Sunday, July 16, 2006

Torah Sheba'al Peh II

{The first parts were posted by Nachalat Shimon, with additional information afterward by Rav Moderator -taon} I have gathered a conception of the essence of the Oral Law from 3 main sources: R' Tzvi Hirsch Chayos' Mevo HaTalmud, Mevo Shearim by R' Meir Tzvi Bergman, and of course R' Sherira Gaon's Iggeres. If the Moderator disagrees with me please listen to him because I may have faulty reasoning and he certainly is more familiar with the material than I am.

Basically, on Har Sinai Moshe was given 3 categories of Oral Law.

1) Halachos LeMoshe Misinai are Halachos passed down generation to generation that have 100% no source in the Written Law, and there is no allusion to them therein. In the Gemara, these halachos are common and are accepted as Torah Law (not Rabbinic) as much as anything that is written clearly in Chumash. Among these are Dofen Akumah (a wall virtually "bends" over if its within 4 amos of a perpendicular wall, and is considered as though it was right next to the wall, as in a Sukkah with an "Itzteva" platform), and that the 3rd wall of a sukkah only needs to be 1 tefach. There are, in reality, dozens if not hundreds of these laws. There are 10 in the laws of tefillin alone (black straps, inner lining of flesh, shin on side of shel rosh, daled-shaped strap on shel yad, etc.). Halachos LeMoshe MiSinai are usually identified either in the Gemara itself or by meforshim there.

2) Asmachtos are traditions handed down from Sinai which do have some allusion in the Written Law. Many times you find Rabbis in the Gemara quote a pasuk that seems to have nothing to do with what he's trying to prove, or takes something seemingly out of context to prove a point, in order to show Scriptural basis for his halachic ruling. Many people think he's just making up interpretations on the spot, but in reality he is only trying to support traditions handed down generation to generation. Two reasons he provides these supports is (a) So that people who don't accept Oral Law will at least keep it anyway because they will see it has a basis in the Written Law, and (b) as a memory device, so that the huge amount of material in the Oral Law can be subdivided and contained within the Written Law, and when you read psukim in Tanach you will remember all the halachos which are supported by that pasuk. (Example: R' Akiva gives basis to the tradition that the Tefillin Shel Rosh must have 4 boxes because the pasuk says "they will be totafos between your eyes". Tot means 2 in Kapti and Fos means 2 in Afriki, and 2+2=4. So it must have 4 boxes). Asmachtos, for this reason, can also be derived from Neviim and Kesuvim even though they are Post-Torah, because the Neviim made up nothing new but rather any law that we find in Nach has its roots in the Oral Law (Example: Sanhedrin 22a the Rabbis ask "Who came and told us this before Yechezkel said it?" In other words, it was there before.)

3) Hashem also gave Moshe rules of interpretation (Midos, R'Yishmael says there are 13 of them) by which the Torah can be interpreted. In order to use most of them to interpret Torah (Rashi and Tosafos disagree about whether this applies to all of them except the kal v'chomer or only to gezeirah shavah), you have to have it already by tradition. Some of the laws derived by these are included in category 2 above, because they are already there by tradition, so the use of the midos is just asmachta. Kal V'Chomer could be made by any qualified Rabbi. Those laws which were not handed down but can be derived by the 13 midos are, according to Ritva (Rosh HaShanah 16a) these laws are what Hashem thinks are proper but they are not obligatory unless the Sanhedrin HaGadol makes them obligatory, which they can and have done. And if they do this, the law is considered Min HaTorah and not MideRabonnan.

Finally, there are gezeros and takkanos made by the Neviim and Zekenim before the 1st Churban Bayis. Just a few:
-Moshe enacted Sheva Brachos, studying about a Chag on the chag, reading Torah on Monday Thursday and Shabbos, and the first bracha in Bircas HaMazon, AMONG OTHER THINGS. (Shabbos 30a)
*During Moshe's mourning period many halachos were forgotten but Osniel ben Kenat retrieved them with his learning
-Pinchas forbade Yayin Akum if it may have been used for nesachim
-Boaz said we should greet each other with one of Hashem's names (Shalom)
-Shlomo and the Sanhedrin of his day formulated the takkanah of Eruvin (see Eruvin 21a) because people thought that if on Shabbos you can carry from bayis to chatzer and chatzer to mavoi, you can carry form mavoi to Reshus HaRabim, which is Assur Min HaTorah.
-There are a ton more, listed in Mevo Shearim and Mevo HaTalmud.

