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Oral Law

The Christian Fence

What makes the Christian rejection of the Oral Law is that they themselves keep an oral law; in fact, they implicitly keep the Jewish oral law as well; and explicitly in every place where it is required in order to keep a written commandment. For example;

  • 1 Thessalonians 5:22 “Abstain from every form of Evil.”

What is the Oral Law?

A Law Given to Moses at Mt. Sinai

A Law given to Moses at Sinai (Hebrew Halakhah le-Moshe mi-Sinai הלכה למשה מסיני) refers to a halakhic law for which there is no biblical reference or source, but rather was passed down orally as a teaching originating from Moses at Sinai. Such teachings have not been derived from any Talmudical hermeneutics, but known solely from the Jewish tradition.

According to Rabbinic Judaism, God transmitted the Torah to Moses in two parts: the written Torah which comprises the Biblical books of Genesis through Deuteronomy, and the Oral Torah which was relayed orally, from Moses to his successors, to their successors, and finally to the rabbis.

Not Always from Sinai

In rabbinic discourse, a “law given to Moses at Sinai” refers to a law which has no source in the written Torah, and thus must have been transmitted orally since the time of Moses. These laws are nonetheless considered by the Talmud to have the force and gravity of Biblical law as if they are written explicitly in the Torah.

In a few cases, however, later commentaries say that the law in question is “not literally” (לאו דווקא) from Sinai. According to some, even a rabbinic law may be called “from Sinai” if it is “as clear as a law from Sinai”. R' Reuvein Margolies suggested that any law created by the Sanhedrin could be termed “from Sinai”, since the institution of the Sanhedrin has its origins at Sinai.

In those oral teachings delivered by Moses unto Israel at Sinai, the rabbis have said that their underlying motives cannot be properly divulged through study, nor is it permissible to raise an objection against them by way of one of the hermeneutical principles applied in study.

A differentiation is ultimately made, then, between rabbinic tradition and some laws which were given to Moses at Sinai.

Torah vs. Torahs

Exodus 12:49 reads, famously, “You shall have one Torah for the one who is native born, and for the stranger who dwells among you.” The upshot is clear: the Jewish people, along with noncitizens who are present in their society, are to be organized around a single, egalitarian legal system. The experience of Mount Sinai was not only one of theophany (divine encounter), though it was that, but also of a revelation that continues through law. The experience of the biblical Israelite was one in which God’s presence was meant to be felt primarily through performing certain actions and refraining from others: God’s will is mediated and met through mitzvot. This experience is further emphasized by rabbinic Judaism, as the Talmud states, “R. Hiyya, the son of Ami, said in Ulla’s name: ‘From the day that the Temple was destroyed, the blessed Holy One has nothing in this world, except for the four cubits of the halakhah’” (BT Berakhot 8a). The Torah is singular; there is to be one singular Torah for the one singular God’s one singular People.

So, there's one torah. But,

Our Rabbis taught: A certain gentile once came before Shammai and asked him, “How many Torahs do you have?” “Two,” he replied: “the Written Torah and the Oral Torah.” “I believe you with respect to the Written, but not with respect to the Oral Torah; convert me on condition that you teach me only the Written Torah!” Shammai] scolded and repulsed him in anger.

[The gentile] went before Hillel [and went through the same dialogue.] Hillel converted him. On the first day, [Hillel] taught him Alef, bet, gimmel, dalet; the following day, he reversed [their order] to him. [The convert] protested, “Yesterday you did not teach them to me this way!” “Aren’t you relying on me? Then rely upon me with respect to the Oral [Torah], as well!”BT Shabbat 31a

There is a certain need to rely on some cultural things such as the order of letters in the alphabet, or the meaningful keeping of traditions given at the time of their giving such as [Exodus 12:2] “This month shall mark for you the beginning of the months”. These are in fact meaningful traditions without which the written words of the Torah cannot be kept. Therefore the Oral Law must be accepted at least in every place where it is required to keep the written law, for no other authorized tradition exists to keep it – none of the prophets or angels who visited Israel, not least among them the story of Gabriel and Daniel – had ever contradicted the need for such an Oral Law.

