the Week of Proper 19 / Ordinary 24
Law, the Oral
The 1901 Jewish Encyclopedia
Term used to denote the laws and statutes which, in addition to the Pentateuch, God gave to Moses. According to the rabbinical interpretation of Exodus 34:27, the words indicate that besides the written law——God gave orally to Moses other laws and maxims, as well as verbal explanations of the written law, enjoining him not to record these teachings, but to deliver them to the people by word of mouth (Giṭ. 60b; Yer. Meg. 4:74a; comp. also IV Ezra [II Esdras] ). The expression "Torah shebe-'al peh" denotes, therefore, "the law indicated in the word ' 'al peh,'" and hence only the law which was given to Moses orally. But even disregarding that Talmudic interpretation, the expression is equivalent to the Torah, which was given orally (), not in writing. Compare (Soṭah 7:7), used of a recitation of the Biblical text by rote. In a wider sense, however, "Torah shebe-'al peh" includes all the interpretations and conclusions which the scribes deduced from the written Torah, as well as the regulations instituted by them (comp. Yoma 28a, b and Rashi ad loc.), and therefore comprises the entire traditional teaching contained in the Mishnah, the Tosefta, and the halakic midrashim, since these were taught only orally and were not committed to writing. In later haggadic statements, however, the complete body of rabbinical doctrine is said to have been revealed to Moses on Sinai; so that R. Joshua b. Levi declared (Yer. Peah 2:17a) that all the rabbinical teachings, even those which the scholars found and promulgated later, were given to Moses on the mountain (comp. also Ber. 5a).
These passages, on the other hand, are by no means intended to be taken literally, or to be supposed to imply that God imparted to Moses the entire rabbinical teachings as they were developed in the course of time; since the forty days which Moses spent on Sinai would not have been sufficient, and the Midrash itself says (Ex. R. ) that the full extent of the rabbinical teachings was revealed to Moses in outline by giving him the rules according to which they might be developed. In conformity with this statement, the substance of these teachings either was deduced from the written law by means of exegetical interpretations and logical conclusions—being therefore contained by implication in the written law and so given to Moses—or it consistedof statutes which the Rabbis promulgated according to their own judgment, as they were justified in doing according to the traditional interpretation of Deuteronomy 17:10-11 (comp. Sifre, Deut. 153-154 [ed. Friedmann, pp. 104b-105a]), since Moses had thus provided for such contingencies.
The earliest name for the oral teachings was "miẓwat zeḳenim" (Suk. 46a). In the New Testament it is called παραδόσεις τῶν πρεσβυτέρων, and by Josephus and Philo παράδοσις ἄγραφος τῶν πατέρων διαδοχή. After the destruction of the Temple the term see See MISHNAH, the δευτέρωσις of the Church Fathers, was employed instead; the phrase "Torah shebe-'al peh" (see Sifre 112c [ed. Weiss]; Sifre, Deuteronomy 37:10,145a [ed. Friedmann]) is found already in the time of the Tannaim, and is also ascribed to Shammai and Hillel (Shab. 31a), the words "shebe-'al peh" in this passage being a later addition made to explain the expression "shete torot" (two laws). Shammai and Hillel were the first to speak of the written and the oral law as equally authoritative (ib.). This is illustrated by the episode between Hillel and the Bene BATHYRA (2) (Yer. Pes. 6:33a), who would not at first admit Hillel's arguments that it was permitted to desecrate the Sabbath by the Passover sacrifice, although they submitted as soon as he said: "Kak shama'ti" (= "It has been transmitted to me"). This story, as well as the phrase "im ḳabbalah neḳabbel" (= "if it is a tradition, we must accept it"), which occurs frequently in the halakic midrashim, shows that even though no explicit reference to such law outside of and in addition to the Pentateuch is found anywhere in the prophetic or the hagiographic books of the Old Testament, the belief in the existence of an oral law was widely accepted, and was not rejected by any scholar. This belief is also mentioned in Sifre, Deut. 4 (ed. Friedmann, 66b), and by R. Akiba in Men. 29b, while, according to the generally accepted explanation, the Mishnah Abot 1:1 indicates the successive traditioners of the oral law.
The existence of an oral law was deduced, furthermore, from the character of the written law as well as of the other books of the Old Testament. Many of the Mosaic laws are worded very briefly, and are almost unintelligible without certain presuppositions which were assumed to be generally held; and some of the laws even contradict each other, e.g., Exodus 13:6 and Deuteronomy 16:8 (comp. Mek., Bo, 17 [ed. Weiss, p. 25a]). If the written Torah is regarded as a complete code, it must be assumed that on certain points of some of the laws the people received instruction supplementing the Pentateuch itself, so that the written law might be put into a brief form.
Judah ha-Nasi and Oral Tradition.
