Question: The Written Law is there plain to see as it is found in the five Books of Moses. However, from whence does the Oral Law come? I’m not asking as one who doubts its veracity – rather, I would just like to know and not simply follow blindly.
Mark Grosz
Via E-mail
Answer: The study of both the Written Law – that which is clearly explicit in the Torah – and the Oral Law, commonly referred to collectively as halacha – is found in the wellspring of the Talmud and the Midrash and further in Rambam, the Chinuch, and the poskim (the later decisors), for to understand even the Written Law, one must delve into all of the above. For example, what constitutes tefillin, an etrog, or a sukkah? Without the Talmud, we would surely be unable to observe any of these Written Laws.
The concept of an Oral Law pre-Sinai first comes up in Parshat Toldot on the verse (Genesis 26:5) “Ekev asher sham’a Avraham b’koli vayishmor mishmarti mitzvotai chukotai v’Torotai” – Because Abraham obeyed My voice, and observed My safeguards, My commandments, My decrees, and My Torahs.” So great was Abraham that it is hard to fathom how he did this from his earliest understanding, actually keeping both the Written and the Oral Law.
Rashi on that verse explains as follows: He listened to My voice when I put him to the test. He minded My safeguards (precautionary measures for the purpose of avoiding transgressing prohibitions of the Torah, such as the prohibition against marrying second-degree relations and the rabbinic prohibitions concerning Shabbat). He listened to My commandments – things that even, were they not written, would be fit to be included in My commandments, such as theft and murder. He listened to My decrees; things that the evil inclination and the nations of the world argue against, such as eating pork and wearing shatnez (mixtures of wool and linen) – laws for which there are no fathomable reason, but which are edicts of the King and decrees upon His subjects. He listened to My “Torahs,” plural: to include the Oral Law, the laws given by [G-d] to Moses at Mt. Sinai – “halacha l’Moshe mi’Sinai.”
Here we see the Oral Law referred to as halacha – law given to Moses at Sinai – for the first time. Indeed, the Jerusalem Talmud refers to each Mishna as “halacha.”
The meaning of the word halacha is found in Sefer He’Aruch, a lexicon of the Talmud and the Midrashim containing terms that need explanation – the Talmudic dictionary par excellence. The Yiddish translation in Sefer He’Aruch provides several equivalent terms for halacha: walk, method, location, legal judgment, order. Sefer He’Aruch also provides numerous sources, and in reference to halacha, we find a statement from Tanna Devei Eliyahu Zuta (also cited in Megillah 28b as well as in Niddah 73a): “Tanna Devei Eliyahu, Kol hashoneh halachot muvtach lo shehu ben Olam Haba, shene’emar, ‘Halichot olam lo; al tikrei ‘halichot’ ela ‘halachot’” – It was taught in Tanna Devei Eliyahu (a baraitha attributed to the Prophet Elijah) [that] whoever learns halachot is assured that he is destined for the World to Come, as it says (Habakkuk 3:6), ‘His ways are to eternity.’ Do not read ‘halichot’ (ways) but ‘halachot’ (laws).
The term halacha appears in the text of three mishnayot of our Babylonian Talmud: Seder Zera’im, Pe’ah 2:6; Seder Nezikin, Eduyyot 8:7; and Seder Tahorot, Yadayim 4:3.
The relevant Mishna in Pe’ah states: “Nachum the Scribe said, ‘I have it [a tradition] from R. Miasha, who received it from his father, who had it from the “Pairs” (five renowned pairs of scholars, the last of whom were Hillel and Shammai, who co-served as chiefs of the Sanhedrin, one as nasi and the other as av bet din), who had it from the Prophets: It is an [oral] ancient ordinance [given] to Moses at Sinai (halacha l’Moshe miSinai) that if a man sows his field with two kinds of wheat and makes it up into one threshing floor at harvest time, he is obligated to leave over only one pe’ah (corner of the field); but if the harvest fills two threshing floors, he has to allocate two corners.”
The Mishna in Eduyyot states: “R. Yehoshua said, ‘I have received [a tradition] from R. Yochanan b. Zakkai, who heard it from his teacher, and his teacher [received it as a tradition] from his teacher, as an ordinance given to Moses at Sinai (halacha l’Moshe miSinai) that [the Prophet] Elijah will not come to pronounce “unclean” or declare “clean,” or who must be expelled and who may be accepted, but to expel [any ineligible ones] who were accepted through use of force and reinstate those who were removed by violence.”
Finally, we find the phrase “halacha l’Moshe miSinai” in a Mishna in Yadayim dealing with the tithes that must be given by Israelites living in the lands of Ammon and Moab in the Sabbatical year (where it was permitted to harvest in the seventh year of the seven-year cycle), and the majority of the scholars voted that these Israelites must give the poor man’s tithe. When the decision was announced to R. Eliezer, who had been banned from participation in the discussions because he had been accused of heresy (see Rambam ad loc.), Rabbi Eliezer wept and said, quoting a verse (Psalms 25:14), “The counsel of the L-rd is with those that fear him, and He will reveal His covenant to them.” He then said to the messenger to tell the participants in the discussion not to be anxious on account of the vote, “for I have it [as a tradition] from R. Yochanan b. Zakkai, who heard it from his teacher, and his teacher [heard it] from his teacher, and so back to an ordinance of Moses at Sinai, that [Israelites in] Ammon and Moab must give the poor man’s tithe in the Sabbatical year.”
The concept of halacha and “halacha l’Moshe miSinai” is found throughout the Talmudic discussions. In fact, it is what drives the Talmud in its mission to explain the multitude of laws that govern our lives.
Rambam (Sefer HaMitzvot, shoresh sheni) explains the laws that are derived from the 13 fundamental principles of exegesis listed in Baraita deRabbi Yishmael, which forms the introduction to Sifra (a Midrashic work on Vayikra). He maintains that these laws, if there is no verse to support them, are not to be considered on par with the laws explicitly stated in the Torah but rather as “divrei Sofrim,” or Rabbinical laws – except in those cases where the Sages specifically stated that they are indeed d’Oraita (Biblical) despite there being no supporting verse.
Ramban, in his commentary ad loc., strongly disagrees, stating: “I repeat that we have to protest loudly against this statement of the Master [Maimonides] since there are many instances in the Gemara where laws are deduced according to these principles, and the intention in all of them is that they are part and parcel of the Written Law.”
The Tur (Yoreh De’ah 294) sides with Maimonides – a clear example being how he rules in regard to Orla, the three-year period we must wait before we are allowed to eat the fruit of a newly planted tree. In Eretz Yisrael, the law of Orla is d’Oraita (Biblical), but outside the Land of Israel, in the Diaspora, it is considered “halacha l’Moshe miSinai.”
To be continued.