In fact, the torah does expicitly mention not just the need for an oral law but the giving of an oral law:

R. Akiva said: “Did Israel have only two Torahs? Were not many Torahs given to them? [For example:]‘This is the Torah of the Olah’, ‘This is the Torah of the Minḥah’, This is the Torah of the Asham’, ‘This is the Torah of the Shelamim.’, and ‘This is the Torah concerning when a person dies in a tent’, ‘which the Lord set forth between God and the children of Israel’ (Lev. 26:46). Moses merited to become the messenger between Israel and their heavenly Parent, on Mount Sinai by the hand of Moses’ (ibid.). We are taught here that the [entire] Torah—its halakhot, inferences, and interpretations—was given by Moses at Sinai.”Sifra Beḥukotai, par. 2, ch. 8:

Now it can be understood in passages such as Leviticus 26:46 when said such as: tō-w-rōṯ,

These are the statutes and laws that the Lord made between himself and the people of Israel through Moses on Mount Sinai.

The Sanhedrin

Before 191 BCE the High Priest acted as the ex officio head of the Sanhedrin, but in 191 BCE, when the Sanhedrin lost confidence in the High Priest, the office of Nasi was created. The Sanhedrin was headed by the chief scholars of the great Talmudic Academies in the Land of Israel, and with the decline of the Sanhedrin, their spiritual and legal authority was generally accepted, the institution itself being supported by voluntary contributions by Jews throughout the ancient world. Being a member of the house of Hillel and thus a descendant of King David, the Patriarch, known in Hebrew as the Nasi (prince), enjoyed almost royal authority. Their functions were political rather than religious, though their influence was not limited to the secular realm. The Patriarchate attained its zenith under Judah ha-Nasi who compiled the Mishnah, a compendium of views from Judean thought leaders of Judaism other than the Torah.

When then was the sanhedrin created? It was created within the office of levitical priest as implied by the above:

8 “If any case arises requiring decision between one kind of homicide and another, one kind of legal right and another, or one kind of assault and another, any case within your towns that is too difficult for you, then you shall arise and go up to the place that the Lord your God will choose.

9 And you shall come to the Levitical priests and to the judge who is in office in those days, and you shall consult them, and they shall declare to you the decision.

10 Then you shall do according to what they declare to you from that place that the Lord will choose. And you shall be careful to do according to all that they direct you.

11 According to the instructions that they give you, and according to the decision which they pronounce to you, you shall do. You shall not turn aside from the verdict that they declare to you, either to the right hand or to the left.

12 The man who acts presumptuously by not obeying the priest who stands to minister there before the Lord your God, or the judge, that man shall die. So you shall purge the evil from Israel.

13 And all the people shall hear and fear and not act presumptuously again.Deuteronomy 17:8-13 (ESV)

The Jewish Fence

Is the Oral Law Binding? Yes.

On Leviticus 18:30: You shall safeguard my charge not to do…“, Rashi writes, “You shall keep, or watch over, my charge. This is intended to caution the court regarding this (Sifra, Acharei Mot, Chapter 13 22). Additionally, (that you never do it, or) 'And if you define not yourselves therein, I am the Lord your God” … If, however, you do defile yourselves I shall no longer be your God (אלהיכם) since you have cut yourselves off from following after Me. What use then can I have of you? Consequently you deserve annihilation! That is why Scripture states: I am the Lord your God (Sifra, Acharei Mot, Chapter 13 22).”

This means that it should never be done, even accidentally! What principle can we imagine from this? Let us not say we invented it, but let us draw it from the Torah. The actual name for this practice, 'fence', comes from the following verse:

  • Deu 22:8
    • When you build a new house, you shall make a fence for your roof, that you may not bring the guilt of blood upon your house, if anyone should fall from it.

Thus, there is a principle that to avoid the guild of committing an accidental sin, one must take an extra stringency of “building a fence”. Definately, don't build too close to the edge of safety, but instead go the other way and extra precautions.

