But let us return to the Oral Torah and its
components. So far we have dealt with the "regulations and customs."
Now let us turn to the second part of Maimonides' list -- Halacha given to
Moses at Sinai. As I quoted above, "there are no logical arguments in
favor of these laws" -- that is, they are not derived from Scripture or
reason, but Moses received these laws from the Divine at Mt. Sinai, and these
laws were transmitted through tradition, without any flaw or alteration until
the Oral Torah was written down.
Not only is such a scrupulous oral transmission
of detailed laws through 1500 years -- without a single change and with no
point forgotten -- extremely unlikely from a common sense viewpoint, but we
also have texts which relate that this is not how things happened.
Maimonides himself, in the foreword to his
Mishnah commentary, counts the laws which he considers Halacha given to Moses
at Sinai. Among them he counts the rule: "A mentor may look where the
children are reading" (Shabbat, chapter 1, mishnah 3) -- that despite the
prohibition against reading by candlelight on Sabbath, a teacher may supervise
his students when they learn to read. Actually, this law is explicitly
described as a halacha given to Moses from Sinai in the Jerusalem Talmud,
Tractate Shabbat 1:3. And yet the very prohibition against reading by
candlelight on Sabbath is an edict [gezerah] by Chazal aimed at preventing a
person unintentionally trimming an oil candle while reading, thus violating the
Torah prohibition against setting a fire on Sabbath, as the Jerusalem Talmud
(ibid.) explicitly states: "Great are the words of Sages, who said, 'Lest
he would forget and trim [the candle].'" It is obvious that if the whole
prohibition against reading by candlelight on Sabbath was later established by
the Sages, it is impossible to say that an exception to this prohibition was
given to Moses by G-d Himself at Mt. Sinai.
Of course, our rabbis did not miss this
difficult issue, and the Rosh wrote in his Laws of Mikvaot (section 1)
that this law is not indeed Halacha given to Moses from Sinai, merely
"clear as a halacha given to Moses at Sinai." However, the Rosh
overlooked that the mishnah says, "Indeed they said, a teacher may look
where the children are reading," and the Jerusalem Talmud in that
very place explained: "Mishnah: 'Indeed they said...' Rabbi Lazar
said: wherever the Mishnah says 'Indeed,' Halacha given to Moses at Sinai is
meant." That is, we have a semantic rule of the Mishnah: 'Indeed' means
Halacha given to Moses at Sinai. So, according to the Rosh, not only is this
rule, stated in the Talmud, wrong, but the Talmud also chose to quote it in a
case where it is not valid. The Rosh's explanation contradicts both the
Jerusalem Talmud and Maimonides's determination that the law "a mentor may
look" is a real and actual halacha given to Moses at Sinai.
Another law which Maimonides counts as a
halacha given to Moses at Sinai: "[Those who live in] Ammon and Moab give
the Tithe of the Poor [maaser ani] in the seventh year," and it is from
Tractate Yadaim, chapter 4, mishnah 3: "Rabbi Eliezer cried and said, '...Thus I
received from Rabban Jochanan ben Zakkai, and he had received it from his
rabbi, and his rabbi from his rabbi, and so on, up to Halacha given to Moses at
Sinai, that [those who live in] Ammon and Moab give the Tithe of the Poor in
the seventh year."
But the Talmud itself says: "[Those who live in] Ammon and Moab give
the Tithe of the Poor in the seventh year, as they said: many places [the People
of Israel] conquered when they came from Egypt, but they did not conquer them
when they returned from Babylon, and the first sanctity [which the land
obtained after the first conquest] was valid only for its time, but not
forever, and [after they came from the Babylonian Exile] they did not sanctify
those places, so that the poor would have something to rely on in the seventh
year." (Tractate Yevamot 16a)
That is, after the People of Israel came from
Egypt, they conquered the lands of Ammon and Moab, sanctified them as a part of
the Land of Israel, and each seventh year the laws of the shemitah were
valid in those lands -- which means people were forbidden to gather their crops
and were exempt from the obligation of tithes. After the Jews returned from Babylonian
exile they did not sanctify those lands for purposes of shemitah, but
they obligated the inhabitants of those lands to give tithes, which would
supply the poor in the shemitah years. The rule that "[Those who
live in] Ammon and Moab give the Tithe of the Poor in the seventh year"
could not have been given to Moses at Mt. Sinai, hundreds of years before the
Babylonian exile, and Rashi on Chagiga 3b explicitly calls this rule "a
regulation since the time of the Great Assembly." R' Simeon of Sens wrote
in his commentary on the mishnah of Yadaim 4:3 that "halacha given to
Moses at Sinai" in this mishnah's context must be understood not literally
but rather figuratively. But such an approach, depriving words of their plain
meaning, seems inappropriate in Halachic discourse, where the terms should be
always well defined.
