Thursday, April 08, 2010

The Necessity of Oral Law

So a Reform correspondent and I are talking about the nature of Oral Law. Beyond our grundnorms of Divine-originated vs. human-originated Oral Law, I got into some discussion of how I have come to understand the different types of Oral Law.

> I understand that people have to interpret a document. I understand that
> specifics have to be laid down for some laws. However, how is something
> like "don't eat shellfish" need any further explanation? How is that
> "irrelevant [another commentator's characterization of our correspondent's
> argument]", You say that "oral Torah" begins at Sinai. We disagree

Well, from what I can see of the Oral Torah process, a lot of it has to do with places where we [including Our Sages in that "we", since they're the main body of people who actually worked out the derivations] know there's a rule, but it's not entirely clear how it fits with the Torah text. We know they have to be related, that's part of the definition of the system, but the exact relationship is unclear, whether through loss of tradition, or linguistic shift, or whatever.

Take the shellfish, [please].

First the Biblical passage:

9 These shall ye eat of all that are in the waters: whatsoever hath snapir and kaskeset in the waters, in the seas, and in the rivers, them shall ye eat.

10 And all that have not snapir and kaskeset in the seas, and in the rivers, of all that move in the waters, and of any living thing which is in the waters, they shall be an abomination unto you:

11 They shall be even an abomination unto you; ye shall not eat of their flesh, but ye shall have their carcases in abomination.

12 Whatsoever hath no snapir nor kaskeset in the waters, that shall be an abomination unto you.

We know, for instance, a rule, as you say, "don't eat shellfish". Our ancestors presumably knew this rule too. But there's no actual verse that says "don't eat shellfish." There is a verse that says "whatsoever hath snapir and kaskeset in the waters, in the seas, and in the rivers, them shall ye eat".

Then ensues a whole discussion on what do those two words mean. Once it's decided that it means "fins & scales", which word means which, etc., then we look at the fish, and find there are 4 kinds of scales. And that's where we get into rabbinically legislated details: Which kinds of scales are kosher (there are 4, of which 2 are kosher)? The Talmud itself says that "everything with kaskeset also has snapir", impying that they knew about the different types of scales, and only the 2 kosher varieties were called kaskeset. What about species where the scales are only present at one stage of the life cycle, but not at the stage where the fish is harvested? etc.?

But establishing the Torah's meaning in relation to known rules, this is also part of Oral Torah, and is presumed to have originated at Sinai. There's no way to prove it, of course, but rules that are universally (pre-1800) accepted, and are general rules, and are known to be based on verses, rather than explicit rabbinic legislation, are treated as if they originated at Sinai, because at that point, there's really no difference - universal ratification being equivalent in force to Divine transmission.

I've been thinking of it as a 2x2 matrix. Say, Written/Oral along one axis and Biblical/Rabbinic along the other

Written Torah is the Five Books of Moses, that's it.

Oral Torah is practically everything else, from the Prophets and Writings, down through the implications of the 4QMMT in the Dead Sea Scrolls, and the Fast Scroll (both being Hasmonean-period documents), through the Mishnah, Midrashim, Talmuds, and all their further interpretations and elaborations.

Within that, you have Biblical and Rabbinic Law. Biblical Law is rules that can be derived from verses using the 13 Hermeneutical Rules of Rabbi Ishmael (plus possibly some others). Now, we don't know which (or whether any) of those derivations are actually Sinaitic, but we assume that if they can be derived from verses, and were not otherwise legislated, they are treated AS IF they had come down from Sinai. [Yes, I know we say that certain of the rules require a Sinaitic component, but that's a different discussion, and one which is also hard to prove to someone who simply denies Divine origin to Talmudic law.] Because they're part of the interpretive system that began at Sinai.

Rules that are legislated similarly should have some tenuous connection to a verse, to demonstrate that they're within the Torah's system, and not total inventions, but there the textual derivation can be much weaker, because there's no need to prove a strong connection to the Divine.

So yes, even a simple rule like "don't eat shellfish" requires the Talmud, requires an Oral Torah, wherever that tradition is sourced, to turn it into practical law. AND to link it to the correct verse and phrases in the Written Torah to demonstrate the rule's Biblical nature.

The Rambam (Maimonides) further breaks down the Oral Law into different degrees of relatedness to the posited Divine origin, but that's another post.


micha said...

I would have given a different reason.

It's more important for us to have a legal process, with a human contribution to interpreting law, then having well defined laws. Even if all of Torah law were written out in a code, we would still be better served with an Orality rather than a static text.

RYBSoloveitchik writes about it (Ish haHalakhah) in terms of the "creative covenent" between G-d and the Jewish People that is a necessary part of the redemptive process.


thanbo said...