Questioning this conclusion

Nachmanides (1194 – c. 1270) questions this practice of parapets: How is it possible the rabbis can make fences to the Torah (cf. Deu 4:2)? The Torah makes a list of prohibited incestuous relations; the rabbis add a few. The Torah prohibits work on Shabbat; the rabbis say, “If it has no use on Shabbat, don't even handle it!” The same with the kosher laws and many other prohibitions. And as time goes on, more fences are added. Is this not the same as “Thou shall not eat of it, neither shall thou touch it”?

So Nachmanides points out that these fences are very good and necessary, “…as long as we all know that this is a fence, and not directly from G‑d in His Torah.”

They're not directly from the Torah, but they are Torah nevertheless—because the Torah itself commands us to build fences around its prohibitions when they are necessary. It says, “Keep the Children of Israel away from impurity!” (Lev 15:31) It says, “Guard My guardings!”4 Which means, that if the spiritual leadership sees that their generation has greater temptation than earlier generations—or simply cannot be as careful as before—it's time to add some warnings to hold them further at bay.

  • Deu 4:2
    • You shall not add to the word that I command you, nor take from it, that you may keep the commandments of the Lord your God that I command you.
  • Lev 15:31
    • Thus you shall keep the people of Israel separate from their uncleanness, lest they die in their uncleanness by defiling my tabernacle that is in their midst.

In fact we see that not knowing the difference between a fence and the law is in fact part of the problem Eve had in the Garden!

What's a law, anyways?

Mitzvahs are not for the sake of anything else; they are the prime reasons for everything else. All reason starts here and all reason stops here. True, there are some mitzvahs that the Torah provides a reason for, and many others for which we have found a reason—whether a simple, practical one (stealing is no good because society can't work that way) or a mystical one (mixing linen and wool messes up the supernal sefirot). But all of these are post-facto—G‑d built His world around these mitzvahs, and so of course they seem reasonable once you understand how the system works. But the real protocol is: first came the mitzvahs, then came the system and its reasoning.

The beauty of this is that it provides us a much deeper connection. If the mitzvahs would be for a reason, we would only have G‑d's reasoning. And since G‑d is way beyond reason, we wouldn't really have Him. He would be into those mitzvahs only as badly as He needed the reason—which, considering that He is G‑d, wouldn't be very much. But since the mitzvahs are just His raw will, unadulterated and spring-sparkling pure, with each mitzvah we do—or prohibition we keep—in each mitzvah and in each prohibition we have G‑d in His very essence.

So here's Eve hearing G‑d say, “Don't eat from the tree. If you do, on that day you will die.” And she figures, “Must be a real bad tree. A killer tree. If eating from it kills, touching it could be pretty bad, too.”

Eve applied her human logic to G‑d's will. That's what she says to the snake, “We mustn't eat it or touch it lest we die…”–implying that the whole reason for not eating it was in order not to die. It really had nothing to do with G‑d, other than the fact that He was the one who warned them about it. Even before her conversation, she had already lost G‑d in her cleverness, and so now she bought into a clever snake.

37 The Lord said to Moses, 38 “Speak to the people of Israel, and tell them to make tassels on the corners of their garments throughout their generations, and to put a cord of blue on the tassel of each corner. 39 And it shall be a tassel for you to look at and remember all the commandments of the Lord, to do them, not to follow[e] after your own heart and your own eyes, which you are inclined to whore after. 40 So you shall remember and do all my commandments, and be holy to your God. 41 I am the Lord your God, who brought you out of the land of Egypt to be your God: I am the Lord your God.”Numbers 15:37-41 (ESV)


Thus, according to Pirkei Avot (1:1), the Men of the Great Assembly commissioned their dis­ciples to “build a fence around the Torah.” and thus it is as it is today.

The five books of Moses do not refer to a single document known as “the Torah” in this sense, within itself. The idea of such a document is mistaken because the English Bible mistakenly translated “towrot” (laws) as “Law” throughout the five books of Moses. Additionally, it is a tragic admission of history that we tend to approach the “Torah” as a dry written document and not as a living document which describes something which actually happened. This is why the sages say that those who consider the Torah a history book are damned. It is not a statement that we cannot rely on the Torah for historical knowledge – it is a statement that the adoption of Hellenistic philosophy over biblical religious thought causes us to deal with these issues as if they were hypothetical instead of as if they had actually happened. Instead, as we see, the laws given at Sinai did not just include those which were explicitly written down in the Torah, but any law which required a tradition to be established in order for it to be kept. These traditions, alongside the commandment to establish as Sanhedrin within the Levitical Priesthood, became the “Oral Law.” Thus the Oral Law, without question, is granted and endorsed by the Holy Scriptures.