Thus Judah ha-Nasi infers (Ḥul. 28a) from the sentence "Thou shalt slaughter" ("we-zabaḥta"; Deuteronomy 12:21), in which is no reference to any description of the ritual connected with slaughtering, that God taught Moses orally the place and method of the act. This proof of Judah ha-Nasi's of the existence of an oral tradition regarding the ritual of slaughtering was generally but erroneously interpreted as though he had inferred from "ka-asher ẓiwitika" (= "as I have commanded thee"), the words following "we-zabaḥta," that God verbally instructed Moses how to slaughter. This proof was, therefore, attacked on the ground that the words "as I have commanded thee" refer to ib. 12:15. Judah ha-Nasi actually drew his inference, however, merely from the words "we-zabaḥta," since the term "slaughter" implies a certain ritual in the performance; and as this was not given to Moses in writing it must have been given to him by word of mouth. The following examples of Mosaic laws are held to require some explanation or supplement not given in the written law, and consequently to presuppose the existence of an oral law to furnish the explanation or supplement in question.
The law given in Exodus 18:2 says that a Hebrew slave acquired by any person shall serve for six years; but it does not state why and how such a slave may be acquired. The law furthermore provides that if such a slave has served for six years, his wife, if he has one, shall go free with him; but it does not state that the wife of the slave accompanies him to his master's house, nor does it define her relation to the master. The law in Deuteronomy 24:1 et seq. says that if a man dismisses his wife with a bill of divorce ("sefer keritut"), and she marries again but is dismissed with a bill of divorce by her second husband also, the first husband may not remarry her. The fact that a woman may be divorced by such a bill has not, however, been mentioned, nor is it stated how she is divorced by means of the "sefer keritut," or what this document should contain, although it must have had a certain form and wording, though possibly not that of the later "geṭ." These examples, to which many more might be added, are held to imply that in addition to and side by side with the written law there were other laws and statutes which served to define and supplement it, and that, assuming these to be known, the written law did not go into details. It appears from the other books of the Old Testament also that certain traditional laws were considered to have been given by God, although they are not mentioned in the Pentateuch. Jeremiah says to the people (Jeremiah 17:21-22): "Bear no burden on the Sabbath day, nor bring it in by the gates of Jerusalem; neither carry forth a burden out of your houses on the Sabbath day, neither do ye any work, but hallow ye the Sabbath day, as I commanded your fathers." In the Pentateuch, on the other hand, there is only the interdiction against work in general (Exodus 20:9-11); nor is it stated anywhere in the Torah that no burdens shall be carried on the Sabbath, while Jeremiah says that the bearing of burdens, as well as all other work, was forbidden to the fathers. It is clear, furthermore, from Amos 8:5, that no business was done on the Sabbath, and in Nehemiah 10:30-32 this prohibition, like the interdiction against intermarrying with the heathen, is designated as a commandment of God, although only the latter is found in the Pentateuch (Deuteronomy 7:3), while there is no reference to the former. Since the interdictions against carrying burdens and doing business on the Sabbath were regarded as divine laws, althoughnot mentioned in the Pentateuch, it is inferred that there was also a second code.
Objections to Its Existence.
The existence of an oral law dating from the Mosaic time implies, of course, the belief that the Pentateuch, in the form in which it now exists, was entirely the work of Moses, to whom it was revealed by God. That an oral law has existed since the Mosaic time can be denied only from the point of view of modern Biblical criticism (for the views of Reform Judaism on the Oral Law Reform). Objections, on the other hand, which are brought against the assumption of the existence of the oral law by those who believe in revelation and who recognize the divine origin of the written law, or "Torah shebiketab," lack support. The chief argument against the oral law is based on Deuteronomy 4:2: "Ye shall not add to the word which I command you, neither shall ye diminish aught from it, that ye may keep the commandments of the Lord your God which I command you." Those who deny the existence of the oral law refer the phrase "the commandments which I command you" to the written law only, which is, therefore, designated by this passage as a complete code needing no amplification and admitting no diminution, whence the conclusion is deduced that there was no oral law in ancient times, since the written law precluded its existence. On the other hand it is held that the phrase "the commandments which I command you" does not necessarily exclude oral laws and statutes.
