11 The Oral Torah



The situation is no less problematic when it comes to a belief in the Oral Torah and the Divine authority of practical Halachic rulings. Maimonides states in the foreword to his Mishnah commentary that the Oral Torah consists of five parts:

"Traditional exegesis [perushim mekubalim], received through the tradition from Moses; there are hints to these laws in the Scripture and they may be derived rationally. There is no disagreement concerning these laws, and when one says, 'This is what I received from tradition,' it should not be disputed."

"The laws of which it is said 'Halacha given to Moses at Sinai,' and there are no logical arguments in favor of these laws... These laws, also, are not disagreed with."

"The laws derived rationally, and there was a disagreement [amongst the Sages] about them... and in these matters the law is determined by the majority; this happens when a matter is altered [two sides understand the matter differently]... And you can find them [the Sages] throughout the whole Talmud investigating the reasons and the arguments which caused disagreement between the parties."

"The edicts [gezerot] which were established by the prophets and the Sages in each and every generation to make a fence around the Torah. G-d commanded us to follow these laws, for it is written 'Therefore you shall keep My guard' [ushmartem et mishmarti (Leviticus 18:30)], about which we had received from tradition, 'Make another guard around My guard [of the Torah commandments]' (Tractate Yevamot 21a)."

"The laws which are based on paradigms of thinking and consensus about the things common among people, in which there is neither addition nor diminishment of any commandment... These laws are called regulations and customs [takanot uminhagim]. It is forbidden to violate them, for King Solomon said about the one who breaks these laws, 'He who breaks a fence, a serpent will bite' (Ecclesiastes 10:8)."


From the above words of Maimonides it seems that he bound the obligation to follow Chazal's regulations and customs to the verse of Ecclesiastes 10:8. But in the Mishnah we find: "All the Holy Writings impurify one's hands. The Song of Songs and Ecclesiastes impurify the hands. Rabbi Judah says the Song of Songs impurifies the hands and about the Ecclesiastes there is disagreement. Rabbi Yossi says Ecclesiastes does not impurify the hands, and about the Song of Songs there is disagreement... Rabbi Simeon the son of Azzai said, thus I received from the seventy-two elders [the Great Sanhedrin] on the day when they seated Rabbi Eleazar the son of Azariah in the Yeshiva, that the Song of Songs and the Ecclesiastes impurify the hands... Rabbi Jochanan the son of Joshua the son of the father-in-law of Rabbi Akiba said, as the son of Azzai told, thus was the disagreement and that is the Halachic decision which they ruled."

(Tractate Yadaim, chapter 3, mishnah 5)

To remove any doubt, R' Obadiah of Bartinura, the most accepted commentator on the Mishnah, explains: "'Ecclesiastes does not impurify the hands -- because it is the wisdom of Solomon himself and was not said through the Divine spirit." That is, about a thousand years after King Solomon's death the Sages of the Mishnah discuss which of his books are holy (and will therefore enter the Scriptural canon) and which are not.

The very authority of the book of Ecclesiastes as a part of the Holy Writ was determined by the Sages themselves. Of course, it may be said that Maimonides did not mean Ecclesiastes 10:8 to be a positive authority for the Sages to establish regulations and customs, only a recommendation to ordinary people to follow them lest bad things happen -- but in this case, what gives the Sages authority to establish regulations and customs?

Concerning the regulations and customs of the Sages, Maimonides said they are based "on paradigms of thinking and consensus about the things common among people." He also says that in every place where it is written, "Rabban Gamliel the Elder made a regulation" [hitkin Rabban Gamliel haZaken], a law of the "regulations and customs" type is meant. But in Tractate Eiruvin 45a we find: "All who go out [of their Sabbath domain] in order to save people [from the enemies], return to the place they came from... As we have learnt: in old times, they did not move from there all the day; Rabban Gamliel the Elder made a regulation that they can move 2000 amahs in each direction. And not only they [those who come to fight the enemies], but even a midwife who comes to assist a childbirth... they are as the people of the city they came to, and they have 2000 amahs in each direction."

