THE ORAL LAW AS INTERPRETATION
The Second Talmudic Claim: The oral law is an extended interpretation
and elaboration of the written Torah which was given to Moses.
[Or: It was present as a seed in the written Torah, but later
grew and flourished.]
The Talmud explains that, "When Moses ascended on high he
found the Holy One, blessed be He, engaged in affixing coronets
to the letters. Said Moses, 'Lord of the Universe, Who stays Thy
hand?' [I.e., 'is there anything wanting in the Torah that these
additions are necessary?'] He answered, 'There will arise a man,
at the end of many generations, Akiba b. Joseph by name, who will
expound upon each tittle heaps and heaps of laws'. 'Lord of the
Universe', said Moses; 'permit me to see him'. He replied, 'Turn
thee round'. Moses went and sat down behind eight rows (and listened
to the discourses upon the law). Not being able to follow their
arguments he was ill at ease, but when they came to a certain
subject and the disciples said to the master 'Whence do you know
it?' and the latter replied 'It is a law given unto Moses at Sinai'
he was comforted. Thereupon he returned to the Holy One, blessed
be He, and said, 'Lord of the Universe, Thou hast such a man and
Thou givest the Torah by me!' He replied, 'Be silent, for such
is My decree'."1
The story makes several important points:
1. The halachah is an elaborate interpretation of the Torah -
an infinite number of laws generated from the scribal ornamentation
of individual letters.
2. Moses did not know the halachah. He did not recognize what
Akiba taught.
3. Rabbi Akiba is credited by God as being the originator of the
oral law.
4. Neither Akiba nor his disciples recognized Moses. They had
no interest in what his understanding of the Torah might be.
5. Moses is inferior to Akiba. This is demonstrated by the response
of Moses to the Holy One--"Thou hast such a man and Thou
givest the Torah by me!"--and by the placement of Moses behind
the eighth row.2
The Talmud to the Contrary
The Talmud often distinguishes
between those halakhot that are based on Scripture and those that
are not. The clearest expression of this appears in Hag. 10a:
"[The laws concerning] the dissolution of vows hover in the
air and have nothing to rest on. The laws concerning the Sabbath,
festal-offerings, acts of trespass are as mountains hanging by
a hair, for they have scant scriptural basis but many laws. [The
laws concerning] civil cases and [Temple] services, Levitical
cleanness and uncleanness, and the forbidden relations have something
to rest on, and it is they that are the essentials of the Torah."
Some of the halakhot rest upon the Scriptures. Others are simply
rabbinic decrees. Entire portions of rabbinic law are presented
without any basis in the written Torah. Jacob Neusner comments:
"Perhaps the exegetes took for granted that the bed- rock
convictions of the laws also were assumed by the Scriptures. But
they still have not shown us where, in Scripture, they locate
those laws or principles, and I think the probable explanation
is that they could not (and did not care to). That is why they
remind us that Ohalot has much law but little Scripture."3
Implicit in the doctrine of a parallel "Oral Law" given
at Sinai is the recognition that much of halakhah cannot be tied
to the written Torah in any way at all.
Neusner examined a few Talmudic tractates to determine the source
of the different material they contained. He concluded that, "Neither
Kelim nor Ohalot begins in the Priestly Code [i.e. Leviticus +].
Neither tractate develops the lines laid out therein. Indeed,
the most fundamental convictions of both tractates lie wholly
outside of Scripture."4 "Having carefully distinguished
Mishnaic from Pentateuchal conceptions in respect to utensils
and Tents, Kelim and Ohalot, we now see that there is virtually
no fundamental and reciprocal relationship whatever."5
Often the Rabbis cited scripture without maintaining that the
particular scripture cited was actually the source of the ruling.
One verse, sometimes intentionally altered, could be "a hair"
on which a "mountain" of rabbinic regulation was hung.