Plus, in many generations, laws that were derived from the 13 exegetical rules were made into law by the Sanhedrin.

At the very beginning of the 2nd Bayis period, Ezra and the Anshe Knesses HaGedolah made a lot of takkanos and gezeiros because the people were becoming lax in observance (see Sefer Nechemiah) and the Jewish world as a whole had fallen a level and needed to be distanced from violating the Torah. The Anshe Knesses HaGedolah also included Zechariah, Chaggai, and Malachi (who according to some opinions was Ezra). They restored the crown of Torah (Yoma 69b) by restoring praises of Hashem that were deleted by Daniel and Yirmiyahu because of their distress over the Churban and Galus Bavel. They formulated the daily prayer services, and havdalos and kedushos. Any anonymous gezeirah in the Gemara is attributed to them, according to some. In any case, they made a lot of them. The Torah was faithfully passed down till then, and then through the pairs mentioned in Pirkei Avos (the whole chain of transmission is found there). Until the time of the 2nd Churban Bayis.

Before the time of the 2nd Churban Bayis, there were no disputes among Rabbis (save for the semicha dispute and possibly one between David HaMelech and Yehonasan) because everyone was familiar with all the laws due to a very close teacher-student relationship. It was all taught orally. The Churban and Roman persecution caused students to neglect their teachers (B'nei Beseira made Hillel Nasi because they forgot a halacha due to neglecting the gedolei hador, Shemaya and Avtalyon, and he remembered it; if one forgotten halacha enough to remove them from nasi, it's obvious that it was expected of them to know the entire body of Oral Law by heart) and thus disputes developed. During the time of Rabbi Yehudah HaNasi, the Mishna was formed but not written down. It was formed according to the oral teaching style of R’ Meir and therefore of his teacher R' Akiva because it was the most concise and it contained wonders in all its words (R' Sherira). Whereas in the earliest days of the transmission of Oral Law, each teacher chose his own preferred style of teaching orally (Eruvin 62b: The teaching method of Eliezer ben Yaakov is small in quantity but well-sifted), but all accepted the same underlying principles and halachos, with some being concise and others expounding and drawing illustrations at length (Rebbi learned 13 different methods and taught 7 to R Chiya). But the mishnah had to be concise so it could be memorized in its exact wording. So R' Meir's way was chosen. Some mishnayos were formulated much earlier (The Eizehu Mekoman mishnayos read before Shacharis was preserved in the exact wording from the days of Moshe Rabbeinu, and no disputes are recorded in that whole perek.) We learn elsewhere that Mishna was taught in the days of Nechemiah regarding muktza, and a Mishna referring to R' Yochanan Ben Zakkai was composed during his time, not Rebbi's. Rebbi recorded disputes faithfully.
The Gemara (the explanation of the mishnayos) was also known to the earliest Rabbis (It says R' Yochanan ben Zakkai was the least of the students of Hillel and he knew the discussions of Abaye and Rava, meaning the arguments that would be written in the Gemara about the Mishnah's intent, and the logic behind each opinion. Because this, too (i.e. different possible understandings of the Oral Law), was passed down (Ritva). And because no one opinion was correct in the Gemara, rather Eilu V'Eilu divrei Elokim Chayim, the discussions were left to be decided by the Amoraim in the Gemara. The halacha there is decided by a number of factors (majority over minority; who the differing opinions were---Rav vs. Shmuel, Shmuel wins in civil cases, for example; machmir in sofek Min HaTorah and Meikil by sofek MiDeRabbonon; and more) The discussions of the Gemara are the basis of the works of the Geonim, which in turn are the basis of the Rishonim, which are the basis of the Achronim, which culminates on the Shulchan Aruch and other halachic contemporaries.
It's worth mentioning that most of the halacha we have today is Min HaTorah. A lot less than you think is actually MiDeRabbonan. The Rabbis only provided fences around the Torah.