This Gemara speaks of the issue of a Sabbath domain, a prohibition of the Torah as Maimonides says in Sefer haMitzvot: "Commandment number 321 is the prohibition of going out of a state's domain on Sabbath, as is said, 'Let no man go out of his place on the seventh day' (Exodus 16:29). From tradition it is known that [the area beyond] the bounds of the domain, where one cannot go, is anything which lays further then 2000 amahs out of the state, even a single amah [further]. But one is permitted to go 2000 amahs in each direction."

"A state" here is not a country, but the city, town or village in which one dwells (see Maimonides, The Laws of Sabbath 27:1). The Sabbath domain is the area which lays no further than 2000 amahs (3200 to 4000 feet, according to different Halachic opinions) from the state's bounds. And though this distance is given to us through tradition, the commandment of not going beyond the Sabbath domain is from the Torah.

True, for the sake of saving a Jew's life one may violate the Sabbath and go out of the Sabbath domain, as may people going to protect the Jews from their enemies or the midwife who goes to another city to assist a childbirth. But their Sabbath domain is measured from the bounds of the city where they began the Sabbath, and if on their mission they went out of this domain, when the mission is ended they cannot move from their place, lest they find themselves going beyond the domain's boundaries, which is forbidden by the Torah. And yet Rabban Gamliel the Elder "made a regulation" and permitted their going 2000 amahs in each direction from the place where they end their mission, even if it is far beyond their initial Sabbath domain. This regulation is Halachically valid to this very day (see Shulchan Aruch, Orach Chayim 407:1).

Thus we find our Sages OBM abolishing Torah commandments in favor of "paradigms of thinking and consensus about the things common among people."

To Chazal, by the way, this did not seem remarkable. They thought it quite possible that somebody would abolish plain words of the Torah: "Rabbi Yossi the son of Chanina said: four edicts made Moses over Israel, four prophets came and abolished them. Moses said, 'So Israel will dwell in security, the spring of Jacob alone' (Deuteronomy 33:28) -- Amos came and abolished it, as is written, 'How will Jacob arise?' (Amos 7:5), and it is written, 'The Lord has repented for this...' (Amos 7:6) Moses said, 'And among these nations you will find no calm' (Deuteronomy 28:65) -- Jeremiah came and said, 'Go calm Israel' (Jeremiah 31:1). Moses said, '[G-d] visits the iniquity of the fathers upon the children' (Exodus 34:7) -- Ezekiel came and abolished it: 'That soul which sins will die' (Ezekiel 18:20). Moses said, 'And you will be lost among the nations' (Leviticus 26:38) -- Isaiah came and said: 'And it will come to pass in that day that the great trumpet shall be blown...' (Isaiah 27:13)." (Tractate Makot 24a)
As one can well see, this passage treats Torah verses as Moses's own edicts. Though it may be said that Deuteronomy 28:65 and 33:28 are quotes from Moses's speech to Israel (just as there are quotes from Abraham, Jacob, and Laban in other places), Leviticus 26:38 (as well as all of Leviticus 26:1-45) is said by the Torah itself to be G-d's own speech, and Exodus 34:7 is understood by Rabbinic tradition as G-d's own words, as is clear from the major Rabbinical commentaries on this verse. So how could the Sages say that Exodus 34:7 and Leviticus 26:38 are Moses's own edicts? Moreover, this Talmudic statement implies that one may come generations after the Torah was given and abolish its words! Is this how one treats the Divine text?

One may say that these prophets spoke not in their own names, but in the name of G-d, so the abolishment of Torah decrees came from the Divine itself. But even if this were the case, it clearly contradicts one of the principles of our faith -- that the Torah will never be changed. This is one of the things which distinguish us from the Christians, who believe that after giving the Torah G-d changed His mind and gave humanity the "New Testament."

Moreover, even provided that these prophets spoke in the name of G-d, the Gemara ascribes the abolishment of Torah decrees to them personally. This, however, is consistent with the Sages' relation to the Holy Writ -- though these books claim to contain the words of the Living G-d (the phrase "Thus said the Lord" appears 419 times in the Prophets and the Writings) Chazal did not conceal that they, on their own, determined which books would enter the Holy Writ and which would not.