Moreover, the interdiction against adding to the law was directed only against individuals, not against the Sanhedrin or the judges, who were expressly empowered (Deuteronomy 17:9-11) to expound and interpret the laws and to make new statutes; for the Sanhedrin or any other court would formulate their decisions only after examining the traditions preserved among the people and in conformity with certain logical and hermeneutic rules deduced from Scripture. Nor are the other arguments against the existence of the oral law valid in view of the fact that a denial of it necessarily leads to a denial of the divine origin of the written law; since the latter must appear defective in great part unless supplemented by the former—a view which is incompatible with the assumption of its divine origin. The arguments in favor of the Mosaic origin of the oral law, however, merely prove that certain traditions and verbal regulations were current among the people or their elders and scribes from the time of Moses, although the identity of the traditions and statutes derived from Moses on Sinai, and which are scattered through the Mishnah and the halakic midrashim (Yer. Peah 2:17a), is unknown, and there is no reliable account or trustworthy criterion to separate and distinguish the Mosaic requirements from the great mass of the oral law in the wider sense. While it is true that the Mishnah and the Talmud contain many sentences called "halakot leMosheh mi Sinai" (= "oral laws revealed to Moses on Sinai"), some of which may really be based on Mosaic tradition, yet there is no proof of the accuracy of this terminology. The phrase "halakah le-Mosheh mi Sinai" must not be taken literally, since many of the halakot thus designated are admittedly later rabbinical statutes. The expression merely indicates, as Asher b. Jehiel explains in "Hilkot Miḳwa'ot," 1, that the halakot in question are as clear and as generally recognized as if they were derived from Moses on Sinai (comp. Jair Ḥayyim Bacharach in his responsa "Ḥawwot Yair," No. 192), while, according to R. Samuel (Tem. 16a), many of the halakot which Moses had taught orally were forgotten, and were never transmitted to later generations. In like manner the observances designated in the Talmud as "taḳḳanot" derived from Moses can not be definitely ascribed to him, and many of them are stated by the casuists to be rabbinical regulations. The phrase "Mosheh tiḳḳen" (= "Moses established") does not mean that Moses instituted or introduced the usage in question, and then transmitted it to the people by word of mouth, but that, as the "Pene Mosheh" to Yer. Ket. 1:5,25a explains, some allusions are found in the Pentateuch concerning certain regulations which may, on the strength of these allusions, be ascribed to Moses (comp. M. Bloch, "Die Institutionen des Judentums," 1:1-53).
Contents of Oral Law.
The substance of the "Torah shebe-'al peh" in the wider sense, as found in the Mishnah, in the Tosefta, and in the halakic midrashim, may be divided into the following eight groups:
- Explanations of certain statutes of the written law, which are not altogether intelligible without them, and which statutes therefore presuppose an oral interpretation. Such explanations admit of being connected in some artificial way with Scripture.
- Ancient halakot which have no connection whatever with Scripture and can not be connected with it, thus deriving their authority only from the tradition which ascribes them to Moses on Sinai. In the case of these two groups it is impossible to ascertain which elucidations and rules were really given to Moses on Sinai, and which were added later. The criterion of Maimonides, that all interpretations and statutes which never evoked divergent opinions are Sinaitic in origin, is correct only in a negative sense. Those explanations and regulations which have been interpreted in various ways are certainly not Sinaitic; but, on the other hand, many interpretations and statutes which are accepted unanimously and generally are equally non-Sinaitic in origin, since they are rabbinical institutions and laws which have never been explained divergently (comp. Ẓebi Hirsch Chajes, "Mebo ha-Talmud," pp. 10b et seq.).
- Halakot found in the prophetic books. Some of these originated at the time of the Prophets; but others are much older, and are, perhaps, even Sinaitic, having been transmitted orally, and committed to writing by the Prophets (comp. Sanh. 22b). They are called also "Dibre Ḳabbalah" (Words of Tradition).
- Interpretations and regulations defining many written laws, as well as new halakot, which the first scribes, beginning with the time of Ezra, formulated. They are called also "Dibre Soferim" (Words of the Soferim).
- Interpretations and regulations covering the written law, as well as new halakot, which the Tannaim deduced from Scripture by means of hermeneutic rules or by logical conclusions. There are differences of opinion among the scholars in regard to most of these explanations and definitions; but they are of equal weight with the written law, and are called also "Debar Torah" (Regulation of the Torah).
- Customs and observances ("taḳḳanot") which were introduced at various times by different scholars. They are ascribed partly to Moses, partly to Joshua, but chiefly to the members of the Great Synagogue or the Soferim, and are called also "Dibre Soferim."
- Statutes and decisions ("gezerot") decreed by the Sanhedrin or court, and generally accepted, thus becoming laws which could be abrogated only by another court superior to the first one in numbers and scholarship.
- Statutes and regulations for which the scholars had no tradition or allusion in Scripture, but which they accepted as standards after deriving them from the customs and laws of the country in which they were living. These are called "Hilkot Medinah" (Statutes of the Country). The regulations, observances, and statutes included in the last three groups were not considered equal in validity to the written law, but were regarded merely as rabbinical regulations ("de-rabbanan").
Objection to Writing.
