Shiur #42: The Written Law and the Oral Law

  • Harav Baruch Gigi
Jeffrey Paul Friedman
August 15, 1968 – July 29, 2012
יהודה פנחס בן הרב שרגא פייוועל
כ"ב אב תשכ"ח – י' אב תשע"ב
            The Gemara in Gittin states:
Rabbi Yehuda bar Nachmani, the public orator of Rabbi Shimon ben Lakish, expounded as follows: It says: "Write yourself these words" (Shemot 34:27); and it says: "For according to the mouth (al pi) of these words" (ibid.). How so? This means: The words which are written – you are not at liberty to say by heart, and the words transmitted orally – you are not at liberty to recite from writing. A Tanna of the school of Rabbi Yishmael taught: [It is written] "These" (ibid.) - these you may write, but you may not write halakhot. Rabbi Yochanan said: God made a covenant with Israel only for the sake of that which was transmitted orally, as it is stated: "For by the mouth of these words I have made a covenant with you and with Israel." (Gittin 60b)
These Amoraim distinguish between words of Torah that are written and words of Torah that are transmitted orally; the Written Law and the Oral Law. The Gemara indicates that care must be taken to preserve the unique character of each part of the Law: That which is fit to be written must be written, and that which is fit to be transmitted orally must be transmitted orally. At the end of the passage, Rabbi Yochanan goes as far as to define the Oral Law as the focal point of the covenant between God and His people Israel.

I. The Two Parts of the Oral Law According to the Rambam

            The Rambam discusses the centrality of the Oral Law in two places: In the introduction to his commentary to the Mishna and in Hilkhot Mamrim in Sefer Shofetim.[1] Briefly summarizing his definition, we come to the following understanding: The Oral Law has two main parts – it includes the laws and halakhot derived from the written verses, and it also includes another system of halakhot – decrees, enactments and customary practices – which the Sages legislated according to the needs of the time and place.
It is clear from this that the first category is directly and substantively connected to the Written Law. But even the second category is part of the Oral Law. According to the Rambam, all of its parts, even the customary practices instituted by the Sages, are included in the Torah which is binding upon us, based on the verse: "And you shall do according to all that they shall instruct you" (Devarim 17:10). Even this area is included in the prohibition of: "You shall not deviate from any of the statements they relate to you" (Devarim 17:11).
This is what the Rambam writes at the beginning of Hilkhot Mamrim:
We are obligated to heed their words whether they:
a) Learned them from the Oral Tradition, i.e., the Oral Law,
b) Derived them on the basis of their own knowledge through one of the attributes of Biblical exegesis and it appeared to them that this is the correct interpretation of the matter,
c) Instituted the matter as a safeguard for the Torah, as was necessary at a specific time. These are the decrees, edicts, and customs instituted by the Sages.
It is a positive commandment to heed the court with regard to each of these three matters. A person who transgresses any of these types of directives transgresses a negative commandment. This is derived from the rest of the verse quoted above, explained in the following manner: "According to the laws which they shall instruct you" - this refers to the edicts, decrees, and customs which they instruct humanity at large to observe, in order to strengthen the faith and perfect the world. "According to the judgment which they relate" - this refers to the matters which they derive through logical analysis employing one of the methods of Biblical exegesis. "From all things that they will tell you" - this refers to the tradition which they received one from another.
It should be noted that the words, "the laws which they shall instruct you," refer to the second category mentioned above: decrees, enactments and customary practices.
To sum it up briefly, the Torah of man is also Torah.
Rabbi Zadok HaKohen of Lublin writes in his book, Tzidkat ha-Tzadik, as follows:
The entire edifice of one's study should be based on the verses that God commanded, and it should be present before his eyes, that this is what he is discussing in connection with what God commanded in His Torah. There is an allusion to this at the beginning of the Mishna, which opens with: "From when [can one read the evening Shema]," and the Tanna bases himself on a verse, as is explained in the Gemara (Berakhot 2a). This teaches that all of one's study should be based on  verses, and not be like the study of one of the sciences. It seems to me that I also heard this [from my teacher]. (Tzidkat ha-Tzadik 10)
            Rabbi Tzadok presents the foundations of the Torah study of every member of Israel. According to him, the foundation is the connection to the verses, to the Written Law. In this way, he explains the fact that Rabbi Yehuda Ha-Nasi opened the most fundamental work of the Oral Law, the Mishna, with tractate Berakhot which opens with the laws of Shema. As the Babylonian Talmud emphasizes (Berakhot 2a), "the Tanna bases himself on a verse." That is to say, the Tanna who opens the Mishna begins with the verse which establishes the mitzva of reciting the Shema, and in its wake he establishes the times for reciting the Shema. This introduction to the Oral Law in the Mishna and in the Gemara represents and symbolizes all of the foundations of the Oral Law, which are built on the foundations of the Written Law.
            This connection between the Oral Law and the Written Law emphasizes the student’s connection to "the verses that God commanded, and this should be present before his eyes." The Written Law is the word of God, and one who studies it connects and binds himself, as it were, to God Himself, as He and His Torah are one. One who studies the Oral Law must bind his study to the Written Law, so that God should be present before His eyes in all his studies.
            It is self-evident that according to this approach, in a person's very occupation with passages that clarify the mitzvot of the Written Law, he establishes a connection to God's commandments and His words to us in His Torah. This way a person connects directly to God, the Giver of the Torah.
            It stands to reason that this is the idea that underlies the blessing that we recite before we begin to study, Birkat ha-Torah:
… Who has chosen us from among all the nations, and has given us His Torah. Blessed are You, O Lord, the Giver of the Torah. (Birkat ha-Torah)