We learn this not only from the above-mentioned mishnah in Tractate Yadaim, but also from several places in the Talmud. The Gemara in Tractate Shabbat 13b says: "Rav Judah said in the name of Rav: behold, may that man be remembered for good, Chananiah the son of Chizkiah is his name, for were it not for him, the book of Ezekiel would be filed away because its words contradicted the words of the Torah. What did he do? They gave him 300 measures of oil [for lighting], and he sat in the attic and elucidated the book."

That is, were it not for Chananiah's elucidation the book of Ezekiel -- a prophet of G-d in whose book the phrase "Thus said the Lord" appears 126 times -- would have been "filed away" for generations and would not have entered the Holy Writ.

Sometimes we even find Chazal disagreeing on whether certain books would enter the Holy Writ or not, without a final halachic decision. Thus, in Tractate Sanhedrin 100b we find: "Rabbi Akiba said: even one who reads external books [has no share in the World to Come]. We have learnt: these are books of heretics. Rav Joseph said: even the book of the Son of Sirach it is forbidden to read." Rav Joseph considered the book of the Son of Sirach one of the "external books," which it is forbidden to read; he certainly did not consider it part of the Holy Writings. And so we find in Midrash Kohelet Rabba (Vilna edition, chapter 12): "Everyone who brings into his house more than 24 books [which Chazal included in the Holy Writ], brings turmoil into his house, and this is said of books like the Son of Sirach and the Son of Tagla."

However, we find in Tractate Bava Kama 92b: "This matter is written in the Torah and repeated in the Prophets, and a third time in the Writings... And a third time in the Writings, when it is written, 'Each bird will resort to its like, and a man with those of his like'." But the verse "Each bird will resort to its like..." is not found anywhere in the Writings, the Tosfot there say that "perhaps it is in the book of the Son of Sirach," and the Masoret HaShas refers to it as a verse in the 13th chapter of the Son of Sirach. The Amora who made this statement (Rabba the son of Marei) saw the book of the Son of Sirach as a part of the Writings!

[As a sidenote, I should add that the "verse" brought in the Gemara was actually compiled from two different verses: "All flesh consorts according to kind, and a man will cleave to his like" (Son of Sirach 13:16), and "Each bird will resort to its like; so will truth return to those who practice it" (Son of Sirach 27:9).]

Several more times in the Talmud and in the Midrash the Sages give exegesis on verses from Son of Sirach as though it were part of the Holy Writ (see e.g. Chagiga 13a, Bereshit Rabbah, section 91, etc.). In Ketubot 110b they even brought the phrase "All the days of the poor are evil" as "written in the book of the Son of Sirach," though this phrase is found in Proverbs 15:15 and does not appear in Son of Sirach. Thus words of a book which according to some one is forbidden to read are mixed freely with a verse of the canonic Holy Writ! In two other places in the Talmud (Bava Batra 98b and 146a) Chazal "quoted" from Son of Sirach words that are not to be found there.

Rav Saadiah Gaon, in his Sefer haGaluy, seems to have been the last Rabbinic leader who directly quoted the Hebrew text of the Son of Sirach, but even later rabbis indirectly quoted verses, citing the quotations brought in the Talmud and in the Midrash (see e.g. R' Joseph al-Ashkar's Mirkevet haMishneh on Avot 6:2). R' Simeon Ben Tzemach Duran, one of the most prominent rabbis of the 15th century, even thought it appropriate to use stories of the Son of Sirach as arguments in Halachic discourse (see the Tashbetz Responsa, part 3, paragraph 263) -- but what he thought to be a story from the book of the Son of Sirach was in fact from Alpha Beta deBen Sira, a later midrash which is thought to have been compiled in the period of Geonim (Encyclopedia Hebraica, Ben Sira, alpha beta de, v. 9, p. 167). This midrash tells a story of how Ben Sira (the son of Sirach) was born of Prophet Jeremiah's daughter, impregnated by her father's sperm from the bath water. Nothing like that is found in the book of the Son of Sirach itself.

But actually, the book of the Son of Sirach is only one of those "external books" Chazal "filed away" from the Holy Writ. There are many others -- some of them entered the Christian Bible (as in the Apocrypha of the King James Version), and some -- like the above-mentioned "book of the Son of Tagla" -- were lost forever. But even the "external books" which are in our possession are written in the style of the Holy Writ: they also cite the explicit words of the Divine and the phrase "Thus said the Lord" is not uncommon there (see Baruch 2:21, II Esdras 1:12, 2:1, 2:10, 15:21). And yet Chazal separated these prophetic books from those, thus judging -- centuries after the books were written -- which "Thus said the Lord" is valid and which is not.

