Defining The Written and The Oral Law - A Short Overview.

Over Yomtov I was asked how I understand the argument between Rabbi Eliezer and Rabbi Akivah recorded in Yoma Perek 7 Mishnah 3 about the order of the Korbanot on Yom Kippur. After all both Tanaim were around during the Churban, especially Rabbi Eliezer who was a Talmid of Rabbi Yochanan Ben Zakai and was already a noted scholar at the time of the Churban, so how did they not know how it was done? That question indeed applies to many other such arguments between Tanaim about daily practices. Was there no mimetic practice?

After Yeshiva I walked away with a very confused concept of what are Torah Shebiktav and Torah sheba’al peh, the written and the oral Torah. I don’t know how others see it, but I was convinced that Moshe wrote the torah at Sinai, adding pieces over time until Arvot Moav while he also transmitted oral law that he received from God including the 13 hermeneutical rules. The oral law was composed of these laws and their extension derived through the 13 midot and that was Torah sheba’al peh.  I was always a little confused about how to differentiate between what Moshe received and what was derived later and how all could be seen as Sinaitic and I lived with my confusion. Of course no one directed me to the Rambam’s Hakdamah to the Mishnah or even to Hilchot Mamrim which was outside the yeshiva learning curriculum.   It is only later, on my own and in learning with Chaveirim that I finally built a clearer picture about this whole issue.

Rambam in his introduction to the Mishnah describes in detail how Moshe received each Mitzvah orally together with its Pirush and Biur, explanation and clarification, and then transmitted them to Aharon individually repeating the same to Aharon’s sons in his presence, again to the Elders of the people in the presence of the former and the people in the presence of all the preceding ones. Then Aharon and the others repeated the procedure so that everyone heard each Mitzvah and its explanations and clarifications four times. Only then did each one write down the text of the Mitzvah privately and memorized the explanations and clarifications, repeating all this amongst them and analyzing all this material. Rambam refers to the Pirush and Biur jointly as “Kabbalah”.

“And the elders spread amongst the people to teach and review until that Mikra [dictated text] is known and they understand how to read it [comprehend it]. And they teach them the Biur [explanation] of that Mikra as it was given by God. That Biur is [comprised] of generalities [about the Law].  And they [the people] were writing down the Mikra and memorizing the Kabbalah orally, and it is thus that the Sages say “Torah Shebiktav and Torah Sheba’al Peh”.”  (Introduction to Pirush Hamishna)

The dictated text was to be memorized and then written down verbatim and the Rabbis refer to it as the written Law, Torah Shebiktav while the Kabbalah was to be memorized in an oral form. The Kabbalah being comprised of the Biur and the Pirush is referred to by the Rabbis as Torah Sheba’al Peh. It is only that portion of the oral law that is the original designation of Torah sheba’al Peh. This process of transmitting Mikra and Kabbalah went on for the 40 years of the Midbar without any official written document other than the Luchot – the Tablets. During this period, besides each person writing down for themselves the verbatim text and memorizing the kabbalah, questions about cases that were not covered by the Mikra and the Kabbalah were debated as to which Mitzvah they would pertain and what ruling should apply. Those debates were based on the 13 hermeneutical rules and when divergent opinions were proposed, decided by majority vote of the court – Beit Din. The Kabbalah part of the Law was maintained orally in its original form through the generations and Rambam claims that it was never forgotten nor was there any question about its exact content. All recorded arguments were always in the other parts of the Law, the derivative parts which are called Talmud (Hilchot Talmud Torah 1:11-12).

Finally at the end of the forty years in the desert, as Moshe felt death approaching, he gathered up the people and offered to review with anyone that had forgotten a certain Kabbalah and answer any question that may have arisen. It is only then that Moshe began writing the 13 Sifrei Torah, twelve of which he gave one to each tribe and the 13^th to the tribe of Levi to place in the Aron next to the tablets.

In Hilchot Mamrim 2:1 Rambam writes:

א  בית דין הגדול שדרשו באחת מן המידות כפי מה שנראה בעיניהם שהדין כך, ודנו דין, ועמד אחריהם בית דין אחר, ונראה לו טעם אחר לסתור אותו הדין--הרי זה סותר, ודן כפי מה שייראה בעיניו:  שנאמר "אל השופט, אשר יהיה בימים ההם" (דברים יז,ט)--אין אתה חייב ללכת, אלא אחר בית דין שבדורך.

A Great Court that arrived at a conclusion about a Law using one of the Midot (hermeneutical rules) and implemented that Law, was followed by a subsequent Court who found another argument to contradict that [earlier] ruling, that later court may do so. They may rule according to their own conclusion as it says “… to the judge that will be at that time”, you do not have to follow other than the court of your generation.

It is completely acceptable for a court to overturn a ruling of a predecessor if it is for a case that was derived using the hermeneutical rules. As long as the Mikra or the Kabbalah was not affected, rulings that result from derivative deductions using the traditional methods of analysis may result in divergent rulings from court to court. Of course, we are talking about the Supreme Court - בית דין הגדול of a particular period versus one of a different time. There was no divergent ruling during one period as the Supreme Court always had the final word. Rabbi Eliezer and Rabbi Akivah were merely reconstructing possible arguments of the different courts at different times. The order of the Korbanot on Yom Kippur may have been different at different periods of time. The practice in the Temple was not exactly the same from generation to generation.