"The Oral Law" by Gil Student

© 2001 Gil Student

  The existence of an oral law that was given to Moses at Mt. Sinai is a fundamental concept in Judaism.  However, the lack of a clear reference to an oral law in the biblical text has led some to deny its existence.  In response to these deniers, a literature has developed to try to prove the existence of an oral law.

Theoretical Proofs

1. R. Yosef Albo [Sefer HaIkkarim, 3:23] offers the following philosophical proof for the existence of an oral law. R. Albo states that a perfect text must, by definition, be totally unambiguous and not require any additional information to be understood. Since the Torah is called perfect [Psalms 19:8], the Torah must not have any ambiguities. However, it does have ambiguities. For example, the verse [Deut. 6:4] “Hear O Israel! The L-rd is our G-d, the L-rd is one” is understood by Jews to imply absolute monotheism while it is understood by Christians to imply a trinity. How can a perfect Torah contain ambiguity? Only if the Torah includes an oral explanation that clarifies all ambiguities can it be called perfect [cf. Maimonides, Moreh Nevuchim, 1:71]. Therefore, R. Albo states, there must have been an oral tradition transmitted along with the written Torah.

2. R. Yehudah HaLevi [Kuzari, 3:35] states simply that it is impossible to read and understand the words of the bible without a tradition regarding the vowelization and punctuation of the words. A simple reading of the text requires an oral tradition [cf. R. Avraham Ibn Daud, Commentary to Torat Cohanim, Baraita DeRabbi Yishmael sv. R. Yishmael]. Since the only existing tradition regarding the text includes a tradition about the concepts and laws, one who accepts the vowelization and punctuation must also accept the oral law. It is inconsistent to accept the oral tradition only partially [cf. R. Shimon ben Tzemach Duran (Rashbatz), Magen Avot Hachelek Haphilosophi, 2:3 p. 30b; R. Shlomo ben Shimon Duran (Rashbash), Milchemet Mitzvah, First Introduction].

Textual Proofs

3. R. HaLevi further asks what the Torah means when it says [Exodus 12:2] “This month shall mark for you the beginning of the months”? To which months is this referring? Is it referring to Egyptian months (where the Jews were living at the time) or Chaldean months (from where their patriarch Abraham originated)? Solar months or lunar months? Without an oral tradition, there is no way to know to what this verse is referring [cf. R. Avraham Ibn Ezra, Commentary, Lev. 25:9; Rashbatz, ibid. This, by the way, seems to alleviate the issue of counting January as the first month. Since the verse is referring to lunar months, there is no prohibition to count January as the first solar month.].

4. Also, R. HaLevi asks, what does the Torah mean when it says that animals are permitted to be eaten after slaughter [Deut. 12:21]? Does that mean any kind of killing or only through slitting the animal's neck? [Cf. Rashbatz, ibid.]

5. Furthermore, when the Torah [Lev. 3:17] says “It is a law for all time throughout the ages, in all your settlements: you must not eat any fat or any blood”, what exactly is fat? Are there different types of animal fat, some which are permitted and some which are forbidden? How are these fats differentiated? [Kuzari, ibid; Rashbatz, ibid.]

6. Also, when the Torah forbids certain birds [Lev. 11:13-19], does that mean that all other birds are permitted? Or are there sign for birds like there are for animals [Lev. 11:2-8]? [Kuzari, ibid; Rashbatz, ibid.] How can anyone know whether biblical law permits or forbids eating ducks, geese, and turkeys [Kuzari, ibid]?

