A FENCE AROUND THE TORAH
"Moses received the Torah at Sinai and transmitted it to Joshua, Joshua to the elders, and the elders to the prophets, and the prophets to the men of the Great Synagogue.
"The latter used to say...make a fence round the Torah." Aboth 1.1
The Third Talmudic Claim: The oral law is a fence around the written Torah.
Why does the Torah need a fence around it? J. Israelstam explains that, "The Torah is conceived as a garden and its precepts as precious plants. Such a garden is fenced round for the purpose of obviating willful or even unintended damage. Likewise, the precepts of the Torah were to be 'fenced' round with additional inhibitions that should have the effect of preserving the original commandments from trespass."1
This explanation is affirmed in different places in the Talmud, e.g. "The Rabbis erected a safeguard for a Scriptural law."2 "R.Eliezer b. Jacob said: I have heard that the Beth Din may impose flagellation and pronounce [death] sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but to make a fence around it."3 Though the actions of the Rabbis are not sanctioned by the Torah, they are done to protect the Torah.
This is the common understanding of how the Oral Law serves as a fence around the Torah, but there is a serious problem with it. The Rabbis were not seeking to "preserve the original commandments from trespass." Had they done that, they and their laws would have been left without any authority. After all, the original commandments did not authorize the Rabbis to build a fence or do anything else.
There was a radical and irreconcilable conflict between the Torah and the Rabbis as to the basis and structure of authority, as well as its source and administration. That is why the Rabbis gave themselves the right to alter, revise, trespass, and uproot the original commandments. Nevertheless, there is a sense in which the Oral Law really is a fence around the Torah, a fence that serves a different purpose. Robert Frost speaks to the point in his poem, "Mending Wall":
"Before I built a wall I'd ask to know What I was walling in or walling out, And to whom I was like to give offense."
A fence protects by restricting access. What it surrounds can only be seen through the fence or approached by permission of the owner. When something is fenced in, someone is fenced out.
The Talmud says the Rabbis gave complete authority to themselves.4 To obscure that fact, they built a fence around Torah. The fence both obscures Torah and keeps the people from Torah. "Our Rabbis taught: They who occupy themselves with the Bible are but of indifferent merit; with Mishnah, are indeed meritorious, and are rewarded for it; with Gemara there can be nothing more meritorious; yet run always to the Mishnah more than to the Gemara."5 Studying the Bible was said to be of no great importance; studying the rabbinic writings brought great reward. Israel was told to trust in the Rabbis.
Above all, a fence indicates ownership. The Talmud explains that erecting a fence is a means of asserting ownership over something one didn't own before. "In the case, however, where land is presented as a gift, or of brothers dividing an inheritance, or of one who seizes the property of a proselyte, ownership can be claimed as soon as the first step has been taken towards making a door or a fence or an opening."6 "If he does anything at all in the way of setting up a door or making a fence or an opening, this constitutes a title of ownership."7
This Talmudic portion is followed by a section discussing what actions constitute 'taking possession' of a particular piece of property. One means for taking possession is to increase the height of a fence. "If a man raises a fence already existing to ten handbreadths, ...this constitutes effective occupation."8
"R. Akiba said:...Tradition is a fence to the Torah.'"9 In saying this, Akiba agreed with Josephus and the gospels, though their view of placing torah behind tradition was negative. The contemporary sources indicate that the appearance of "tradition" before Akiba was as a small fence with great gaps in it.
That allowed too much free access. "The All Merciful taught Moses thus: Thou must not allow the greater part of a fence to consist of gaps. R. Huna the son of R. Joshua ruled, it is forbidden for it is this that the All Merciful taught Moses: Its greater part [must be] fence."10 Akiba raised the fence and closed the gaps to assert ownership of the Torah, according to the rabbinic principle of labud. 11
The goal was to fence the people off from the Torah and from all other influences that would have competed with rabbinic interpretation and authority.12 In the system which was erected, no one else had the right to interpret Torah. Not the am ha'aretz, nor the priests, nor the prophets, nor the Sadducees, the Qumran Covenanters, the Talmidei Yeshua, nor anyone else.
Not even God.
This was the continuing theme of the rabbinic writings. "The apologetic function of the midrash is not only to denigrate the translation of Scripture, but to establish the exclusive authority of the Pharisaic tradition as the legitimate recipient and interpretation of divine revelation."13 Only the Rabbis could give the authorized interpretation. Who said so? They themselves. As a fence, the Oral Law is a means to assert and entrench rabbinic hegemony. Without it, nothing needs rabbinic approval. With it, everything does.
1. J. Israelstam, Aboth I,1 n.7 Cf. Pes. 2b, Er.100b, and Sanh.46a
2. Pesachim 2b Another example is found in Erub.100b: "For did not Rab once
visit Afsatia where he forbade the use of a stripped tree?--Rab found an open
field and put up a fence round it." Israel Slotki explains that "The people of
that place were lax in their religious observance (morally exposed like an
'open field'), and Rab imposed upon them additional restrictions in order to
keep them away thereby from further transgressions." Er.100b, P.695, n.8
4. Ket.84a "the Sages have imparted to their enactments the same force as that
of Pentateuchal laws."
5. Baba Metzia 33a
6. Baba Bathra 42a
7. Baba Bathra 52b
8. B.B. 53a
9. Avoth 3.13
11. cf. Shab.97a
12. Bilhah Wardy observed that, "After the destructive uprising of Bar-Cochbah
and the edicts of Hadrian, Rabbi Akkibah, the spiritual leader of his
generation, confirmed the laws intended to strengthen the remnants of the
Jewish people during this time of its greatest crisis, and to fence them off
(the Hebrew term is sejag latorah, hrwtl gys) from the charms of the pagan
culture and the dangers of a complete absorption by this world." Wardy, P. 640
R. Akiba did more, however, than seek to fence the people off from pagan
influences. He sought to fence them off from any Jewish influences that would
hinder obedience to rabbinic authority.
13. Etan Levine, The Aramaic Version of the Bible, de Gruyter, NY, 1988, P.143
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What Is A Rabbi
Tanakh And Oral Law
The Oral Law As Interpretation
The Historical Development Of Oral Law
A Fence Around The Torah
Confronting The Scriptures
Uprooting the Scriptures