THE HISTORICAL DEVELOPMENT OF THE ORAL LAW
The contemporary sources bear witness that there was a significant body of Pharisaic, and then rabbinic, law in the first century. The sources do not, however, indicate in any way that the Pharisees, and then the Rabbis, claimed at that time that this law came from Sinai or that it was solely an interpretation of the Torah.
The sources all speak in terms of tradition or an "oral tradition."1 None of them speak of an "Oral Law." "We thus have indications that in the time of Josephus and Philo oral transmission was looked upon as the characteristic medium of Pharisaic tradition."2 Though Josephus and Philo mention Pharisaic tradition, they do not mention an "Oral law."
The Pharisees did try to increase the force of their tradition by placing its origin as far back in the past as they could. "Josephus brings this out when he says of the Jewish leaders, 'Their endeavour is to have everything they ordain believed to be very ancient.'"3
Josephus gives some of the political history of this tradition. He tells us, for example, about the reign of Alexandra towards the end of the Maccabean period. "So she made Hyrcanus [her son] high-priest because he was the elder, but much more because he cared not to meddle with politics, and permitted the Pharisees to do everything; to whom also she ordered the multitude to be obedient. She also restored again those practices which the Pharisees had introduced, according to the traditions of their forefathers, and which her father-in-law, Hyrcanus, had abrogated."4
In this account, the traditional practices of the Pharisees were enforced upon the people by the ruling governmental power. The extent of the common observance of Pharisaic traditions depended upon the extent of Pharisee's own political power.
The Sadducees had a different power base - the Temple and its institutions - and a different view of these traditions. Josephus tells us, "What I would now explain is this, that the Pharisees have delivered to the people a great many observances by succession from their fathers, which are not written in the law of Moses; and for that reason it is that the Sadducees reject them, and say that we are to esteem those observances to be obligatory which are in the written word, but are not to observe what are derived from the tradition of our forefathers..."5
"...Josephus not only characterizes the Pharisaic ordinances as 'unwritten', but as 'handed down by the fathers' (ek pateron diadoke )."6 "A similar expression paradosin ton presbuteron (traditions of the elders) is used in the New Testament to designate the Pharisaic oral traditions. [Mk.7,3.5 (Mt. 15,2); cf. Galatians 1,14 and Eusebius, Ecclesiastical History, IV, 22,8 who refers to the agrafos paradosis (unwritten traditions) of the Jews.]"7
The Dead Sea Scrolls reinforce the point. "In sum, the Qumran literature provides concrete and abundant examples of written halakhic texts from the pre-rabbinic period. It moreover lacks any trace of the distinction between Written Law and Oral Law which is characteristic of rabbinic sources and which serves as the basis of the contrasting forms of transmission."8 "
Joseph M. Baumgarten and Lawrence H. Schiffman have likewise shown that the Qumran law books speak neither of an oral Torah nor of two Torahs....It should be no less significant than the absence of the term Oral Torah from Josephus' description of the Pharisees and from the Qumran law books that this term is similarly absent from the Mishnah and the Tosefta. Moreover, the term 'two Torahs' is also absent from the Mishnah while none of the three attestations of this term in the Tosefta refers to an Oral and a Written Torah. In tSanhedrin 2:5 'two Torahs' refers to the two scrolls of the pentateuch to be written by and for every king of Israel. In the two remaining cases - tHagigah 2:9 and tSotah 14:9 - 'two Torahs' is the term of disparagement applied to the controversies between the disciples of Hillel and Shammai, who, it is alleged, created their two separate doctrines because they failed to study carefully the single Torah which they all received from Hillel and Shammai."9
These traditions and rabbinic decrees were not called "Oral Law" in the first century. Nevertheless, for Pharisees especially, they were of great importance. "'The most necessary business of our whole life,' writes Josephus, 'is to observe the laws which have been given us, and to keep those rules of piety that have been delivered down to us.'"10
The Development of the Doctrine of the Oral Law
Josephus wrote his Antiquities of the Jews in about 93 AD. Apparently, the concept of an Oral Law received from Sinai, either directly or through authorized interpretation, had not then been put forth. The Pharisees claimed that their traditions gave the authoritative interpretation of Torah, but they did not claim to have a separately revealed oral law. "Hence, despite the insistence of the Pharisees on the validity of their ordinances, they never added them to the written canon."11
When then did the Rabbis begin to speak about an "Oral Law"? "As has been noted, the picture of Moses' oral formulation and transmission of traditions was certainly held by rabbinic masters from Judah b. Ilai onwards, hence ca. A.D. 150. So between ca. A.D. 100 and ca. 150 the process described in b. 'Eruvin 54b probably took shape."12 "While the process may have begun with Joshua and Eliezer, it was probably 'Aqiba who fully developed them, for it was he who set forth the foundations of the Mishnah, and it was in his time that the institution of the Tanna, or reciter, is first referred to."13
The Oral Torah became the distinctive of Israel. "...said R. Avin, [God said] 'Had I written for you the bulk of my Torah, you would be considered like a foreigner.' [For] what [is the difference] between us and the Gentiles? They bring forth their books, and we bring forth our books; they bring forth their national records, and we bring forth our national records.' [The only difference between Israel and the Gentile nations is that a portion of the Torah remains oral, and has a special claim upon the nation of Israel.]"14
"In a 4th century Palestinian midrash we read: 'R. Judah b. Shalom said: Moses desired the Mishnah to be also in writing, but the Holy One Blessed Be He foresaw that the nations of the world would translate the Torah, read it in Greek, and assert: 'We, too, are Israel.' The Holy One Blessed Be He thereupon said to Moses: 'Were I to write for thee the multitudes of my Torah then they would be considered as a stranger' (Hosea 8,12). Why so? Because the Mishnah is the mysterium of God which He transmits only to the righteous.'"15
The Oral Torah became the rabbinic means of keeping their followers separated from the Gentiles, the Christians, and, especially, the minim, the Jewish heretics. This teaching of Two Torahs conflicts with Ex.12:49: "There shall be one Torah [torah akhat] for the native-born and for the alien living among you." If 'Abraham kept My Torahs' is to be understood to mean a Written Torah and an Oral Torah, then "one Torah for the native-born and for the alien" would have to be understood to mean only a Written Torah.