So we find our Sages determining quite openly, and not always unanimously, the composition of the Holy Writ -- and yet we consider its books as words of prophecy, which, by the time of Chazal, had ended. Can you explain how this is possible? Even if prophetic content can be judged by one who is not a prophet, what standard would he use? What standard was used by the Sages?

Referencing back to what I wrote earlier, that once we know that in our generation there existed great Tzaddikim who attained the level of having ruach hakodesh (Divine inspiration), I believe that we do not have the luxury any more of assuming that people that great have not lived in previous generation, and that it is only responsible to seriously consider that they have. This is especially true when we have the many references throughout the Talmud and the Midrashim, that the Sages were truly on such great levels.

I believe the answer to your question can be understood from Megillah 14a: “Many prophets were established for Israel – double the amount of those who left Egypt – but the prophecies that were needed for future generations were written down, and the prophecies that were not needed [for future generations], were not written down.”

In other words, the reason why the Sages rejected certain books from the Scriptures is not because they believed that they were not said under Divine inspiration, or that they doubted the validity of “Thus says G-d”. Rather, after having a tradition that the completed Tanach would only comprise 24 books, they were able to decide, as they were on a very high level themselves, which prophecies were important enough and relevant for future generations to be included in the Scriptures, and which not. This would explain why out of the 1,200,000 prophets that arose for the Jewish people, we only have recorded the prophecies of 48 prophets, and even of them, only select prophecies.

This would also be the reason why the Sages were considering to “file away” the book of Ezekiel. They didn’t disagree that it was the word of G-d, but as the purpose of the Tanach was to provide the prophecies that were relevant to future generations, they saw that too many people were getting confused by it, as its words seemed to “contradict the words of the Torah.” It was only due to the efforts of Chananiah the son of Chizkiah, who labored to compile, and teach over, its correct interpretation, that the Sages felt comfortable in retaining it as part of the Holy Writ.

As to your difficulty about the source of our obligation to listen to the edicts of our Sages, I am actually quite surprised, as the answer to this question is provided from a reference from Maimonides’ writings that you mention much later in your letter. In the Laws of the Disobedient, 1:1-2, Maimonides writes: “The Supreme Beit Din in Jerusalem is the basis of the Oral Torah, they are the pillars of teaching and from them law and justice spread to all Israel. About them the Torah promised, ‘According to the Torah they will teach you,’ which is a positive commandment, and everyone who believes in Moses our teacher and his Torah is obligated to rely upon them in all religious practices. Whoever does not follow their instruction violates a negative commandment, as is said: ‘Do not deviate from what they instruct you, neither to the right hand nor to the left’... The matters they learn from tradition, which are the Oral Torah, as well as the matters they learn on their own in one of the methods of the Torah's exegesis, if they see the issue this way or that, as well as the matters where they made a fence around the Torah according to what the situation demands, which are the edicts, and the regulations and the customs -- in each and every one of these three categories, it is a positive commandment to obey them [the Sages], and whoever violates one of these laws, violates a negative commandment [of the Torah]. The Scripture says, ‘According to the verdict of law which they teach you’ -- these are the regulations and the edicts and the customs, which they teach people to strengthen the religion and to put the world aright; ‘And according to the judgment which they tell you’ -- these are the matters they learn from the Law in one of the methods of the Torah's exegesis; ‘From what they instruct you’ -- this is the tradition they received one from another.”

Accordingly, it is understood that the obligation to keep the edicts of our Sages, is derived from the Torah itself. The verse from Ecclesiastes would be referring to the punishment of one whom, in those days, blatantly disregarded them.