III. The Passages That Don't Concern the Clarification of the Mitzvot

In contrast to these passages which clarify the mitzvot of the Written Law, there are other passages that are not directly concerned with clarifying the Torah's mitzvot. Passages such as the laws of neighbors at the beginning of tractate Bava Batra or passages that deal with presumptive ownership of property are based mainly on the Sages' assessment of the proper way to organize relations between neighbors so that they may live in peace and harmony, or their assessment concerning the practicality of saving deeds and at what point living on a certain property constitutes proof of ownership of that property.
These matters seem to be only weakly connected to God's word in His Torah, as they do not concern the clarification of the Torah's mitzvot.
This might be the reason that the Rishonim thought it important to also connect these passages to God's word in the Written Law. Some Rishonim connect these passages to the mitzva of "loving your neighbor as yourself," or the mitzva of "doing what is upright and good," or "not putting a stumbling block before the blind," or the like. For example, Rabbeinu Meir HaLevi writes about damages that stem from the laws of neighbors as follows:
It is forbidden to do something that will cause damage to another person, either because of "You shall not put a stumbling block before the blind" or because of "You shall love your neighbor as yourself. (Yad Rama, Bava Batra 25b)
In his words that we saw earlier, Rabbi Tzadok emphasized that the essence of Torah study involves the creation of a connection with the word of God. Therefore, a person must set the connection to the Written Law before his eyes in all of his studies.
 Rabbi Tzadok added: "Not like the study of one of the sciences." Here he alludes to what Chazal say in Midrash Eikha Rabba:
"Her king and her princes are among the nations, Torah is no more" (Eikha 2:9). If a person says to you: There is wisdom among the nations, believe him. This is what is written: "Shall I not destroy the wise men of Edom, and discernment out of the mount of Esav" (Ovadya 1:8). [If he says to you:] There is Torah among the nations, do not believe him, as it is written: "Her king and her princes are among the nations, Torah is no more." (Eikha Rabba 2)
            This is particularly striking with regard to the Oral Law, the essence of which lies in human understanding and rational tools of analysis. With regard to the Oral Law, concerning which man activates and concentrates his wisdom and understanding, the danger arises that he will see his study as mere wisdom, no different than the wisdom studied by the gentiles.
            Therefore, it is incumbent upon a person to internalize the idea that Torah reasoning is not human reasoning, but rather it draws its illumination from the word of God in His Torah. That same word of God illuminates the world with the light of God's Torah that spreads throughout earthly reality.
Regarding Purim, when we accepted the light of the Oral Law with full freedom and without any compulsion, it says:
The Jews had light and gladness, and joy and honor. (Esther 8:16)
The Sages explained that "light means Torah" (Megila 16b). Man's understanding and intellect are illuminated by the light of God. The Torah, the Torah of man, which is "your wisdom and you understanding in the sight of the peoples" (Devarim 4:6), is the revelation of God's wisdom through the tools of human intellect.

IV. From the Written Law to the Oral Law

            In his book, The Way of God, Rav Moshe Chayyim Luzzatto (Ramchal) discusses the value and importance of Torah study. He spells out the development of the Written Law and the Oral law:
God granted us one particular tool which can bring man closer to God than anything else. This is the study of His revealed Torah. Such study accomplishes this in two ways: First through the reading of the Torah, and then through its comprehension. In His love, God composed a volume of words decreed by His wisdom and bestowed it upon us. This is the Bible, comprised of the Torah and the later works of the Prophets.
These words have the unique property of causing those who read them to incorporate in themselves the highest excellence and greatest perfection. [The only condition is that they be read] with holiness and purity, with the proper intent of fulfilling God's will.
Similarly, when one strives to understand these works, either through his own intellect or through the explanations provided in the commentaries, he can reach even greater perfection, according to his effort. This is even truer when one attains a grasp of the secrets and mysteries contained in these works, since each mastered concept fixes and integrates a certain degree of the highest levels of excellence and perfection in his soul.
Through all these acts, man not only reaches excellence and perfection himself, but he also elevates and perfects the entire fabric of creation. This is particularly true in the case of Torah study. (Ramchal, The Way of God, I, 4)
The Ramchal distinguishes between two aspects of Torah study: One aspect involves reading, and the other involves understanding. In light of the rest of the passage, it would appear that these two aspects should be defined as follows: Reading means enunciating the words of the Torah with one's mouth, whereas understanding means knowing the meaning of the Written Law according to the received tradition.
Reading, as stated, refers to the verbal enunciation of the words of the Torah, as it is says in the book of Yehoshua (1:8): "You shall meditate therein day and night." This is the most basic level of Torah study. One who verbalizes the words of the Torah merits perfection and communion with God, simply by "grabbing hold" of the words of the Torah which is the word of God.
Therefore, the Ramchal emphasizes the gradation: the Torah itself is highest, and the books of the Prophets are at a lower level. When one studies the Written Law together with the Prophets and the Writings, he "grabs hold" of the word of God. What is emphasized here is the verbal enunciation and sounding of the words to the ear. From a certain perspective, we can speak of a physical connection between one who studies and meditates upon the Torah and the words of the Torah.
The second aspect is understanding, and it deals with knowing the interpretations of the Written Law as they were handed down to us from generation to generation. The key to this aspect of Torah study lies in the ability to understand and analyze the Oral Law. This Law draws upon the word of God and is fundamentally connected to the Written Law, but it also is developed using the tools of reason. In this way the connection to the Torah and the perfection that it achieves are intensified.
The highest level of the aspect of understanding in Torah study is attained by one who develops the ability to understand the mysteries and secrets of the Torah, which are hinted to in the verse: "The king has brought me into his chambers; we will be glad and rejoice in you" (Shir ha-Shirim 1:4). This is the ladder which the Ramchal sets up for us, in order to reach the ways of Torah and wisdom, and to achieve a connection with the Giver of the Torah.