R' Samson himself rejected the above
interpretation, based on the Tosefta to Tractate Yadaim (2:16), where Rabbi
Eliezer's words are cited as follows: "Thus I received from Rabban
Jochanan ben Zakkai, and he had received it from the Pairs [earlier Tannaim],
and they -- from the Prophets, and they -- from Moses, that it is an halacha
given to Moses at Sinai: [those who live in] Ammon and Moab give the Tithe of
the Poor in the seventh year." That means the mishnah must speak of a
Halachic law given literally to Moses at Sinai -- which is historically
impossible.
In Tractate Sukkah 28a-b the Talmud tries to
determine whether the definite article ha [the] in the word
"ha'ezrach" [the native] (Leviticus 23:42) was intended to exempt the
women from the commandment of sitting in a sukkah or to include them
amongst those whom this commandment obligates. When they found no way to
decide, they simply announced that women are exempted from the commandment
of sukkah by halacha given to Moses at Sinai. This is a rather
strange way to recall an existing tradition from Sinai on a basic commandment
such as the sukkah, one about which no forgetfulness should have occurred.
Are we again forced to conclude that "Moses at Sinai" is not meant
literally? (Though Maimonides expresses the "no forgetfulness" view
only concerning the laws given at Sinai which can be derived through the
Torah's exegesis, it is hard to presume an essential difference between those
laws and laws which are Halacha given to Moses at Sinai. Logically,
Maimonides's view should extend to any tradition originating from Sinai,
certainly if it concerns basic commandments familiar to every Jew.)
Further, in Midrash Sifra (Acharei Mot, section
5), it is said: "'The native' -- to include the native's wives." Here
the Sages not only did not mention a "halacha given to Moses at
Sinai," they explicitly ruled in contradiction to that halacha based on
exegesis from the Torah. It is true that such contradictions in exegesis are
common. The problem is how they can exist in a situation where a law allegedly
extends back to Sinai.
Chazal themselves freely admitted that the laws
which are Halacha given to Moses at Sinai may be forgotten. Thus we find in
Tractate Sukkah 44a: "Rabbi Jochanan said: [beating] the willow [on
Sukkot] was established by the prophets. But [we know that] Rabbi Jochanan
said: [beating] the willow is a halacha given to Moses from Sinai. They forgot
it and then established it again."
The Gemara in Tractate Eiruvin 21b says:
"If the words of the Sages are something of value, why were they not
written? For the Scripture says: 'Of making many books there is no end, and
much study is a weariness of the flesh' (Ecclesiastes 12:12)." And the
Tosfot there (s.v. Mipnei) add that the words of the Sages were not given as
Halacha given to Moses at Sinai so that they would not be forgotten. We learn
from here not only that Halacha given to Moses at Sinai can be forgotten, but
so might other kinds of oral tradition. I will return to this later.
I can only conclude this part of my letter with
the words of Prof. Shmuel Safrai in his article "Halacha Given to Moses at
Sinai -- History or Theology?" (Proceedings of the 9th World Congress on
Jewish Studies, v. III, Hebrew section, pp. 23-30): "Those chains described by the Tannaim
which present a tradition of certain halachic laws received from their rabbis,
who in turn received them from their rabbis, and so on until the Pairs [the
early Tannaim] and the Prophets, are naught but a literary way of describing
the steadier Halacha which joins the Torah given to Moses on Sinai...
