Is the Law Evolutionary? Part1 - Some sources.

A close friend gave two Shiurim this Shavuot, one at midnight which I missed as I was in bed sleeping the other between Mincha and Ma’ariv which I attended. However I got a synopsis of the one I missed which is related to the second one. It got me thinking about a few issues that were touched on in comments here and elsewhere. It is a long discussion so I will break it up in several posts.

First a few sources -

Rambam in Hilchot Melachim Umilchamotehem 9:1 writes:

א על שישה דברים נצטווה אדם הראשון--על עבודה זרה, ועל ברכת השם, ועל שפיכות דמים, ועל גילוי עריות, ועל הגזל, ועל הדינים.
ב אף על פי שכולן קבלה הן בידינו ממשה רבנו, והדעת נוטה להן, מכלל דברי התורה, ייראה שעל אלו נצטוו. הוסיף לנוח אבר מן החי, שנאמר "אך בשר, בנפשו דמו לא תאכלו" (בראשית ט,ד); נמצאו שבע מצוות.
ג וכן היה הדבר בכל העולם, עד אברהם נצטווה יתר על אלו במילה, והוא התפלל שחרית. ויצחק הפריש מעשר, והוסיף תפילה אחרת לפנות היום. ויעקוב הוסיף גיד הנשה, והתפלל ערבית. ובמצריים נצטווה עמרם במצוות יתרות, עד שבא משה רבנו ונשלמה תורה על ידו.

As usual my paraphrase/translation/interspersed with my comment/explanation:

The First Man received six commandments – five are negative- that he should not do: Idol worship – cursing God – murder – promiscuity – robbery.
One is a positive commandment: to set up a legal system.

Although all were transmitted to us from Moshe Rabeinu and are also logical, it would seem from the general words of the Torah that these were the ones that man was commanded. [In other words, reading carefully the words in the Torah, one can conclude that early man was commanded to follow these six laws]. Noach added to humankind the prohibition to eat a limb from a living animal as it says “but meat, that its blood is still alive in it, you shall not eat”. That adds up to seven Mitzvot.

And so things continued in the world until Avraham was given additional commandments. He was ordered to perform the Mila (circumcision) and he prayed Shacharit (the Morning Prayer). Yitzchak teethed and added the prayer of Mincha (afternoon). Yaakov added the prohibition to eat Gid Hanashe (sinew of the thigh) and prayed Ma’ariv (evening prayer). In Egypt Amram received additional Mitzvot until Moshe came on the scene and the Torah was completed.

Reading this presentation we get a sense of an evolutionary process where laws are promulgated by different generations and people all this culminating with a final burst of legislation when Moshe arrived.

Rambam in Pirush Hamishna on Chulin chapter 7:6 writes:

פירוש המשנה לרמב"ם מסכת חולין פרק ז משנה ו

ושים לבך לכלל הגדול הזה המובא במשנה זו והוא אמרם מסיני נאסר, והוא, שאתה צריך לדעת שכל מה שאנו נזהרים ממנו או עושים אותו היום אין אנו עושים זאת אלא מפני צווי ה' על ידי משה, לא מפני שה' צוה בכך לנביאים שקדמוהו, דוגמא לכך, אין אנו אוכלים אבר מן החי לא מפני שה' אסר על בני נח אבר מן החי, אלא מפני שמשה אסר עלינו אבר מן החי במה שנצטווה בסיני שישאר אבר מן החי אסור. וכן אין אנו מלים בגלל שאברהם מל את עצמו ואנשי ביתו, אלא מפני שה' צונו על ידי משה להמול כמו שמל אברהם עליו השלום, וכן גיד הנשה אין אנו נמשכים בו אחרי אסור יעקב אבינו אלא צווי משה רבינו, הלא תראה אמרם שש מאות ושלש עשרה מצות נאמרו לו למשה בסיני, וכל אלה מכלל המצות.