The entire oral law in the wider sense, namely, the entire material of the Mishnah, the Tosefta, and the halakic midrashim, was preserved only orally, and was not reduced to writing until the beginning of the third century C.E., because there was a prejudice against recording halakot. The origin of this objection is unknown. There has never been any formal interdiction against recording halakot, nor are there any references to any date of such a prohibition or to any person who issued one. Even the two Talmudic passages which allude to the custom of not recording halakot do not mention a formal interdiction. One of these passages, the comment of Judah b. Naḥmani, "What has been said orally thou mayest not say in writing, and vice versa" (Giṭ. 60b and parallel passages), is merely a haggadic explanation of the prevailing custom. If this interpretation had been taken literally, the Prophets would not have been allowed to commit their prophecies to writing (comp. Weiss, "Dor," 1:92 et seq.). The second passage, which is by R. Johanan and reads as follows: "He who records halakot is like him who burns the Torah; and whosoever studies these written collections has no reward" (Tem. 14b), is merely a reproof directed against those who make such compilations for public use. As the MISHNAH had been committed to writing by the time of R. Johanan (199-279), there could be no question of a prohibition against recording halakot.
It may be proved also that halakot were committed to writing even before the time of Judah ha-Nasi. In addition to "Megillat Ta'anit," which is mentioned in 'Er. 62b and elsewhere, and "Megillat Yuḥasin," which is mentioned by Ben 'Azzai (Yeb. 49b), Johanan b. Nuri, a contemporary of R. Akiba, mentions a "Megillat Sammanim," which was a list of the spices used for the incense and had been given to him by an old man (Yer. Sheḳ. 5:49a). R. Meïr and R. Nathan, wishing to embarrass R. Simon b. Gamaliel, wrote halakic questions and answers on slips of paper which they threw into the academy (Hor. 13b). It is evident, therefore, that it was merely customary not to commit halakot to writing, this usage, which was not a formal prohibition, possibly being derived from Ecclesiastes 12:12. Various other explanations have been given for the origin of this prejudice, the earliest one being that in Tan., Ki Tissa (ed. Buber, pp. 58b-59a), which is implied in IV Ezra 14 According to this passage, the Mishnah, the Tosefta, and the halakic midrashim were not committed to writing originally, in order that they might remain the peculiar property of Israel; for had they been recorded, other nations would have appropriated them as they appropriated the written Torah (through translations), and Israel would in that case have been like the Gentiles (comp. Yer. Peah 2:17a).
According to more recent explanations (Krochmal, "Moreh Nebuke ha-Zeman"; Weiss, c.), the scribes were unwilling to record their elucidations and regulations because they depended largely on the interpretation and approval of the court (bet din); but if they had been committed to writing, they would have become fixed and definite laws without such interpretation. SINAITIC COMMANDMENTS.
- Maimonides, Introduction to his commentary on the Mishnah;
- Nachman Krochmal, Morch Nebuke ha-Zeman, ch. , Lemberg, 1854;
- Ẓebi Hirsch Chajes, Mebo ha-Talmud, pp. 1-14, ib. 1845;
- Malachi Cohn, Yad Mal'aki, pp. 28a-29a, 47b-48b;
- I. B. Lewinsohn, Zerubbabel, part , pp. 93 et seq.; part , pp. 74-79, Warsaw, 1875;
- idem. Bet Yehudah, 1:83-87,117-134, ib. 1878;
- Isaac Reggio, Beḥinat ha-Ḳabbalah, pp. 21-34, 106 et seq.;
- David Nieto, Kuzari Sheni, or Maṭṭeh Dan, ib. 1884;
- Z. Frankel, Hodegetica in Mischnam, Leipsic, 1859;
- S. Klein, Mi-Pene Ḳoshet, Frankfort-on-the-Main, 1861;
- J. Brüll, Einleitung in die Mischna, 1:3-11, 2:1-13, ib. 1876-85;
- M. Bloch, Die Institutionen des Judentums, Sha'are Torat ha-Taḳḳanot, Introduction, and part , pp. 1-53, Vienna, 1879;
- M. Brück, Rabbinische Ceremonialgebräuche in Ihrer Entstehung und Geschichtlichen Entwickelung, Breslau, 1837;
- D. Hoffmann, Die Erste Mischna, pp. 5-12, Berlin, 1882;
- I. H. Weiss, Dor, 1:1-93, Vienna, 1876;
- Gotthard Deutsch, The Theory of Oral Tradition, Cincinnati, 1896;
- Manuel Joël, Blicke in die Religionsgeschichte zu Anfang des Zweiten Christlichen Jahrhunderts, 1:59-64, Breslau, 1880;
- J. S. Bloch, Einblicke in die Gesch. der Entstehung der Talmudischen Literatur, Vienna, 1884;
- Abraham b. Josiah, Emunah Omen, pp. 5 et seq., Eupatoria, 1846.
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Singer, Isidore, Ph.D, Projector and Managing Editor. Entry for 'Law, the Oral'. 1901 The Jewish Encyclopedia. https://www.studylight.org/​encyclopedias/​eng/​tje/​l/law-the-oral.html. 1901.