Scripture. If you accept rabbinic authority, that is your assurance. If you do not, there is no assurance. The Babylonian Talmud has been accepted as the more authoritative one, even when the Palestinian one is closer to the "plain meaning." Moreover, interpretation is more reinterpretation, which is necessary for any living legal system."

We could argue about individual Rabbinic methods. I myself find myself far more in agreement with Rabbi Yishmael than with Rabbi Akiva, so I won't lie and say that I agree with everything the Rabbis said. But generally, I submit my own personal autonomy to a larger legal norm that transcends my own individuality. I do the same in America or Israel as regards the civil law. Now, hopefully, halakhah will not stifle individuality overmuch, but nevertheless, as I said, it is a difficult dialectic. On the other hand, you (as far as I understand - please forgive me and correct me if I'm wrong) put your emphasis more on the individual's own personal reading of the Miqra, and don't concern yourself with maintaining any greater legal norm.

to be cont.

Mikewind Dale said...

cont. from above

My interpretation of "elu v'elu", while based on post-Talmudic commentators, isn't apologetic, I think. You may disagree with the Rabbis, but surely you agree they weren't schizophrenics who thought two contradictory things at once! I think it is absurd to believe the Rabbis thought that Beit Hillel and Beit Shammai were simultaneously true in the sense that G-d Himself believed two opinions at once. I think it is simply far far more reasonable to explain the midrash by saying that Beit Hillel and Beit Shammai, since they both used Sinaitic data and methods and analysis, both had good cases to make, and that both had equally solid basis to claim their view as the most legitimate. The midrash isn't trying to make a metaphysical point, but is rather simply teaching the value of tolerance of different points of view, and the importance of intellectual creativity and flexibility, and that - at least as far as the limited human intellect is concerned - the truth is too complex and variegated to be successfully arrived at by only one person alone.

Indeed, the Torah has seventy faces. For not all of the Torah was given at Sinai; much of it was given merely in potentia. An example: the Torah tells us how one is culpable for sleeping with various relatives. But how many times is one culpable for sleeping with ONE woman who is prohibited thrice-times-over as being consanginuous. (As the Talmud explains, he is "the sinner son of a sinner.) Most likely, G-d didn't tell us this case at Sinai, but rather left it for us to determine ourselves. But there are multiple ways of weighing up the Sinaitic data, and all the different opinions, as long as they base themselves on proper verses and logic, are valid interpretations, all seventy of them.

Most of your other arguments boil down to the fact that you don't trust the Rabbis, and so given doubtful data, you'll assume the worst in them. I will do the opposite. Neither of us will be able to convince the other, at least not without several hundred pages of detailed historiography, arguing about the Rabbis' motivations, line-by-line through the Talmud. I won't deny that the Rabbis had political intrusions into their halakhic decisions - which nation on earth has successfully avoided politics affecting the truth? - but on the whole, I generally assume the Rabbis were G-d-fearing and truth-seeking. If you disagree, I cannot disprove you.

By the way, don't rely on Haredim for anything, at least not anything scholarly or intellectual in nature.


Zvi said...

Shalom Michael.

I take issue especially with your following excerpted statements:

Don't forget: halakhah was intended not to create the righteous individual, but rather, the righteous society and nation-state. One the most severe indictments of Qaraism, I think, is that "there is no king, and everyone can do what is right in his own eyes". Rabbinic Judaism values freedom of thought, but it must balance this with unity and harmony, and there is a dialectic between protecting the rights of the individuals while simultaneously trying to regulate society as a whole for the greater good..

Firstly, if your first statement really jives with historical givens, this is nothing short of outrageous as one whould expect the Halakha to attempt to achieve both objectives as much as humanly possible.
I'm not at all surprised you're misinformed about an important aspect of Qaraite Judaism which places in principle equal emphasis on each and does not tolerate one doing what's right in their own eyes when they fail to base their exegeses on the plain straightforward meaning, especially of God's will as found within the Tanakh.

Secondly, Most Qaraite Jews belong to a traditional stream whose Halakha has been formed on the basis of a host of Consenses or "Haskama" in Hebrew in various issues in order to strike a balance between individual freedoms and the public's interests as a whole as it were. This system begins to sound semi-Rabbinic, but it is much closer to the straightforward meaning of Tanakh than Orthodox Judaism's Halakha and ensures the communities function without the peril of being torn assunder by intra-movement controversies, strife and bickering.