7. When the Torah [Ex. 16:29] says “Let no man leave his place on the seventh day” to what place is this referring? Does it mean his home, his property if he has more than one home, his neighborhood, his city, or something else [Kuzari, ibid; Rashbatz, ibid.]? In fact, Isaiah [66:23] says “It shall be that at every New Moon and on every sabbath all mankind will come to bow down before Me - said the L-rd” which implies that people will leave their homes on the sabbath and go to worship the L-rd [Rashbatz, ibid., 31a]. Evidently, Isaiah did not understand this verse in Exodus as the simple reading would have it.

8. What does the Torah mean when it [Ex. 20:10] forbids “work” on the sabbath? What work is forbidden and what is not? [Kuzari, ibid; Rashbatz, ibid., 30b; Rashbash, ibid.] Without an oral explanation of the details of this forbidden work, it is impossible to know what the Torah means.

9. The sections of Exodus [ch. 21] and Deuteronomy [ch. 21-25] that deal with monetary and physical crimes do not seem to contain enough information to formulate a working legal system. How can a court legislate with so few guidelines? Certainly, for courts to function based on biblical law there must have been more information given in the form of an oral law [Kuzari, ibid; Rashbatz, ibid.].

10. The laws of inheritance as stated in Numbers [27:8-11] cannot begin to address all of the many complicated situations that can and have arisen throughout the generations. Without an oral law, how does a society apply the biblical inheritance laws [Kuzari, ibid; Rashbatz, ibid.]?

11. How does one fulfill the biblical commandments of circumcision [Gen. 17:10-14], fringes [Num. 15:38-39], and booths [Lev. 23:42]? There is not enough detail in the biblical directive to know how to fulfill these commandments properly. What are fringes? What is a booth? How much and where must be cut off in circumcision? The biblical text is too silent to enable following these commandments unless there was an oral explanation [Kuzari, ibid; Rashbatz, ibid.].

12. A baby must be circumcised on the eighth day [Gen. 17:12]. What if the eighth day falls out on the sabbath? Can a circumcision take place on a sabbath or is that considered work? The Passover sacrifice must be brought by every Jew [Ex. 12:47] on the day before Passover [Num. 9:5]. What happens if that day falls out on the sabbath? Surely, slaughtering and offering a sacrifice is work. Which takes precedence – the sabbath or the paschal sacrifice? There must be an oral law to explain this if these laws were intended to be put into practice [Kuzari, ibid; Rashbatz, ibid.].

Implicit Proofs

13. R. Shimon ben Tzemach Duran points out that the Torah tells us that Jethro advised Moses to appoint judges. Jethro then told Moses [Ex. 18:20] “Enjoin upon them the laws and the teachings, and make known to them the way they are to go and the practices they are to follow.” What does that mean? If the written law is all that was given, then there is nothing more for Moses to instruct these judges. What is Moses supposed to tell them, if not the oral law [Rashbatz, ibid.]?

14. R. Duran also notes the following biblical passage.

If a matter of judgement is hidden from you, between blood and blood, between verdict and verdict, between plague and plague, matters of dispute in your cities – you shall rise up and ascend to the place that the L-rd, your G-d, shall choose. You shall come to the priests, the Levites, and to the judge who will be in those days; you shall inquire and they will tell you the word of judgement. You shall do according to the word that they will tell you, from the place that G-d will choose, and you shall be careful to do according to everything that they will teach you. According to the teaching that they will teach you and according to the judgement that they will say to you, shall you do; you shall not deviate from the word that they will tell you, right or left.Deut. 17:8-11

What possible knowledge is there that can be hidden? If there is no oral law, then the only basis for judgement is in the Torah which is open for anyone to study. Clearly, the entire need for the above process of going to the central court and following their ruling implies that there is an oral tradition which also serves as the basis for judgement [Rashbatz, ibid.; Rashbash, ibid.].

15. R. Yehudah HaLevi points out that Daniel [Dan. 6:11] risked his life to pray. However, nowhere in the written Torah do we see a commandment to pray [Kuzari, ibid.; Rashbash, ibid.]. While there is argument regarding the source of the obligation to pray [cf. Maimonides, Sefer Hamitzvot, positive commandment 5; Nahmanides, ad. loc.] and whether there is an obligation to risk martyrdom for prayer [cf. R. Nissim ben Reuven, Commentary to Rif, Shabbat 22b sv. Umakshu] , the question remains – how did Daniel know whether or not to offer his life for this commandment? Without an oral law to explain the details of martyrdom, there is no way of determining when and where to become a martyr and when not to.