Generally, the halachot of which it is said, 'Halacha given to Moses at Sinai,'
have no uniqueness on their own. They are neither ancient traditions nor
halachic laws about which there was no disagreement, and they even have no
specific Halachic or ideological status in and of themselves."
I agree with you that Halachot given to Moses at Sinai can be
forgotten, as can be also clearly understood from Temurah 16a: “Said Rav Judah
in the name of Shmuel: 3000 halachot were forgotten in the days of mourning for
Moses ... Said Rav Judah in the name of Rav: At the time that Moses departed to
the Garden of Eden, he told Joshua, “Ask from me any questions that you have.”
Joshua replied, “My teacher, have I ever left you, and went somewhere else? Did
you not write about me (Exodus 33:11), ‘But his attendant, Joshua the son of
Nun, a lad, would not depart from the tent?’” Immediately, Joshua's strength
was weakened and he forgot 300 halachot, and there arose [by him] another 700
doubts.”
I do not believe that the intention of Maimonides is to say
otherwise. Rather, he writes that one will not encounter an argument about
these halachot, where one person will say that he received a tradition in one
way, while another will say that he received a tradition to the opposite effect.
By way of example, I will refer to what I view to be a
tradition that extends back to the times of Moses, that has survived until our times,
which is the tradition that the Yemenite Jews have with regard to the types of locusts
that are Kosher.
Now, I first should make clear that this tradition does not
truly fit into the category of a ‘Halacha given to Moses at Sinai’, as Maimonides
explains that only the laws received by tradition that have no hint about them within
the verses themselves, are characterized as such, while in our case, the fact
that some locusts are Kosher is derived from the verse itself (Leviticus
11:22).
I do not believe that anyone doubts that this tradition that
the Yemenite Jews have, is true. At the same time, one can easily observe both of
the abovementioned points: that this tradition has been forgotten by large
segments of the Jewish people, and that we do not have another group of Jews
that have a contradictory tradition to the one the Yemenite Jews have.
The truth is that I am not quite sure why Halacha does not
take the approach that other segments of Jewry should re-adopt the Yemenite
tradition as their own; after all, nobody is suspecting the Yemenites of having
a false tradition. Nevertheless, that seems to be the approach that Halacha
takes, which, in turn, perhaps explains the expression used about a few halachot,
such as the beating of the willow, or the use of final letters in writing (e.g.
mem sofit, nun sofit etc.), that “they forgot them, but [the prophets]
re-established them” – meaning that unlike a regular halacha given to Moses at
Sinai that was forgotten, which is not re-adopted, the prophets reinstated
these halachot as part of Jewish law.
I also believe that our reliance on these traditions is not
unjustified – since in previous times, the Sages used to review everything they
learned at least 100 times (Chagiga 9b), it was only natural that they remembered
what they studied very well. And in those cases where someone forgot their
learning, for example, Rabbi Elazar Ben Arach (Shabbat 147b) or Rav Joseph (Nedarim
41a), that fact was acknowledged and reckoned with accordingly.
However, that assurance of the reliability of the tradition
would only apply when it was transmitted from one sage to another. When dealing
with a tradition that was transmitted through the masses, that are not very
reliable, it may be susceptible to change over time, as has been the case with
this very tradition about the types of Kosher locusts, where the Rabbis of
those communities sometimes had to re-clarify the tradition when they felt that
it had been corrupted by some of the public.
With regard to your question about how the halacha that
“Ammon and Moab give the Tithe of the Poor in the seventh year” can stem from
Moses at Sinai, the Radvaz (David ben Solomon ibn Abi Zimra) answers in his
commentary to Maimonides’ Laws of Tithes 1:6: “It seems to me that the answer
is that G-d showed to Moses everything that the prophets and Sages would
establish in the future, and told him that when the Sages would establish on
the lands of Ammon and Moab the obligation of tithes, the obligation in the
seventh year should be [to give] the Tithe of the Poor. And this is not a tenuous
answer.”