I don't think the reasons are incompatible. I was looking for a textual necessity for the existence of an initial Oral Law, since my problem was with Revelation and error-prone oral transmission.

Your reason is more metaphysical or psychological, that is, rationalizing an Oral Law whose authenticity you already believe in as a grundnorm.

One is a justification for the BT, one is an appeal to the wider world from the FFB.

But yes, no static code can deal with all future questions. The issue I had was whether that dynamic structure of "new" law was rooted in the Beginning, or created by Man when he perceived the difficulties of the Torah's telegraphic commands.

הגיין said...

Question to all (Thanbo, R' Berger, ...):

Are your positions agreement or disagreement with the last assertion (emphasized) of:

[מ"ת. הקדמה. א]
כל המצוות שניתנו לו למשה בסיניי--בפירושן ניתנו, שנאמר "ואתנה לך את לוחות האבן, והתורה והמצוה" (שמות כד,יב): "תורה", זו תורה שבכתב; ו"מצוה", זה פירושה. וציוונו לעשות התורה, על פי המצוה. ומצוה זו, היא הנקראת תורה שבעל פה.

Whether they are or not is not clear to me.


הגיין said...


The term 'Grundnorm' is new to me. (I happen to like German philosophical terms.)

I looked it up in Wikipedia, where it says (in the first paragraph): "This 'basic norm', however, is hypothetical."

Is this what you mean? Are there other Jewish thinkers who use this term?

הגיין said...


Surfing from Grundnorm to Hans Kelsen to Legal Positivism, I find (extended quote):

"Legal positivism is a school of thought in philosophy of law and jurisprudence. The principal claims of modern legal positivism are that:

* There is no inherent or necessary connection between the validity conditions of law and ethics or morality.

* Laws are rules made, whether deliberately or unintentionally, by human beings."

I've a feeling we're not in Kansas anymore!

thanbo said...

Well, as to the last, the first part is pretty much self-evident, and depends on the faith-statement which is the second part. If people create all the law, the law has no necessary relationship to ethics/morality. Without God to define the Good, what's left? Only what works and what doesn't work, and for whom.

And stating that law is created by humans, well, it's a faith statement - it simply excludes religious law codes from the universe of discourse. It's not a provable truth, it's more of an axiom, and since it implies "man-created not god-created", it becomes a faith statement - theological and not truly provable.

thanbo said...

And the Rambam leaves a lot of room for interpretation, particularly in light of the Introduction to the Mishnah.

The mitzvot that were given to Moshe at Sinai - does he mean only the 37 Halachot Lemoshe Misinai? And when he says "given with their explanations", is that "all their explanations" or "some..."? IIRC, unspecified quantity is particular, not universal.

micha said...

Actually, I don't think the Rambam meant what it looks like he's saying there, as he only believes that halakhos leMoshe miSinai have only one interpretation. For that matter, his notion of derashos is constructive, rather than exploratory. (Batei din create derashos, not find preexisting ones.)

That said, I consciously reject the Rambam's model of Torah sheBe'al Peh (as I understand it) in favor of Rashi's. The Rambam treats halakhah as a truth to be found, that it's critical to know what R' Meir meant when he said something. The vast majority of rishonim treat halakhah more as an oral culture.

IOW, I believe (and the Rambam is IMHO part of a very small mi'ut who disagreed) that how Rav Moshe Feinstein understood the Taz's explanaiton of the Shulchan Arukh's position on the Behag's shitah in the gemara's peirush of R' Meir in the mishnah is far more relevant than whether or not we correctly reconstructed R' Meir's intent.


הגיין said...

Rabbi Berger:

1. Thanks.

2. You write: "... I don't think the Rambam meant what it looks like he's saying there." What looking-like-he's-saying are you talking about?

3. In the Rambam, 'mitsva' and 'halakha' are distinct things, so halakhos leMoshe miSinai don't help in interpreting the statement at issue.

Thanbo: Thanks. I'm still trying to parse your answer.

micha said...

My intent is much like my understanding of Jon's (Thanbo's) comment.

The Rambam can't be speaking of all interpretations of Torah law, as it doesn't fit his other statements about interpretation. E.g. #13 in the same haqdamah. What he actually does mean is what keeps Maimonodian scholars fed. But I think the Rambam is saying that the system was given to Moshe, and thus everything that is to be considered valid Torah is either contained in what he was given or derabbanan. Not that every conclusion was actually defined outright.


הגיין said...

Rabbi Berger,

Re.: Your penultimate comment

Your penultimate comment finally "sunk in" for me over Shabat. It's by far the most unflinching -- and thus clear -- statement of the position I've ever read. Many thanks for lifting a confusion I've suffered with for several decades.