I just want to clarify that the Shulchan Aruch is basically considered a Rishon, in the sense that he often argues with other Rishonim. Its author, Rav Yosef Karo ZT"L was a bit younger than the Abarbanel and a bit older than the Shita Mekubetzes, though his life overlapped with both of theirs.

The difference between Torah and all other wisdoms (l'havdil) is that whereas all other wisdoms were discovered and as time goes by, are enhanced as additional discoveries are made or theories developed, Torah, on the other hand, was given in its most perfect form by the Perfect Instructor, to the best student ever. After Har Sinai, the understanding of Torah can only get worse, not better. As generations go by, we rely on a longer and longer chain of messengers, which is obviously less reliable than first-hand information, which is what we once had, plus deviant movements, social upheavals in the nation's history, various different persecutions and Tzoras --- all this contributes to the reduction of the understanding of the Torah generation by generation.

However, knowing that all this was inevitable, Hashem put fail-safes into the Torah, so that (a) it would never be forgotten (a supernatural guarantee of lo sishkach mipi zaro), and (b) the people will always be able to follow the Halachah according what Hashem had originally intended them to (the rule of eilu v'eilu divrei Elokim chaim, and hashofet sheb'yamechah).

Usually, after specific nation-shattering events that caused unusual weakness in the "chain" of Mesorah and/or reduction in understanding of the Torah, the Gedolei Yisroel unanimously accepted the "end of an era", and that from now on, we no longer have the authority to disagree with decisions that were made by qualified parties in the previous period, when the chain was stronger.

This recognition comes from honest assessment by the Torah experts that because of those chain-breaking events, they simply can no longer figure out Torah the way we did before.

The Ramban (Bava Basra 12a) explains that these periods represent marked decreases in levels in Ruach HaKodesh.

Such lines of demarcation between eras include the elimination of prophecy (tekufas haneviim); the sealing of the Mishna by Rav Yehuda Hanasi; the finishing of the Gemora by Rava and Rav Ashi; and the de-centralizing of the Torah centers in Bavel and the scattering of Torah to France, Spain, and Germany, subsequent to the death of Rav Hai Gaon(which ended the era of Geonim and began the Rishonim).

It's not so easy, though, to pinpoint the end of the Rishonim, but it is generally accepted that the Bais Yosef or the Tur were approximately the last of them.

The period of the Achronim began afterwards, and, ironically, because of the low level to which we have sank, nobody officially figured out where to end the period of Achronim, if at all. Which mean that the Shach and the Taz are in the same era as us today, although no contemporary Torah scholar would disagree, on his own authority, with these giants (with perhaps very very rare exceptional cases). This is because the levels of Torah knowledge between now and then are clearly not comparable, as well as the decentralizing and interruptions of Torah teaching throughout the past 400 years because of events such as WWI, WWII, and numerous expulsions and massacres.

So although the era of the Achronim has perhaps not ended, we as a rule accord authoritative respect to those greater than us even within the same Tekufah.


The Oral Torah is NOT the Rabbis' interpretation of the Torah. It's what Hashem told Moshe on Har Sinai that was handed down. The Rabbis (Chazal) merely expounded on it, bringing proofs, etc. It is clear from the Chumash itself that Hashem also gave a Torah She Bal Peh on Mt. Sinai, otherwise the whole Torah makes no sense.

When Hashem told Moshe to put "totofos" between his eyes, don't you think Hashem explained to Moshe what Totofos are, being that the Jews were expected to fulfill this commandment immediately?

It says the make a Bris on the 8th day, but it also prohibits making wounds on the Shabbos. Don't you think Moshe was told what to do if a bris comes out on Shabbos?

When Hashem told Moshe put "tzitzis" on your garments, do you not think Moshe said "huh? What are tzitzis?"

When it says "Afflict yourselves on Yom Kippur" -- in what way should we afflict ourselves?

When it says "Take a nice fruit on Sukkos" - what kind of fruit does it mean?

Please note that, despite the Jews having a history of arguing over every little detail of life and law, NO JEW IN HISTORY ever questioned that the above refers to an Esrog, and NO JEW IN HISTORY ever questioned that the affliction means fasting.