I can easily understand if someone would find this to be a
tenuous answer; on the other hand, the Radvaz is not an authority that one can
dismiss without second thought.
The Netziv (Naftali Zvi Judah Berlin) gives a similar answer
to the halacha of “a mentor may look where the children are reading”. In his
Ha’amek Sha’alah on Sheilta 137 note 2, he writes: “And according to this it
can be understood, this that it is taught in Yadayim, that it is a halacha
given to Moses at Sinai that Ammon and Moab give the Tithe of the Poor in the
seventh year - but it is known that giving tithes in areas outside the Land of
Israel is only a Rabbinical decree, so how is it possible to say on this that
it is a halacha given to Moses at Sinai, and because of this [question] the Rosh
writes that it is not literally a halacha given to Moses at Sinai - and similarly
in Shabbat chapter 1, it is taught, ‘Indeed, they said, that a mentor can see
where the children are reading’ - and it states in the Jerusalem Talmud, Avodah
Zara, that the expression ‘Indeed, they said’ refers to a halacha given to
Moses at Sinai - but this edict that one cannot read by the light of a candle
etc. is only one of the eighteen edicts that were established by the house of
Shammai - and because of this, the Rosh writes in the laws of Mikva'ot that
this is not literally a halacha given to Moses at Sinai - but Maimonides in his
introduction to his commentary on the Mishnah enumerates all of the halachot that
were given to Moses at Sinai that are mentioned in the Talmud - and he includes
these two laws as halachot that were given to Moses at Sinai - so one is forced
to say that he held that these are literally halachot that were given to Moses
at Sinai - and at Sinai it was said [to Moses] that if [the Sages] will decree
on the land outside of the Land of Israel that one must give tithes ... then
the tithe in the seventh year should be the Tithe of the Poor - and similarly,
if they will decree that it is forbidden to read [on the Sabbath] by the light
of a candle, they should not decree on the mentor and the children (and see
Ritva in Eiruvin at the beginning of chapter 2 ... on the halacha of Chatzitzah
that the halacha was given to Moses at Sinai that this would apply in the
future when the Beth Din would establish this edict).”
A similar idea can also be found in Ibn Ezra to Exodus 12:1 about
a similar case: “The Goan explains that they had a tradition from Moses that a
king would arise who would establish musical instruments [in the Temple]…”
As to your question about the seeming contradiction about the
word ‘ha’ezrach’, it is really not a problem.
The commentators explain the passage in Sukkah 28a-b, that
the scholars knew from the outset that there was a halachah given to Moses at
Sinai, that women were exempt from dwelling in the sukkah. Therefore, when it
was taught that from the word ‘ha’ezrach’, it is derived that women are exempt,
they became confused, as they knew from other examples, like when the word
‘ha’ezrach’ is used with regard to the Fast of Atonement, that the definite
article ‘ha’ comes to obligate and to include, rather then to exempt.
Accordingly, if it were true that we were deriving the law solely from the word
‘ha’ezrach’ mentioned in the verses discussing sukkah, it should come to teach
us that women are obligated in dwelling in a sukkah, not that they are exempt.
The Talmud answers that the teaching about the word
‘ha’ezrach’, was misunderstood. When it was taught that from the word ‘ha’ezrach’
it is derived that women are exempt, that was not to be understood literally,
as the definite article ‘ha’ comes to obligate, as mentioned before. Rather,
the meaning of the teaching was to provide a mnemonic for the halachah given to
Moses at Sinai, that women are exempt. In the teaching, it was linked to the
word ‘ha’ezrach’, only to provide an easy way, a memory link of sorts, to
remember the law.
Accordingly, this does not contradict the passage in Midrash
Sifra that you referenced to. In Acharei Mot, which discusses the Fast of
Atonement, it teaches that the word ‘ha’ezrach’ comes to obligate the women, as
is agreed to in Sukkah 28. Later on, however, in Sifra Emor chapter 17, where
it discusses the commandment of sukkah, it states that the word ‘ha’ezrach’
comes to exclude women (at least according to the two copies that I have),
which again, is in complete accordance with the Talmud.
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