You say: "... I believe (and the Rambam is IMHO part of a very small mi'ut who disagreed) that how Rav Moshe Feinstein understood the Taz's explanaiton of the Shulchan Arukh's position on the Behag's shitah in the gemara's peirush of R' Meir in the mishnah is far more relevant than whether or not we correctly reconstructed R' Meir's intent." Would I be inferring correctly that for you the empirical majority (rov) has a major theological significance? If my inference is approximately right, please tell me something about that theology.


micha said...

I'm not saying there is theological significance to rov.

Rather, that Hashem gave us the tools for defining our own path to redemption. Majority isn't theologically significant, it's a means for defining that path.

This is why the Torah is supposed to develop as the nation does, rather than being a set of incontrovertible ideas set in stone.


הגיין said...

Rabbi Berger,

"Redemption", surely, is "theologically significant", insofar as it cannot occur without action by the Go'el Yisrael. How, then, can a "means for defining [the] path [to redemption]" not be theologically significant?

micha said...

The Jewish concept of ge'ulah is that a person has to work toward redeeming themselves. In contrast to Xian notions of salvation where the person is told that it's something their deity does for them.

This is being beTzelem Elokim -- we are what we define ourselves to be.

I'm saying that the Go'eil didn't so much give us individual dinim as a process for producing halakhah. Yes, there are numerous open-and-shut dinim that were given at Sinai, but were they given for their own value, or to "prime the pump" so that the system had material to build from?

Humanity has to not only choose right over wrong, but also which approach to right best fits our abilities and inclinations. Otherwise, it's not truly self-defining.


הגיין said...

Rabbi Berger,

You say: "The Jewish concept of ge'ulah is that a person has to work toward redeeming themselves. In contrast to Xian notions of salvation where the person is told that it's something their deity does for them."

I think you might have misunderstood me. Of course, there is the work of asiyat teshuva. But, though necessary, that is not causally sufficient. Various of His actions are then still required. We call them 's'licha', 'kapara', etc. And for ge'ula, of course, "Ein Yisrael nigalin ela bi-teshuva." But, again, His action is required beyond that.

You say: "This is being beTzelem Elokim -- we are what we define ourselves to be."
You can't mean exactly what you wrote -- that's exactly Bavel.

Does that clarify my earlier question?

Anonymous said...

Micha, yasher koach for treating halacha as an evolving subject matter. I assume that your argument against total dependence on a static text would also apply to the Talmud. Such is, indeed, the position of Rav Shmuel Glassner, a major Hungarian posek in his "Dor Revii" wherein he decries the need felt to reduce the oral torah to writing. That innovation had, in his view, an unfortunate side effect of converting the inherent dynamic of a rebbe-talmid chain of transmission into a static text. Of course, some reinterpretation of the words and ideas of the talmudic protagonists is still possible.

micha said...

I fail to see the need to quote the Dor Revi'i. The composition of the mishnah by Rebbe, possibly centuries before it was actually put into writing, was an instance of "eis laasos Lashem heifeiru Sorasekha". Codification was "always" considered a necessary evil. Ever since the first code.

But Rav Yehudah haNasi's decision is not considered an error. The need was sufficient.

IOW, things get ever more textual as our ability to maintain orality declined. It's sad to lose that ability, but if that's a given, then codification and textualization is the correct and proper response.


micha said...

הגיין quoted me: "This is being beTzelem Elokim -- we are what we define ourselves to be." and asked "You can't mean exactly what you wrote -- that's exactly Bavel."

I'm at a disadvantage, since I don't know which explanation of the sin of Midgal Bavel you're referring to.

However, there is a huge difference between saying a person is who we define ourselves to be, and saying that the ideal is what we want it to be.

"Qedoshim tihyu ki Qadosh Ani" implies that our being holy is something we decide. That doesn't mean the definition of holiness is what we decide. Rather, that Hashem leaves it up to us whether or not we are holy.

"Bederekh she'adam rotzeh leileikh, sham molikhin oso."

"Hakol biydei Shamayim chutz miyir'as Shamayim." (Which, in contrast to the previous, is a real maamar Chazal, not a later-dated pisgam.)

I'm saying there are two pieces to that:

1- The choice of good over evil ("uvacharta bachayim"), and
2- The choice between one good and another.

This is a world full of dialectics, conflicting positive values. To take an example from the Rambam: One can choose the path of Chokhmah, the middah habeinonis (Dei'os 1:4), or the path of Chassidus, more to one side than the other (ibid, halakhah 5).

Similarly, Hashem gave us Beis Shammai's path and Beis Hillel's path. The Sepharadi paths and the Ashkenazi ones, Chassidic Deveiqus and Misnagdic Temimus, etc... He left it up to us to decide which ones would become halakhah. When do we as a community need some kind
of unity, and around which path will we unify.

This is a choice between good and good -- "eilu va'eilu divrei E-lokim Chaim".