Continuing with this presentation of the different components of the Torah received at Sinai, Rambam in his Introduction to the Pirush Hamishna addresses the category of Halacha Lemoshe Misinai (HLM). Where does it fit in, if we already have the Sinaitic Kabbalah? He explains that the Kabbalah many times can be shown in the text either through a direct textual analysis or through the hermeneutical process. The way to discern whether a ruling is based on Kabbalah or on hermeneutical rules is by checking if there is any argument or dissension on the Law. Those that have arguments amongst Rabbis cannot be based on Kabbalah and must be derivative while those that do not have any argument recorded, may potentially be Kabbalah.

“Although [these laws] were based on Kabbalah [Mekubalot] and there is no argument about them, these Pirushim may be derived through exacting textual analysis of the Mikra that we received using the hermeneutical method, Asmachta method, as well as the clues and indications found in the Mikra. When you see argumentation and dissension based on logical methods where proofs are adduced for one of the Pirushim and other such discussions, … [Rambam brings the discussion Sukkah 35a about the Etrog], that is not because they ever had a doubt and were looking for proof for what it (Pri Etz Hadar] is, for we saw since the times of Yehoshua until now that an Etrog was used together with a lulav every year without any dissension. They were only looking to see if they could find in the Mikra an indication that it was an Etrog. The same goes for their [textual] deduction regarding the Hadas, or their deduction that one who amputates any  limb of a fellow human being pays a fine … “

The rabbis tried to find textual support for the Kabalot they received over the generations going back to Moshe. They assumed that as they came from the same author, there must be a self-evident clue or an underlying theme in the text that took into account that oral Kabbalah.  When they could not find any such clue, they would say that this Kabbalah is HLM. HLM is a designation of a Kabbalah that has no trace in the Mikra.

This brings us to a Rambam that at first glance is hard to understand. In Hilchot Chovel Umazik 1:5

ומניין שזה שנאמר באברים "עין תחת עין . . ." (שמות כא,כד; ויקרא כד,כ), תשלומין הוא--שנאמר "חבורה, תחת חבורה" (שמות כא,כה), ובפירוש נאמר "וכי יכה איש את ריעהו, באבן או באגרוף . . . רק שבתו ייתן, ורפוא ירפא" (ראה שמות כא,יח-יט).  הא למדת ש"תחת" שנאמר בחבורה תשלומין, והוא הדין ל"תחת" הנאמר בעין ובשאר אברים

How do we know that “eye for an eye” that it says in the case of [damage caused to] limbs is payment, because it says “a wound for a wound” and it is explicit [elsewhere] “should a man hit another with a stone or a fist… he should pay for his idleness and healing”. We thus see that [the term] “for a [Tachat]” that is used in the case of a wound means payment, so too does it mean in the case of the eye and other limbs payment.

In other words, there is textual support for the non-literal interpretation of “eye for an eye”. This kind of textual support may be subject to debate. It is not uncommon for arguments amongst Tanaim and Amoraim to develop on such type of analysis. Is this a ruling by a specific court and the ruling may be overturned by another just like any hermeneutically derived law?

ו  אף על פי שדברים אלו נראים מעניין תורה שבכתב, כולן מפורשין הן מפי משה מהר סיני, וכולן הלכה למעשה הן בידינו; וכזה ראו אבותינו דנין בבית דינו של יהושוע, ובבית דינו של שמואל הרמתי, ובכל בית דין ובית דין שעמדו מימות משה ועד עכשיו. 

Although these words appear to pertain amongst matters of the written law [i.e. are based on textual analysis – DG], all are as explained from the mouth of Moshe from Sinai, and all are practical Law as performed by us always.  Our forefathers saw this ruling in the court of Yehoshua, in Shmuel of Ramah’s court, and in every court that was ever in place from the time of Moshe to our time.

Although it would appear from the Talmudic discussions that this non-literal interpretation of the text is based on textual analysis, the fact that we have no records of any court ever dissenting leads us to accept this as a Pirush. It is a Kabbalah based interpretation which has been shown to agree with the related laws in the text. It is therefore also not a HLM as Rambam wrote in the previously quoted introduction to Pirush Hamishna. The Law in this case is so different than the plain text עין תחת עין and there is no dissension recorded, the Gemara taking it for granted and other than looking for a clue in the written text, there is no discussion of it being otherwise is an indication that it belongs to the category of kabbalah. Rambam sees it important to point this out and make it clear in this Halacha.

For a much more detailed discussion of this whole subject see Torat Neviim by Maharatz Chayot (Rabbi Tzvi Hirsh Chayot) in volume 1 of Kol Sifrei Maharatz Chayot page 111 and on. Since much more has been written on the subject both in traditional learning circles and academia. The above is a simplified presentation that I have organized for myself.