As I. Abrahams noted: "Such textual changes are not to be
regarded as serious Biblical emendations, but as part of the exegetical
method of the Rabbis for the purpose of halachic and Haggadic
deduction." Neusner says, "The authorities of Mishnah-Tosefta
do not derive their laws from Scriptures. On occasion they do
twist Scriptures to make them fit preconceived conclusions...."6
Or as the Talmud puts it: "Rather, then, it is a Rabbinical
ordinance and the Scriptural verse is merely a support."7
Rabbinic halakhot are often contrasted with the written Torah,
rather than identified with it. Here are some examples: "Is
then the searching for leaven Scriptural; surely it is [only]
Rabbinical, for by Scriptural law mere annulment is sufficient."8
"[G]ranted that food cannot defile food by Scriptural law,
by Rabbinical law it can nevertheless defile."9
There are a variety of Talmudic phrases that indicate that the
halakhot following them are the creation of the Rabbis, rather
than an interpretation of the written Torah. Mayer Gruber has
researched and detailed these. Sometimes the source of the halakhot
is given simply as "the words of the sages," i.e. divre
soferim. The law is authoritative because it has been decreed
by the sages/scribes.
"In mKelim 13:7 (=mTebul Yom 4:6) we encounter another expression
similar to divre soferim. There we read davar hadas hiddesu soferim,
'Scribes innovated a new law.'"10 "Likewise, the exegetical
tradition indicates that the formulae 'for the benefit of the
altar' in mGittin 5:5, and 'for the sake of harmony' in mGittin
5:8 all designate corpora of man-made law."11
The Talmud says that the rabbinic decrees sometimes stand in opposition
to the written Torah. "In mPesahim 6:2 'they enacted legislation
to forbid' is modified by an adverbial phrase missum sevut. This
expression, which is attested also in mShabbat 10:6; mEruvin 10:3,
15; mBesah 5:2 and mRosh ha- Shanah 4:8, designates a corpus of
man-made law, which forbids on the Sabbath or festivals that which
God permits."12
Rabbinic law also permits what the Bible forbids. The most well-known
instance of this is the "prozbul." Biblically, loans
could not be made for longer than 6 years. Every 7th year, the
Sabbatical year, all loans expired. According to the Talmud, Hillel
instituted a legal fiction, the prozbul, which was "a declaration
made in court, to the effect that the law shall not apply to the
loan transacted."13
"[A loan secured by] prozbul is not cancelled. This was one
of the things instituted by Hillel the Elder; for when he observed
people refraining from lending to one another, and thus transgressing
what is written in the Law, 'Beware, lest there be a base thought
in thy heart', he instituted the prozbul."14
In the Talmud, the Rabbis generally do not claim that their law
is either a separate revelation given to Moses or that it is an
interpretation of the written Torah. The Rabbis do claim, however,
that they have the authority to forbid what the Torah permits,
and to permit what the Torah forbids. Torah is national law, understood
as being given by God. In claiming authority over Torah, the Rabbis
claimed sovereign authority over every aspect of life for all
Israel.
NOTES
1. Menahoth 29b, P.190,190n.
2. cf.Sanh.37a Ehrhardt comments: "A second Moses, and greater
than he, as
predicted in Deut. xviii. 15, such is the verdict of this talmudic
appreciation of Akiba. But a second Moses meant a new foundation
of Judaism,
for it had been Moses who had first established Israel as a nation."
"n1. This follows from the eighth row to which Moses is removed--after
the
period of one Aeon, seven 'days'." (cf. Harv. Theol. Rev.,
1945, 177f,
Ehrhardt P.110)
The Talmud to the Contrary
3. Neusner, Early Rabbinic Judaism, P. 27
4. Ibid., P.26
5. Ibid., P.28
6. Ibid.
7. A.Z. 38a
8. Pesachim 10a
9. Pesachim 14a
10. Mayer I. Gruber, "The Mishnah as Oral Torah: A Reconsideration,"
JSJ, Vol.
XV, 1984, P. 117
11. Gruber,119
12. Gruber,121
13. Shevi'ith 10:3 Soncino n.14
14. Shevi'ith 10:3
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(go back)
What Is A Rabbi
Tanakh And Oral Law
The Oral Law As Interpretation
The Historical Development Of Oral Law
A Fence Around The Torah
Talmudic Revisionism
Confronting The Scriptures
Uprooting the Scriptures