Thirdly, Orthodox Halakha has failed badly in achieving a righteous nation-state, and one needn't look further than the State of Israel for the evidence for this.
Historically, Rabbinism has created forced loyalty among its constituents toward its Halakha which Orthodoxy is very proud of, particularly as has been the case since the Shulhan `Arukh was published and "glossed over". In the Diaspora, those persons disenchanted and hurt by Halakha's system usually had only one other option beside being victims of the Rabbinic system -- to be pushed outside the walls by the local Jewish community's enforcers after they've chosen to disobey the local rabbis on this or that matter and being forcefully baptized or made Muslim...
So, many Jews actually thought Halakha was flawed but obeyed the Rabbis out of fear and not because they believed Halakha was good.
Based on what's happened in the US and Israel alone in the last few decades -- without getting into data from elsewhere -- Orthodox Halakha has abysmally failed in both the protection of individual rights and regulating society as a whole for the greater good. Most of the supposed success it has accomplished is only ostensibly and at the cost of deep and profound discontent among its practitioners' ranks. I'm not really astounded that corruption and crime (not to mention a lack of Yir'at Shamayim and the practice of Judism as commandments of men learned by rote) is so pervasive in the ranks of certain ultra-Orthodox segments, which is one of the products of a system that doesn't concern itself with creating a righteous individual.

I'm uninterested in repeating myself about the other points we've been mutually discussing.

I've noticed that unlike me you rely extensively on scholars and their sources. I suggest you take their input with a grain of salt and a tad more suspicion than excitement.

Lastly, you tell me not to rely on the Haredim for anything even after you yourself had relied on their most fanatic members in order to prove your point that virtually every Orthodox Jew admits Rabbinic enactments were instituted by humans and aren't Sinaitic. LOL... Sir, you should have led by personal example in what you wished I wouldn't do.

Kol Tuv,
~ Zvi

Mikewind Dale said...


I'd be interested please in some more details about the Qaraite consensus and haskamot and such, to balance unity and personal intellectual freedom.

As for the State of Israel: its infrastructure and laws were crafted almost entirely by non-religious Jews. The Haredim can be rightly indicted for abstaining from even the attempt at influencing statehood - see Eim ha-Banim Semeikah by Rabbi Teichtal - but nevertheless, after the fact, you cannot blame the Haredim for the nature of the state. As for the more Zionist rabbis, they - and I especially have in mind Rav Kook, Rabbi Yitzhak Herzog, Rabbi Benzion Uziel, and Rabbi Haim Hirschensohn - sincerely and truly tried to influence the non-religious towards religiosity, or at least to let the state as a whole be religious. Unfortunately, they failed to so convince, but only because the non-religious didn't listen to them, and not for lack of effort or ideas.

I think you're exaggerating how many Rabbinic Jews were just aching to leave Judaism, only they didn't have a choice except between Rabbinic Judaism and the cross. Now, it is true that by the time the Enlightenment came, the West had achieved such an idealism and progressiveness and intellectual rigour that the Jews fled from Judaism as soon as the ghetto walls fell, but we must make two points:
(1) This happened only with the Enlightenment; prior to that, I'm not aware of any significant number of Rabbinic Jews who were pining to leave Judaism;
(2) This Eastern European Judaism failed only because they had adopted Christian notions of the distinction between secular and religious, rejecting the Talmudic notions. Elaboration deserves its own treatise, but see Rabbi S. R. Hirsch's biting indictments of the Haredim.

Most of what you're criticizing in Orthodoxy today is Haredi, but none less than Professor Menachem Friedman has said, "To this day, I am skeptical of the Ashkenazi, Eastern European character of Haredi Judaism." That is, Haredism is a sham, with no historical legitimacy, even Talmudic or Rabbinic. If you look at authentically Sephardi Judaism - I say "authentically" because many have decided to Haredize - and German Neo-Orthodox Judaism, your criticisms of lack of yirat shamaim will cease to be valid.

