Question: The Written Law is there plain to see as it’s 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 simply like to know and not just follow blindly.
Mark Grosz
Via E-mail
Synopsis: Last week we focused on the meaning of the term “halacha,” which can be understood as method, legal judgment, or order, and we cited three mishnayot (Pe’ah 2:6, Eduyyot 8:7, and Yadayim 4:3) which introduce the concept of “Halacha l’Moshe miSinai,” namely, an ordinance given to Moses at Sinai that is not explicitly stated in the Torah. Rambam and the Tur consider these ordinances, transmitted orally through the chain of generations, as part of “Divrei Soferim,” – Rabbinical laws where there is no supporting verse, in contradistinction to Biblical laws (except in certain cases). However, many laws, even those specifically stated in the Torah, can only be fulfilled by relying on exegesis and transmitted oral tradition.
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Answer: An example of Halacha l’Moshe miSinai is the mitzvah of Arba Minim on Sukkot (Vayikra 23:40): “U’lekachtem lachem bayom harishon pri etz hadar…” – You shall take for yourselves on the first day [of Sukkot] the fruit of (lit.) a beautiful tree… How do we know which tree is meant here? The Talmud (Sukka 35a) deduces through exegesis that it is the citron tree, whose fruit is the etrog. This, too, is referred to as “Halacha l’Moshe miSinai.” Likewise, in order to fulfill the obligation of donning tefillin, as stated in Deuteronomy 11:18, “U’ke-shartem otam le’ot al yedchem ve’hayu otam le’ot al yedchem ve’hayu letotafot bein eineichem” – And you shall bind them for a sign upon your hand, and let them be frontlets between your eyes – we need to fill in many particulars of this commandment, such as the content of the parchments, the shape of the boxes containing the parchments, the leather straps attached to the phylacteries, and other details. We learn these and other specifications – even such a relatively minor detail as the color of the leather straps – as “halacha l’Moshe miSinai” (Menachot 35a).
Similarly, the Talmud (Sanhedrin 56b), by way of exegesis, derives the Seven Noahide Laws from the pasuk (Genesis 2:16), “Va’yetzav Hashem Elokim al ha’adam lemor, ‘Mikol etz hagan achol tochel’” – And the L-rd G-d commanded man, saying, “Of every tree of the garden you may freely eat.” In its detailed commentary on that verse, Torah Temimah notes that the last of the Noahide Laws, ever min hachai, namely, not to tear off a limb from a living creature, could not have been included, since eating the flesh of fish, fowl, and other animals was not permitted to Adam. That permission was granted to the sons of Noah after the Flood. But, the commentary continues, many things known through transmitted tradition – in the case of the Noahide Laws, these were basic laws without which society could not exist – were attached to specific Biblical verses by way of asmachta (lit. support) by the Sages so that such orally transmitted laws would be remembered. The fact that a halacha is derived from a Biblical verse does not by itself constitute proof that it is a Biblical law (de’Oraita) even in cases where a pasuk supports it.
Then there is a different category of halachot that are purely Rabbinical, as they are not based on any Biblical source. These are referred to as “takanot Rabbanan,” that is, Rabbinical enactments. A prime example of such a Rabbinic law is the enactment of eruvei chatzerot, literally, the joining of courtyards, which was instituted by King Solomon (and his beit din), as noted in Tractate Eruvin (21b). The Torah prohibits carrying on the Sabbath between private and public domains, but not between separate private domains, as stated (Shemot 16:29), “Al yetzei ish mimkomo bayom ha’shevi’i” – Let no man leave his place (i.e., domain) on the seventh day [of the week]. Rashi (Eruvin ad loc.) notes that as a safeguard for the Biblical law that prohibits carrying between a private and a public domain, King Solomon instituted this enactment. Indeed, the device of “joining courtyards” serves as a reminder that carrying on the Sabbath is subject to Biblical limitations, but the enactment itself is Rabbinical and should not be confused with a mitzvah d’Oraita. (Let us point out here that we are not dealing with the punishment incurred for transgression of Biblical and Rabbinical laws, but only with the laws’ origins.)
We see from all of the above that the Talmud serves as the key for the interpretation of the Scriptural precepts. It is the Talmudic discussions that provide us with the means for the practical performance of the mitzvot, justifying the term “halacha,” which (as stated in Sefer He’Aruch) means “way” and “order” of Jewish behavior.