Pay attention to the great rule mentioned in this Mishna when the rabbis said [Gid Hanashe] was forbidden at Sinai. You need to know that all we are prohibited from doing or ordered to do nowadays; we follow those directives only because God gave them to Moshe. It is not because prophets that preceded him were ordered. For example, we do not refrain from eating a limb from a living animal because God prohibited the children of Noach from eating it. Rather it is because Moshe prohibited us from eating it when ordered at Sinai. Likewise we do not circumcise because Avraham did so for himself and the members of his family, but because ordered us through Moshe to emulate what Avraham our Father did. Likewise Gid Hanashe, we do not follow the prohibition that was placed on it at the time of Yaakov but rather because of the order given to Moshe. Proof is that there are 613 Mitzvot which Moshe received at Sinai and these are included.

This statement though not contradictory is not exactly the same as saying that it is an evolutionary process. Rather we get the sense that although traditionally these things were part of the praxis, they would not automatically remain unless sanctioned by Moshe at Sinai.

MN 2:39 we read-

“According to what is written in Scripture and handed down by tradition, the fact may be explained in the following way: There were prophets before Moses, as the patriarchs Shem, Ever, Noah, Methuselah, and Enoch, but of these none said to any portion of mankind that God sent him to them and commanded him to convey to them a certain message or to prohibit or to command a certain thing. Such a thing is not related in Scripture, or in authentic tradition. … Abraham did not tell the people that God had sent him to them with the command concerning certain things which should or should not be done. Even when it was commanded that he, his sons, and his servants should be circumcised, he fulfilled that commandment, but he did not address his fellow men prophetically on this subject... Also Isaac, Jacob, Levi, Kehat, and Amram influenced their fellow men in the same way. Our Sages, when speaking of prophets before Moses, used expressions like the following: The bet-din (court of justice) of Ever, the bet-din of Methuselah, and in the college of Methuselah; although all these were prophets, yet they taught their fellow-men in the manner of preachers, teachers, and pedagogues, but did not use such phrases as the following: "And God said to me, Speak to certain people so and so." This was the state of prophecy before Moses.”

This text implies that until Moshe there was a group of people who voluntarily kept certain Mitzvot. It was at Sinai that it became obligatory.

In a letter to R. Yosef Ibn J’bar (Sheilat edition page 410-411) responding to an attack by some of Rambam’s detractors that he mistakenly holds that Moshe is the one who gave us the Mitzvah of Mila (circumcision) while Rambam himself in Hil Mila 3:9 writes that Avraham was given 13 treaties with God when commanded to perform it. He explains that although the commandment of circumcision was written in its place when the story of Avraham is recounted in the Torah, we keep it only after it was given to us in Sinai. Now comes a very interesting comment:

“We should ask these blind people who are trying to compete with those who can see (!) ‘Is it possible that the verses that contain the 13 words Brit (treaty – from where we learn that God made these treaties with Avraham) were told to Avraham who then wrote them down; Moshe found those texts and copied them into the Torah, just like plagiarists copy the words and poems of others? Or is it rather that God told Moshe these verses? For anyone who does not believe that these verses, together with the rest of the torah, was not given to Moshe – is among those who do not accept torah min Hashamayim. For how else would we know, or would Moshe know, what was told to Avraham at the time he was commanded the mitzvah of Mila? The only way we know it is because Moshe gave us the Torah at Sinai, therefore the obligation to us stems from Moshe and it is from him that we heard about the 13 Treaties based on what God told him. This is clear to all but those who have not learned the roots of the Law and wasted their whole life in the branches (!). [He is referring to the rabbis of his time, similar to many of our days who are only interested in the minutia of the law without paying any attention to the underlying theology]. There is no difference in our Torah; it is all given to us by Moshe based on what he received from God. Whatever it contains that refers to his predecessors, like the seven Mitzvot of the Bnei Noach and Mila to Avraham, we, the congregation of Yaakov, do not accept it because it is an old praxis, but rather because of the last commandment to us directly.”

These sources so far present us with an interesting and a little confusing picture. We start with what seems to be an historical and evolutionary presentation followed by sharp comments about Sinaitic legitimization. The last quote expands on how we are required to understand the sources of the Torah. Even when it refers to events that precede it, only prophecy, Moshe’s prophecy, legitimizes it. Copying sources is seen as plagiarism. So much for DH as a possible acceptable doctrine!

There are a few more discussions in Rambam about this matter. I will address them and put what we have here into a proper context in upcoming posts. In the meantime please feel free to interject and share your thoughts with me.