As for my myself citing the Haredim to prove a point: it was an a fortiori. If the Haredim, of all people, admit a certain evolutionary or historical aspect to the Oral Law, then surely we can trust them! Similarly, if a Haredi says anything good about gentiles or science, you can be sure he's correct.

Mikewind Dale said...

To summarize my arguments: Eastern European Ashkenazi Judaism, and even more Haredi Judaism, are very poor examples of authentic Talmudic/Rabbinic Judaism, and they're practically straw-men.

If you want authentic Rabbinic Judaism, look to the Germans and the Sephardim.

Ya`aqov said...
This comment has been removed by the author.
Ya`aqov said...

`Erev Shabbath shalom -

To your comment: "I'd be interested please in some more details about the Qaraite consensus and haskamot and such, to balance unity and personal intellectual freedom."

Please read the following by Hakham SimHah YisHaq ben Mosheh, from his "OraH Saddiqim"

.באור חלוקת הקראים והרבנים

.שלשלת הקבלה והעתקת התורה הנאמנה
(This ones is more to your point regarding Haskamah/Shalsheleth HaQabbalah)


-Ya`aqov Walker

Zvi said...
This comment has been removed by the author.
Zvi said...

Shalom and Shavu`a Tov Michael.

If several Zionist-inclined rabbis tried to influence the non-religious Jews in Israel in the late 1940's and the 1950's toward religiosity but failed only because the secular had no desire to listen, this hardly vindicates the saner forms of Orthodox Judaism which are still very rigid and regimental, requiring the adherents to pray thrice daily along with tefillin at morning most days, to perform Netillat Yadayim at various intervals throughout one's day, to spend time choosing unblemished Arba`at haMinim for Sukkot (and spending more than $1 for each species), to be purified of impurity only in a Miqweh, to always perform a lengthy Birkat haMazon (usually longer than the traditional Qaraite Jewish version) after eating even a few morsels of bread, to recite Grace before eating (and distinguish between a host of berakhot to recite depending on the given food item); to have or purchase seperate utensils, towels, dishwashing sponges (etc.), cookware and flatware like plates to separate meat and dairy -- even poultry from dairy -- above and beyond what the Torah commanded, not to eat Qitnoyot during Hag haMassot in the neo-Orthodox German tradition although this prohibition has long ceased to make sense, to perform Selihot 40 or 30 days in the (authentic) Sepharadi tradition as opposed to 10 days between Yom Teru`ah and Yom haKippurim in traditional Qaraite Judaism, to observe several mourning customs during the `Omer Count (no haircuts etc.) only because 12,000 of R. `Aqivah's diciples perished at war against the Roman occupiers (greater numbers of Jews were massacred on many occasions since by hateful gentiles, but Orthodoxy has no such mourning periods in Halakha for them; even Israel's former Chief Ashkenazi Rabbi has conceded it's wrong but feels his hands are tied and "cannot alter or undo something Hazal decreed"); you have a fast right prior to Purim followed by 1 day only (in most locations) instead of the 2 explicitly stipulated by Megillat Ester; a fast to commemorate Moshe's smashing of the Luhot haBerit which isn't mentioned anywhere within the Tanakh...
With all due respect, no wonder Israel's secular didn't want to listen to those sane Rabbis.
I daresay if neo-Qaraite Judaism had existed since 1945, at least some non-religious Israelis would be inclined to listen to its message and adopt many Qaraite practices if not faith.

While it's understandable that you're putting words into my keyboard given historical facts that do not cast Rabbinism in favorable light, I didn't claim many Rabbinic Jews were pining to leave Judaism for other religions prior to the Enlightment; I was claiming in so many words many Jews felt Halakha was flawed -- notably due to negative personal experience -- and wished they could practice Judaism in other patterns, and many Jews didn't agree with a lot of decisions rendered by their community Rabbis but nonetheless obeyed them because the alternatives were excommunication or being pushed out of the Ghetto's walls only to be forcefully converted to the land's dominant religion. Also, I wasn't alluding only to Ashkenazi Eastern European Judaism, but to Central and Western Ashkenaz and many European Sefaradim.

Too bad neo-Qaraism didn't exist back in the 18th century. Had it been around that time, perhaps most Jews who ran away from Judaism would maintain their religious faith within the ranks of Qaraite Judaism and just maybe some millennia-old Kohanic geneaology records would've been kept

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