Proofs Through Contradiction

16. R. Duran notes that after King Solomon had the Temple built, he sanctified the interior of the courtyard by personally offering sacrifices [1 Kings 8:64]. How could Solomon offer these sacrifices in the Temple when every indication in the Torah is that only priests may offer sacrifices? From where did Solomon know that a non-priestly king can offer a sacrifice to sanctify the Temple if not from an oral law? It certainly is nowhere in the written law [Rashbatz, ibid.].

17. Similarly, R. Duran points out that Elijah offered a sacrifice on Mt. Carmel [1 Kings 18:3-38]. However, the Torah forbids bringing sacrifices outside of the Temple [Deut. 12:13-14]. From where did Elijah receive permission to violate this prohibition unless he knew from an oral law that in his case it was permitted [Rashbatz, ibid.]?

18. Consider the following passage.

There was also a man prophesying in the name of the L-rd, Uriah son of Shemaiah from Kiriath-Jearim, who prophesied against this city and this land the same things as Jeremiah. King Jehoiakim and all his warriors and all the officials heard about his address, and the king wanted to put him to death. Uriah heard of this and fled in fear, and came to Egypt.Jeremiah 26:20-21

Uriah was scared for his life so he fled to Egypt. However, the Torah says in three separate places [Ex. 14:13; Deut. 17:16, 28:68] that it is forbidden for a Jew to return to Egypt. How did Uriah know that his action was permitted? Even to save his life, how did he know that it is permissible to violate a biblical commandment to save his life if not through an oral tradition [Rashbatz, ibid.]?

19. When the Jews returned to Jerusalem with permission from the Persian government to rebuild the Temple, Haggai tested the priests on their knowledge of the laws of purity. He asked them the following two questions [Haggai 2:12-13]: “If a man is carrying a sacrificial flesh in a fold of his garment, and with that fold touches bread, stew, wine, oil, or any other food, will the latter become holy?… If someone defiled by a corpse touches any of these, will it be defiled?” The answers to these two questions are not in the Torah. How were the priests to know the answers if not from an oral tradition [Rashbatz, ibid.]?

Why Did G-d Give An Oral Torah?

Now that it has been established that there is an oral tradition regarding the law, the question remains why G-d intentionally gave the Torah in two parts – a written part and an oral part.

20. As we said above (1), any written book is subject to ambiguity [Maimonides, Moreh Nevuchim, 1:71]. Since that is the case, had G-d only given us a written Torah, its interpretation would have been debated due to vagueness. Therefore, G-d also gave a tradition that would be taught orally from teacher to student so that the teacher could clarify any ambiguities [Rashi, Eiruvin, 21b sv. Veyoter; R. Yosef Albo, Sefer HaIkkarim, 3:23]. R. Yair Bachrach [Responsa Chavat Yair, 192] and R. Ya'akov Tzvi Mecklenburg [Haketav Vehakabalah, vol. 1 p. viii] dispute this argument and claim that since G-d is omnipotent, He could have created a totally unambiguous book. However, it seems to this author that the original argument was assuming that any written book is, by definition, ambiguous. It is a logical impossibility to have a completely unambiguous book. In fact, the example that R. Bachrach offers of an unambiguous book is Maimonides' Mishneh Torah which, despite its clarity and brilliance, has dozens if not hundreds of commentaries that try to clarify its ambiguities.

21. It is also suggested that the entire corpus of law that governs every possible case that could arise would be endless and would certainly not fit in one or even five books. The Talmud itself has over 2,700 double-sided pages. To put all of this detail into the bible would have made it a very cumbersome book that, inevitably, would have left out details that cover a future case [Sefer HaIkkarim, ibid.; R. Yehudah Loewe, Gur Aryeh, Ex. 34:27].

oral_law.txt · Last modified: 2021/04/20 14:01 by appledog