V. The Written Law and the Oral Law According to Rav Kook

It is appropriate to conclude our discussion of the Ramchal's view of the relationship between the Written Law and the Oral Law with the illuminating words of Rav Kook, in the opening passage of Orot ha-Torah:
We receive the Written Law through the most elevated and comprehensive element in our souls. With it we feel the shining of the majesty of the all-encompassing living light of the entire universe. With it we soar above all logic and reason, we feel the supernal spirit of God hovering over us, touching and not touching, flying across our lives, above them, and illuminating them with its light. The light shines, glimmers and penetrates everything under heaven. It is not the spirit of the nation that creates this great light; rather, the spirit of God, Creator of all, creates it. This living Torah is the foundation of the creation of all the worlds.
With the Oral Law we return to life. We sense that we are receiving the supernal light through the second channel of the soul, the channel that draws near to practical life. We sense that the spirit of the nation - that is connected to the light of the Torah of truth like a flame to a burning coal - has caused with its unique character that the Oral Law was created in its unique form. This Torah of man is certainly included in God's Torah; it is also God's Torah. It is impossible that this bounty of life with all its developments escaped the discerning eye of him who sees with the clearest prophetic vision, the most faithful in the house of God (Moshe). Even the innovations that distinguished scholars will propose in the future - everything was said to Moshe at Sinai. These two lights create a perfect world, heaven and earth touching each other. (Orot ha-Torah 1:1)
            The spirit of God hovers over the Written Law and carries us on its wings; it illuminates our world and our personalities. The Oral Law, on the other hand, descends to the depths of our souls, and illuminates in the cracks and crevices and in the minutest details of existence. This Oral Law draws upon the Written Law and is included in its light. The supernal light of the Written Law shines upon and illuminates all of the expanses of life touched upon by the Oral Law, and paves their paths in earthly reality. Heaven and earth touch one another.[2]

[1] According to the Rambam, there are five parts to the Oral Law. See Hilkhot Mamrim, chap. 1. In his introduction to the Mishna, he spells out those five parts:
1. Received explanations given by Moshe which also have an indication in the verses and can thus be extracted through analytical means. Such laws are not contested. Once someone states, "So I have received," there is no room for disagreement.
2. Laws called Halakha le-Moshe mi-Sinai, which have no Scriptural indications, as we have explained. These, likewise, are not contested.
3. Laws actually extracted by reasoning and analytical methods, which may be subject to debate, as we have mentioned. The final law is decided by majority vote.
4. The laws which the prophets and Sages decreed, throughout the generations, to erect a fence around the laws of the Torah. God ordered them to institute such precautions in the all-encompassing maxim, "And you shall safeguard My safeguards" (Vayikra 18:30), which is explained by the tradition to mean: Make safeguards on top of My precautions. The Sages called these post-biblical decrees gezerot. Disputes sometimes arose over instituting these gezerot, namely when one Sage perceived a need to enact a certain precaution, while another disagreed with him.
5. Laws intitiated by the Sages after their investigation and approval either of a) the practices of the people which neither add on to nor subtract from the mitzva, or of b) legal institutions which would be beneficial for the people insofar as Torah matters are concerned. These are called minhagim ("customs") and takanot ("enactments"), both of which we are forbidden to encroach upon. (Rambam, Introduction to the Mishna)
According to what Rambam writes in Hilkhot Mamrim, it would appear that the five parts of the Oral Law are: 1) the received halakhot; 2) the laws derived from the thirteen hermeneutical principles; 3) decrees; 4) enactments; 5) customary practice. This is not the forum in which to expand upon this matter.
[2] Based on Bava Batra 74a.