I strongly disagree with your suggestion that the Sages were willing to abolish the Torah’s commandments, as well as your citing as an example, the edict of Rabban Gamliel regarding the Sabbath domain, but first, some clarification is in order:

There are three opinions regarding the prohibition of the Sabbath domain. According to Rabbi Simon ben Karsena (Jerusalem Talmud Eiruvin, chapter 3, end of halacha 4), a Biblical prohibition does exist, but the Sabbath domain extends to the length of 12 mil (a walk of around 4 hours and 40 minutes). The limit of 2000 amahs, according to him, is only a Rabbinical prohibition. The second opinion, is the opinion of the Babylonian Talmud, according to some Rishonim, like Nachmanides and the Rashba, who conclude that the Sages of the Babylonian Talmud held that there is no biblical prohibition at all of the Sabbath domain, and one can walk on the Sabbath as far as one wishes. According to them, the amount of 2000 amahs is only a Rabbinical decree. It is only the opinion of Rabbi Akiva (mentioned in many places, but one reference is Mishnayot Sotah 5:3), that the Biblical boundary for the Sabbath domain is 2000 amahs. Accordingly, it is very hard to have a question against Rabban Gamliel the Elder, as he was the grandfather of Rabbi Akiva’s teacher, and there is no reason why we must constrain his opinion, to the opinion of Rabbi Akiva.

This would only be a question if a codifier of Jewish law simultaneously ruled like the opinion of Rabbi Akiva – that the Biblical dimensions of the Sabbath domain is 2000 amahs in all directions – as well as the edict of Rabban Gamliel, who allowed people to travel further in certain circumstances. And while it is true that Maimonides intimates in his Sefer HaMitzvot that he agrees with the opinion of Rabbi Akiva, that the Biblical prohibition forbids one traveling further than 2000 amahs, he explains in his Mishneh Torah in further detail, in the Laws of the Sabbath 27:1 and 28:19, that the Biblical domain extends to 12 mil, while the measurement of 2000 amahs is only from the Sages. Further, Maimonides elucidates in one of his letters (Kovetz Teshuvat HaRambam V’Igrotav, Letter 156): “Did we not write in Sefer HaMitzvot, in Mitzva 321 of the negative commandments, that the verse ‘Let no man go out of his place’ is a Biblical prohibition against walking [outside the Sabbath domain] on the Sabbath, and we brought a proof [that this is so], from the ruling of the Sages that one receives lashes [as punishment] for going past those boundaries according to the Torah, [but] we established in that work that we would only mention Biblical commandments ... and I did not explain there the difference between 2000 amahs and between 12 mil, because the purpose of that book is not to know the [entire] study of the commandments, rather only the knowledge of their [general] concepts, while in the work [of Mishne Torah] we explained this [in its full detail] in alignment with the purpose of that work.”

Alternatively, this would be a valid question if one understands the edict of Rabban Gamliel as applying even if one has left the measurement of 12 mil, that in those special circumstances one can walk further than that limit, even though it would go against the Biblical prohibition. Because of this, the Minchat Chinuch, in his commentary to Commandment 24, explains that the edict of Rabban Gamliel would only apply within the limit of 12 mils; if one had walked beyond that, he would not be able to walk a further 2000 amahs, as such an edict would go against the Biblical prohibition. Alternatively, Nachmanides writes in his commentary to Eiruvin 43a, that one would be able to walk a further 2000 amahs even if one left the boundary of 12 mils, as since one left the Sabbath domain in a manner that the Torah permits (i.e. to save a life), the Torah considers that the Sabbath domain only starts from the place that he reaches.

A third answer can be suggested, by noting that the approach of Rabban Gamliel, as can be seen from here and other places in the Talmud, follows in the footsteps of his illustrious grandfather, Hillel, who established the edict of Pruzbul (Shevi’it 10:3), and allowed depositing money in the Temple’s treasury to reacquire one’s house (Eirchin 9:4). They felt that in deciding the law, it was important to take into account the spiritual level that the people were up to, unlike other Sages (such as Shammai and his disciples) who focused more on what the ideal level should be, without taking into account the level the people were up to (which is possibly why almost in all cases, the law is not decided like them).

Rabban Gamliel recognized that his generation was not holding on the higher spiritual levels of previous generations, to the extent that if one of the populace was called to an emergency on the Sabbath that would entail them leaving the Sabbath domain, he would refuse doing so, knowing that after the emergency was over, he would not be able to move more than just 4 amahs. Therefore, Rabban Gamliel taught that in dealing with such a reality, the Torah itself allows one to move up to 2000 amahs after the emergency, in order that when the next emergency arises, one would be willing to go and save a life. In other words, since the Torah that commands us to keep the Sabbath, also commands us that in certain situations one must break the Sabbath, for example, to save someone’s life, Rabban Gamliel taught that the Torah’s command to violate the Sabbath even extends to a previous Sabbath, if one would not be willing to respond to an emergency without that provision.

