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.
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,
The Talmud to the Contrary
3. Neusner, Early Rabbinic Judaism, P. 27
4. Ibid., P.26
5. Ibid., P.28
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
13. Shevi'ith 10:3 Soncino n.14
14. Shevi'ith 10:3
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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