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Tuesday, September 21, 2010

The Existence of the Oral Torah I

In previous posts we have discussed the religious needs for an Oral Torah and some of the possible criteria for a law being written or oral. Now we turn to the age-old discussion concerning the reliability of the Oral Torah.


First, it is obvious that the Written Torah requires interpretation, supplementation and application. It is impossible that the Written Torah was given without an oral explanation both of the laws and narratives. Karaism implies the odd outlook that God would give us the Torah without ANY further notion of what to do with it--black marks on a white page. In fact, R. David Nietto in Matteh Dan (Kuzari ha'Sheni) and Chanoch Albeck, among others, argue that the Saducees, contrary to popular belief, did not deny the authority of the Oral Torah in toto. Rather, they maintained that in cases where a better explanation of the Written Torah was possible they had the authority to explain the passages as seen fit.

This Karaitic outlook is even stranger in light of the fact that the Torah mandates harsh punishments for not fulfilling or transgressing the law (Brit mila, eating on Yom Kippur, Paschal service etc.). If God really cares about right action then the written word is not enough to insure such action! On the other hand, it could be argued a) Torah was perhaps more flexible in its commandments in ancient times, and b) G0d specifically wanted Man to supply the interpretation.

Furthermore, considering the ancient context into which the Torah was given, Orality played a much larger role than in modern times. It may be argued that in the ancient world oral traditions were the main event while the written text merely supplimented it! For example, l’havdil, Hammurabi’s code, according to most scholars, was not meant to be a legal code but was meant to show that gods that he was a just king and to present a model of justice. Similarly, perhaps the written Torah’s primary purpose, as a covenantal document, is to present a model of stipulations of the covenant. The Written Torah is a paradigm which informs and is informed by the Oral Torah.

Arguments from Torah for the existence of an Oral Torah

The Torah was aware that it had not covered all cases or details (as is impossible for any text to do) as in Devarim 17:8-11. There it is implied that there should be local courts and the high court. See Bamidbar 35:24; Shemot 21;13-14. Sefer ha’Kabbalah (I, 92) brings Shemot 18:14 which tells us that Moshe sat and judged the people from morning till evening. Surely, many elaborations and clarifications of law must have emerged from the cases that he judged.

Urbach points out that “there are four instances in the Torah itself in which the law is given only as a result of incidents which occurred.” Vayikra 24:12-16; Bamidbar 9:6-11; 15:34-35; 27:1-11. However, there are sources which maintain that these laws were originally taught to Moshe on Har Sinai but not fully revealed. The simple reading, though, implies that there was a (Divinely-ordained but human initiated) development of Halakha within Torah itself.

There are other instances where the Torah implies an oral tradition: 1) Devarim 12:21 states “And you shall slaughter of your flocks and cattle... as I have commanded you” but we never find a command for shechitta. However, see Ramban there for an alternative interpretation. 2)

Lastly, R. David Nietoo (Matteh Dan; also see M.Elon in “Jewish Law: History, Sources, Principles, I, pgs. 194-199) argues that we find a Pre-Sinaitic oral tradition of morals. This is demonstrated by the many instances throughout the Torah where individuals, cities, nations or the entire world is punished for transgressing non-explicit commands. Those Rishonim, however, who believed in natural law had no need to rely on an oral tradition of morals. Alternatively, there could have been other prophetic instruction.

Arguments from Nakh

It is important to keep in mind that the stories in Nakh are not primarily about halakha and therefore any information we get is coincidental.

Examples in Tanakh of a justice system may include: II Shmuel 20:25; Yirmiyahu 18:18; Haggai 2:11; Malachi 2:7; Ezra 7:25-26, 10:7-8; Nechamia 8:5-8 (and see comments of Hecateus brought in Urbach’s “The Halakha”) and II Divrei ha’Yamim 19:5-8.

The following are only some specific examples and are mostly taken from C. Albeck:
1) The gezerot of Yehoshua 24:25 (according to some commentators).
2) On the time to bring the Karbon Omer: Yehoshua: 5:11; Vayikra 32:12; Vayikra Rabbah 23:14; RH 13a).
3) Cutting the stones for the mizbeach: Shemot 20:22; Devarim 27:5 and I Melachim 5:31;6:7.
4) Mahtztit ha’Shekel: Shemot 30:11-16 (which sounds like a hora’a sha’ah ) and II Melachim 12:5; II Divrei ha’Yamim 24:6 , 7 (mitzvah l’dorot).
5) On the status of Rosh Chodesh: I Shmuel 20:19; II Melachim 4:23; Yeshayahu 1:13
6) Shabbat: Yeshayahu 58:13. In the Torah Rosh Chodesh is only different in its karbanot.
7) Carrying on Shabbat: Yirmiyahu 17:21-22 (Matteh Dan argues that this implies a prohibition for carrying anything since Yirmiyahu was talking to kings and princes who do not usually carry heavy burdens); Amos 8:5 (maybe); Nechemiah 10:30-32; 13:15.
8) Intermarriage: Nechemiah 13:16-17; I Kings 11:1-2. (See Matteh Dan for extensive discussion).
9) Prayer: Daniel 6:11 (Tehillim 55:18); I Shmuel 7:5; I Melachim 8:30; Yoel 1:14
10) Fast days: Zecharia 8:19 and 7:5
11) Redemption of property and acquisition: Rut 4 (especially 4:7). In Vayikra 25:25, redemption of property already sold to a non-family member is discussed, while in Rut it is dealing with redeeming the property before it falls into the hands of a non-family member. Also Yirmiyahu 32.
12) Kodshim v’Taharos: a) Chaggai 2:12-13; b) II Divrei ha’Yamim 35:7-9 (Devarim 16:2 and Shemot 12:5, Mekhilta Bo, chapter 4); c) II Divrei ha’Yamim 35:13, Devarim 16:7, Shemot 12:9 (see Ibn Ezra there); d) II Divrei ha’Yamim 35:11-14 (see Shemot 23:18; 34: 25 and Zevachim 37a); e) II Divrei ha’Yamim 29:22,24; 35:6, 11, 17; Ezra 6:20; Yechezkel 44:10-11 (The Kohanim and Levi’im did the shechitta even though the halakha is that it was kasher for a non-kohen to do it. The minhag, however, was for the kohanim to do it, see Vayikra Rabba 22:7 for example).
13) Ma’aser: Melachi 3:10, Nechemiah 10:38;12:44; 13:5, 12; II Divrei ha’Yamim 31:5-12 (see Devarim 12:6).

To be continued...

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