At least until the end of the first century, the Rabbis openly enacted new legislation, without maintaining that they were presenting an Oral Torah parallel to the written Torah given at Sinai. "I.R.Weiss in his History of the Development of the Oral Law tells us that forty-two Halakoth are said to have been given 'to Moses from Sinai,' but that many, indeed the large majority, of them were not so entitled because the Rabbis thought they really had been given to Moses, but for other reasons..."16
Throughout the entire Talmud, only forty-two halakhot are distinguished as having been given "to Moses from Sinai." Whether that is understood to indicate a direct revelation given to Moses or to indicate an authorized interpretation of the written Torah, one thing is quite striking: No such claim is made for the overwhelming remainder of halakhot. What then is halakha that was not given "to Moses at Sinai?" What is its source? and its purpose?
Later Rabbis said that, "Oral Torah is what the sages of Israel and Keneset Yisra'el innovated by their own perception of heart and mind of the will of God, and that is the understanding that God apportioned to them according to the limits of their capacity."17
The claim was that all the rabbinic innovations - forbidding what Torah permits, and permitting what Torah forbids - were still tied to the Written Torah. "All that is inherent in Written Torah, was revealed to Moses in potential form, and to R. Aqiva in actu."18 That revelation even included "whatever an able student may in the future propound before his teacher."19 The Scriptures, with the normal use and meaning of language, offered no basis for the doctrine of an Oral Law, nor for the authority of the Rabbis. However, the rabbinic claims are not based upon the normal use and meaning of language. They are based upon Rabbi Akiba's unique method of interpretation.
1. All peoples and cultures (and probably every person as well) accumulate traditions. Traditions are an almost indispensable part of life. Given that, it was inevitable that traditions would develop concerning the fulfillment of Torah. As Hayim Donin noted, "The Written Torah commands us to 'bind them as a sign upon your hands and as frontlets between your eyes.' This reference to tefillin leaves us in the dark as to how they were to be made up, what they were to consist of, how they were to be donned...The Written Torah prescribes capital punishment for various crimes. What legal rules and procedures had to be followed before such a verdict could be handed down? What were the limitations? The Written Torah does not say." Hayim Halevy Donin, To Be a Jew, Basic Books, 1991, P.26
In terms of tefillin, it could be argued that the lack of specificity indicated God's indifference to the particulars; and in terms of judicial procedure, that God had clearly laid out the principles for making judgments. While that may be so, the tefillin and the judicial inquiry still had to be made in some particular way. That would inevitable lead to the development of tradition or sets of different traditions. The issue that concerns us here is the source of the tradition - man or God.
2. Baumgarten, J.M., "The Unwritten Law in the Pre-Rabbinic Period," JSJ,
Vol.III, no.1, 10/72, P. 15
3. C. Apion, II., xv, §152, in A. Lukyn Williams, Talmudic Judaism and
Christianity, S.P.C.K., London,1933, P.46
4. Josephus, Flavius, The Works of Josephus, translated by William Whiston,
Hendrickson Publishers, Peabody, MA., 1985 Ant.13,16,2
5. Josephus, Ant.XIII,X,6
6. Baumgarten, p13
7. Baumgarten, p14
8. Baumgarten, p12
9. Gruber, Mayer I., "The Mishnah as Oral Torah: A Reconsideration," JSJ,
Vol.XV, 1984, Pp. 113-114
10. Williams, A.Lukyn, Talmudic Judaism and Christianity, SPCK, London, 1933 Pp.43-44
The Development of the Doctrine of the Oral Law
11. J.M. Baumgarten, "The Unwritten Law in the Pre-Rabbinic Period," JSJ,
Vol.III, Oct. 1972, P.23
12. Neusner, Jacob, Early Rabbinic Judaism: Historical Studies in Religion,
Literature, and Art, E.J. Brill, Leiden, 1975 P. 85
13. Neusner, Early Rabbinic Judaism, P. 86
14. The Talmud of the Land of Israel, Vol. 2, Peah, Trans. by Roger Brooks, U.
of Chicago Press, Chicago, 1990, P.127
15. Baumgarten, P.18
16. Williams, P.41
17. QM 80b; Elman, Yaakov, "R. Zadok HaKohen on the History of Halakha," Tradition: A Journal of Orthodox Jewish Thoughts, Vol.21, No.4, P. 15
18. Elman, P. 9
19. Lev. R. 22,1; j.Peah II, 6,17a; j. Megillah IV, 1, 74a
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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