The entire Torah shebiksav makes no sense unless there was a Torah shebal peh. And that's what the Talmud is. The discussions are about specific details, "what-if" scenarios, and the like. But it is a mistake to believe that the Gemora is "interpretations." It is, instead, Oral traditions received on Mt. Sinai like the rest of the Torah.


An important principle in Torah is that Torah shebal peh is not merely commentary on Torah shebiksav, but rather the code to decipher it. Two things you have to know:


When a writer writes a book, he knows that he is giving the reader certain messages and impressions. Therefore, when we get certain impressions from reading a book we assume it was the author’s intention.

Tanach is not like that. It was not written as a narration of what happened. It was written like a Mussar Sefer. The message of Tanach is not what happened, but rather to inform us of what Hashem wants us to do in this world. That is why Rashi (quoting Chazal) asks for a reason that the Torah starts from Bereishis, as opposed to Hachodesh hazeh lachem, which is the first Mitzvah.

The impressions and messages given by Tanach, the emphasis on certain things and downplaying of others is not based on the significance of the event, but rather on the significance of the lesson. All sins in Tanach are over-highlighted in order to emphasize the lessons that we learn from them.

So even though a casual reading of Tanach would give you the impression that Dovid did sin, that’s only if you read Tanach like a narrative. But if you read it like Tanach, you must understand that there is always MORE to the story. And that’s brings us to…


Torah shebiksav was never meant to be a coherent work without Torah shebal peh. It’s like, let’s say you read Aesop’s Fables, or l’havdil the Mishlei Shualim of R Berachya bar Natronai HaNakdan (these are books of fables – mesholim – stories about animals that are supposed to teach lessons), and let’s say you read a story about a fox and a snake and a bear. Then I tell you that the fox represents a shrewd guy, the snake represents an evil guy and the bear represents a hairy guy (why not?). Unless you understand that the book was intended not to be taken literally to begin with, you will consider my explanation outrageous. But if you realize that the author never intended to describe animal life but rather human life using animal mesholim, it makes perfect sense.

Same thing with Tanach. If you think that Tanach was made to stand on its own two feet and Torah shebal peh is merely commentary, then you will have a problem. But if you realize that Tanach was never ever meant to be read without Torah shebal peh, that it is only the “surface” and there is ALWAYS more underneath, usually a lot more than there would seem, then you have a different perspective.

There IS NO Torah shebiksav without Torah shebalpeh. They are not two distinct works, but rather two parts to one.


There’s nothing nonsensical or even strange about Torah shebal peh.

First, when the Midrash says something like the mountains argued, it doesn't mean the mountains literally, and no, it's not merely a teaching tool either. It means that the "sar" of the mountains were fighting with each other. A "sar" is the angel designated to maintain the mountain. Everything in this world, every blade of grass, every stone, every animal, every whatever, has a "sar". They are the media through which Hashem effects the world. Whenever a Medrash talks about inanimate objects talking, it means the "sar" and not the object itself.

The fact that certain people claim that Tefillin is meant metaphorically is itself "Oral Torah" - it says no such thing in the written law. And the statement "as I commanded you" can mean an endless number of things - the fact that they decided to connect it to that particular verse as opposed to others is also "oral law".

And how are they going to explain "tzitzis"? Also a metaphor? A metaphor for what?

And what is Tefillin a metaphor for? How do they know?

See, what they are doing is conceding that there is much more meaning to the Torah than merely what is written, which is - duh - what Oral Law means, but they do not claim to have any mechanism to know what the additional meanings are. Since they do not claim to have any alternative Torah shebal peh to ours, all they can do is say that the ambiguities in the written law mean whatever they decide it means.

But how do they decide? How did Moshe decide? Without a Torah she bal peh, you are still - even according to them - left with a hodgepodge of meaningless babble that can be interpreted any way the reader likes.


Even in the days of the Mishna there was always "Gemora". "Gemora" means the asking and answering questions about the Mishna. And that they always did, of course, even before the official "Gemora" was made. In fact, the Mishnaic literature mentions "Gemora" several times (Mesechte Kalah 3; Mesechte Soferim 16; Avos D'Reb Nosson 14 and 17). It's just that it was formalized in an official format later on.




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