Moreover, even the Pentateuch -- the most
sacred book of our faith -- was treated by Chazal with a certain measure of
frivolity which suggests they did not consider it really given word by word by
the L-rd of heaven and earth. We have seen already the Gemara in Makot 24a
which deals with several Torah verses as though they were Moses's own edicts.
Things of that sort are also found in Midrash Tannaim on Deuteronomy, chapter
14. Speaking of the portion which lists the impure animals and birds and which
was written twice in the Torah -- in Leviticus 11 and in Deuteronomy 14 -- the
Midrash says: "Why were these things duplicated in
Deuteronomy? The animals [were duplicated] because of the shesuah and
the birds because of the raah vulture -- to teach that one should not
be ashamed to say he had forgotten. It is an inference from minor to major --
if Moses, the wisest of sages, the greatest of greats, father of the prophets,
was not afraid to say he forgot, a person who is not even one of a thousand
millions, of multitude of myriads of his disciples' disciples -- how much more
so should this person not be afraid to say 'I forgot.'"
The Midrash claims that Moses forgot about the
vulture called raah and about the animal called shesuah and
for that reason duplicated the whole portion, more than a dozen verses, in the
Torah. Isn't the Midrash clearly implying that Moses wrote this portion at
least once without dictation from Heaven? Or maybe both times G-d's dictation
was the same, but at least once Moses failed to record it correctly? In this
case, where else might he have erred in recording the words of the Divine?
We find one more example in Tractate Makot 22b: "How silly are those people who stand up
in honor of a Torah scroll and do not stand up in honor of a Torah scholar --
for in the Torah it is written, 'forty' [lashes should be the punishment of one
who transgresses certain prohibitions (Deuteronomy 25:3)], but the Sages came
and reduced the number of lashes by one."
That is, Chazal considered their own Halachic
rulings more authoritative than laws stated explicitly in the Torah text. How
is this to be understood?
In Tractate Ketubot 2b-3a the Gemara discusses
the Sages' ruling that "one cannot claim himself 'forced' concerning the bill
of divorcement" and states that if a man gives his wife a bill of
divorcement and says, "This will be your bill of divorcement if I don't
come back here during the next 12 months," and after 12 months he wants to
come back to his wife but he is unable due to an illness, the bill is valid,
though it is clear that the husband wanted to come back home and did not want
his marriage to be broken. Since according to the law of the Torah a divorce is
valid only if the husband wishes it, the Gemara comes to the conclusion that
this ruling is the Sages' own innovation. Then the Gemara explains: "But how can it be that a bill of
divorcement is invalid according to the Torah's law, yet the Sages... permit a
man's wife to be remarried? It is possible, since everybody who betroths a wife
does it according to the Sages' opinion, and in our case, the Sages confiscate
the property he betrothed his wife with."
Since the Sages have the right to confiscate
property, they ruled that if one betroths a woman with any property and later
gives her a bill of divorcement conditional on his not returning home after 12
months, and if he then fails to return home because of circumstances beyond his
control (illness or the like) -- the property he betroths his wife with should
be considered confiscated since the moment before the betrothal (Rashi). In
this case the marriage is considered invalid from the very beginning, and
therefore there is no need for a bill of divorcement valid according to the
Torah's law.
Such an approach seems strange enough already:
it is a retrospective confiscation of property. Because of a man's actions at
one point in time (when he fails to come back home though he wants to), part of
his property should be considered as confiscated at an earlier point in time
(when he betrothed his wife). But more than that -- according to the Halacha,
one can betroth a woman in a way that does not involve property, as the Gemara
immediately asks: "Ravina said to Rav Ashi: well, that is
possible if one betroths a wife with money, but what can you say in a situation
when he betroths her by having intercourse with her? The Sages gave that act of
intercourse the status of whoring."
A man may have intercourse with a woman in
order to betroth her by that act, with her full consent and in accordance with
the Torah's law, but the Sages give themselves the power to proclaim their
intercourse merely an act of whoring -- and they even do not bother to look in
the Scripture for the authority to issue such a ruling. According to the Halacha,
it is the law of the Torah that if a man isolates himself with a woman in
presence of two witnesses and has intercourse with her, intending to betroth
her by this act, it is enough to validate the betrothal (Tosefta Kiddushin 1:3
and Maimonides, Laws of Interpersonal Relations 3:5). No property is involved
here -- only the physical act of intercourse and the intention of the couple.
What can one say: that the Sages can confiscate not only one's property, but
also his thoughts, retroactively? Or that they are comfortable invalidating the
Torah's law on their own while offering very weak justification? Is it possible
that they did not actually consider the Torah G-d's law, and thus felt free to
annul as they saw fit?
I find it very difficult
to agree to your suggestion, that the intention of the Midrash Tannaim is that
Moses forgot these details while writing the Torah, as the same Midrash Tannaim
also mentions (beginning of Hashmatot VeHosofot) that Moses wrote 13 Torah
scrolls – one for each tribe, and one for the tribe of Levi, so that if another
tribe would try to forge or alter the text, it could be compared with the copy
that was held by the tribe of Levi. I find it truly incredulous that Moses made
that same mistake 13 times after each other.
Rather, the intention seems to be that Moses
forgot those details while teaching those laws to the Jewish people in the
desert, and re-taught them properly when he spoke to them the book of
Deuteronomy shortly before he passed away. (In which case, I’m not sure why you
had to bring a reference from the Midrash Tannaim, as the same idea that Moses
sometimes forgot some laws is mentioned by Rashi (e.g. Leviticus 10:20 and
Numbers 31:21), based on Zevachim 101a and Midrash Sifri end of section 157.)
Therefore, this is not problematic as:
1. We believe that the written Torah was dictated
to Moses by G-d, and the Midrash Tannaim is teaching that one can learn from
the fact that Moses did not ask from G-d for the license to change the text, in
order to obscure his mistake, that one should not be afraid to say that one
forgot.
2. It is only reasonable that Moses would have
taken the time and effort before he passed away to make sure that the law was
clear and complete. Indeed, the Gemara in Temurah 16a says just that.
3. As we believe that G-d is All-Knowing and
truly Omniscient, it is only reasonable to conclude that if He chose Moses to
be His messenger to the Jewish people, that Moses was fitting for the job,
despite the fact that he sometimes forgot some details, and even if it were
true that some things were not relayed by him to us, it will not be held
against us, as “G-d does not come with pretexts against his creations”.
As for the statement of the Sages with regard to
39 lashes, seemingly their intent is to highlight that the correct
interpretation of the law, is to be found by the scholars – not that they made
them up, but rather, that they have received these interpretations of the law
from tradition.
And with regard to your last question, it is
explained by Tosafot on that very page (see also Gittin 33a and Tosafot over there) that the reason why the Sages have the ability to annul a marriage
– which they only exercised in the most dire of cases, including this case,
where if they had not done so, the wife would be forced to remain a ‘chained’
to her husband (an agunah) and forbidden to ever remarry forever, in the worry
that perhaps the husband did not yet return because of an illness – is because
of the statement made by the husband when betrothing his wife, “Behold, you are
consecrated to me with this ring, according to the law of
Moses and Israel”. The reason why this choice of words was
established, was to include in its meaning that the marriage is created and
exists according to the understanding of the Sages.
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