With the passage of time, the need arose for further elaboration of the recorded laws and traditions, and early decisors such as Rambam and the Tur, followed by R. Yosef Caro (author of the Shulchan Aruch) and Rema, compiled the halachic decisions of the Talmud.
There are differences of opinion in some matters among these “trailblazers,” later taken up by their “nosei kelim” (lit. arm bearers), the commentators on those texts. Sometimes a consensus was reached by following the rule of the majority, a principle that is also the basis for many of the conclusions reached in the Talmud. Generally, however, the halachic rulings of the Beit Yosef (R. Yosef Caro, so known because of his commentary of the same name on the Arba Turim of the Tur, which preceded his own Shulchan Aruch) became the basis for the practices of the Sephardic, or Mediterranean and Oriental, Jewish communities. The Rema (Rabbi Moshe Isserles), the main commentator and at times disputant of Rabbi Yosef Caro, became the source for the practices of Ashkenazic Jewry (the northern and eastern European communities).
We would be remiss if we did not mention some commentaries providing halachic rulings that were parallel or even earlier in time: Kesef Mishneh and Beit Yosef – Rabbi Yosef Caro’s commentary on Rambam and the Tur, respectively; Ra’avad – Rabbi Abraham b. David of Posquieres; Bayit Chadash – Rabbi Yoel Sirkis’ commentary on the Tur; Darchei Moshe – the Rema’s commentary on the Tur; Taz or Turei Zahav – the commentary of Rabbi David Halevi of Lvov on the Shulchan Aruch and the Rema; Magen Avraham – the commentary of Rabbi Avraham Abele Gombiner (of Gombin, later of Kalisz) on the Shulchan Aruch and the Rema, to cite but the most important ones. Later editions of the Shulchan Aruch also feature such well-known names as the Vilna Gaon, Rabbi Akiva Eiger, the Chatam Sofer, and Rabbi Shlomo Kluger.
Further compilations of halachot following the structure of the Shulchan Aruch added several great names to that illustrious list: Shulchan Aruch HaRav by Rabbi Shneur Zalman of Liady (the author of the Tanya who is also known as the Admor HaZaken); Aruch HaShulchan by Rabbi Yechiel Michel Epstein Halevi; and Mishna Berurah (on Orach Chayyim) by Rabbi Yisrael Meir Kagan of Radin, better known as the author of Chofetz Chaim.
The names mentioned here represent only a small part of the vast Torah scholarship that has continued to develop over the centuries. Luminaries who have graced us in more recent times include the geonim Rabbi Eliyahu Henkin and Rabbi Moshe Feinstein, Rabbi Ovadiah Yosef, as well as countless others whose published halachic decisions extend the chain to the present.
In fact, every time a G-d-fearing Jew asks a question pertaining to halacha and receives a learned response, this tradition is carried on – halacha is being created before our very eyes.
A case in point is the work of a Torah Sage that we already mentioned. It is stated in Vayikra 19:16, “Lo telech rachil be’amecha” – You shall not be a bearer of tales among your people, a precept that we understand to refer to lashon hara. The sainted Chofetz Chaim earned his name and his renown by codifying all the existing sources of this prohibitory mitzvah, thus strengthening a precept that he rightly saw as being poorly observed in his time. He is not known primarily for his important halachic work, the Mishnah Berurah, but rather for his delving into and retrieving from the vast treasure of laws and traditions all that is known about a single but relatively not very highly regarded prohibitory mitzvah.
The greatness of Orthodox Jewry resides in the fact that all its halachic teachings and decisions are based on the ongoing scholarship of rabbis and talmidei chachamim who understand halacha as it applies to our daily lives. Most importantly, if they do not know the answer to a question that is asked, they refer to those who know more than they do.
There is no limit to the learning of Torah. It continues unabated, as stated in the Baraitha we quoted at the beginning of this column last week, which is also the concluding segment of Ein K’elokeinu: “Kol hashoneh halachot bechol yom muvtach lo shehu ben Olam Haba, shene’emar, ‘Halichot olam lo’; al tikrei ‘halichot’ ela ‘halachot’” – It was taught in Tanna Devei Eliahu that whoever learns halachot every day is assured that he is destined for the World to Come, as it says (Chabakuk 3:6), “His ways are to eternity.” Do not read “halichot” (ways) but rather “halachot” (laws).