Accordingly, when the Talmud says that before Rabban Gamliel’s times, the people did not move from where they were at all, after an emergency, that was not a mistaken understanding on their part, or a needless stringency; since they were on a higher level, and were willing to respond to future emergencies even with the foreknowledge that they would have to remain in their place for the rest of the duration of the Sabbath, the Torah required from them to do so.

This idea, in turn, is the key to answering your next question, of how later prophets could abolish the edicts of Moses.

I think you are correct in suggesting that these edicts remain the word of G-d, but that the reason why the edicts are called the ‘edicts of Moses’ is because he was the one who said them. But I don’t believe that Rabbi Yossi is trying to say that Moses’ statements were incorrect. Rather, his edicts were addressed to the Jews in the desert, who were on a higher level than the following generations, and therefore, were accordingly held at a higher standard as well. By the times of Amos and Jeremiah, it was not fair that the people should be held to that higher standard, as they were not on that level any more. Therefore, the edicts about them were different than the Divine edicts about Moses’ generation, to reflect that reality.

This explanation does not go against our belief that the Torah will not change, as I mentioned previously that the Rishonim explain the meaning of the verse (Deuteronomy 13:1): “Everything I command you … you shall neither add to it, nor subtract from it,” as referring to the commandments – that one cannot add or subtract to them, which, in turn, brings us to the belief that they shall never be changed.  

And finally, Ben Sira. I feel forced to disagree with your presentation of Rav Joseph’s opinion, that it is forbidden to read Ben Sira, as later on, on that very same page, Rav Joseph also says that, “the worthy things that [Ben Sira] contains, can be expounded upon.” If it is forbidden to read, how can we expound on it?

Rabbi Jacob Emden, on his glosses to the commentary of Maimonides on Sanhedrin chapter 10, explains: “But there are found in [Ben Sira] also words of proper conduct. Nevertheless, the Sages distanced it [from the people] to read from it on a regular basis, as we don't need it so much, as we have more than enough words of wisdom and proper conduct in the Holy Writ and the words of our Sages, that Divine inspiration rested upon them, but the [Sages] did not forbid [the study of Ben Sira] completely, even [to the extent of disallowing its study] on a non-regular basis, on the contrary, they clearly stated the worthy things that [Ben Sira] contains, can be expounded upon. We furthermore find that the Sages sometimes included [the words of Ben Sira] together with the Writings, as in the end of the eighth chapter of Bava Kama, “Each bird will resort to its like.’”

This reflects the same idea I mentioned at the beginning: we believe that although Ben Sira was not a prophet, he still was on a very high spiritual level. Nevertheless, his teachings were not deemed relevant enough to be included in the Holy Writ, and were therefore excluded.


As to your question of how it could be included as part of the Writings, this question was already asked from Rav Hai Gaon, around 1000 years ago, who answered (Sha’arei Teshuva – Teshuvat HaGeonim, section 121): “And this that you asked about this that the Rabbis said in Bava Kama, ‘this thing was written a third time in the Writings, when it is written, ‘Each bird will resort to its like, and a man with those of his like’, and this [verse] isn't found in the Writings, that is the truth, as these are the words of Ben Sira, and they are considered writings, as the Rabbis needed to write from his words, and they are written as proofs and ideas, but not as [in the sense of] the Holy Writ. And further, the Rabbis were accustomed to say over a verse not in its precise wording, as they said (Bava Kama 81b): ‘It was regarding such a person that the verse says: While you can be good do not call yourself bad. But is it [anywhere] written: ‘While you can be good do not call yourself bad’? — Yes, it is written to a similar effect (Proverbs 3:27): ‘Do not withhold good from the one who needs it when you have power in your hand to do it.’ And it is similarly written likewise [a verse in the Writings that contains the same idea as the teaching from Ben Sira] ‘He who goes with the wise, will become wise’ (Proverbs 13:20) – Rav Hai Z”L.”

No comments:

Post a Comment