Ch. 1 (I) The Antiquity of the Oral Law

Wordfile

Chapter One (1) The Antiquity of the Oral Law

I. Introduction

Ostensibly, the tradition regarding the existence of the Oral Law derives from the words of Chazal. It was they who coined the term "Oral Law," and it was they who related to it as a concept that existed from the earliest times, parallel to the Written Law. Thus, for example, the Midrash comments on the verse: "These are the statutes and ordinances and Torahs, which the Lord made between Him and the children of Israel in Mount Sinai by the hand of Moshe" (Vayikra 26:46):

"The statutes" – these are the midrashic expositions; "and ordinances" – these are the laws; "and the Torahs" – this teaches that two Torahs were given to Israel, one in writing and one orally. (Torat Kohanim, Bechukotai 8, 13, 112c)

Another example: Regarding the verse, "They shall teach Yaakov Your ordinances, and Israel Your law" (Devarim 33:10), the Midrash states:

"And Israel Your law" – this teaches that two Torahs were given to Israel,^[1] one in writing and one orally. General Agnitus asked Rabban Gamliel, saying to him: How many Torahs were given to Israel? He said to him: Two, one orally and one in writing. (Sifrei Devarim 351, p. 408)

The meaning of these and similar remarks of Chazal will be discussed in the coming chapters. This chapter concerns whether Chazal were the first in Jewish history to distinguish an Oral Law, or whether there is evidence in Scripture itself for the existence of the Oral Law.

To guide our discussion it will be helpful to keep in mind three (overlapping) notions of the Oral Law.

1. In the simplest sense, the Oral Law is a system of commands that were transmitted by word of mouth and without any official, written codification.
2. The Oral Law also includes orally transmitted glosses on written law.
3. Most broadly the Oral Law includes the total body of additions – some of which emerged organically, some of which responded to circumstance – to the Written Law.

We will see that Scripture deals explicitly with all three of these notions.

At the outset, it should be noted that, of course, written texts address readers who will understand the texts in large part due to their oral facility with the language of composition. For example, when the Torah commands, "You shall dwell in booths [sukkot] seven days" (Vayikra 23:42), the underlying assumption is that readers, by virtue of belonging to a community of shared language, roughly agree what "sukkot" indicates. Likewise, it is clear that the commandment, "A bastard [mamzer] shall not come into the assembly of the Lord" (Devarim 23:3), addresses those to whom "mamzer" picks out a pretty well-defined set. Our focus will not be on this interesting but basic point.

We will now turn to the Oral Law’s life across various Biblical eras.^[2]

II. The Oral Law Prior to the Revelation at Mount Sinai

We saw above that Chazal determined that the Oral Law was given to Israel at the assembly in Mount Sinai. It is evident, however, that even before the assembly at Mount Sinai, a kind of Oral Law took the form of explicit commandments, informal practices, and moral norms, all of which were taken to legally bind certain people.

1. Explicit commandments:

          The people in the book of Bereishit are already committed to various mitzvot, regarding which they were explicitly commanded by God, even before they were committed to writing. An initial list of commands appears already in the words of God to Noach in the aftermath of the flood:

And God blessed Noach and his sons, and said to them: Be fruitful and multiply, and replenish the earth… Every moving thing that lives shall be for food for you; as the green herb have I given you all. Only flesh with the life thereof, which is the blood thereof, shall you not eat. And surely your blood of your lives will I require; at the hand of every beast will I require it; and at the hand of man, even at the hand of every man's brother, will I require the life of man. Whoever sheds man's blood, by man shall his blood be shed; for in the image of God made He man. (Bereishit 9:1-6) 

According to the plain meaning of the text, this list includes several laws: an allowance to eat meat, a ban on eating blood, a ban on murder and the death penalty for a murderer.^[3] These laws were not put in writing in a binding document, but it is clear from the stories of Bereishit that they were perceived as binding. Thus, for example, we can understand why when the brothers were considering killing Yosef, they tried to conceal the matter – "And we will say, An evil beast has devoured him" (Bereishit 37:20); and why in the end they refrained from killing him, in the wake of Yehuda's words: "What profit is it if we slay our brother and conceal his blood" (ibid. v. 26). Murder was explicitly banned in God's commandments to Noach and his sons, and, so far as we know, the prohibition was passed down from one generation to the next as part of an oral tradition.

A special commandment was given to Avraham and his descendants - circumcision:

And he that is eight days old shall be circumcised among you, every male throughout your generations, he that is born in the house, or bought with money of any foreigner, that is not of your seed. He that is born in your house, and he that is bought with your money, must needs be circumcised; and My covenant shall be in your flesh for an everlasting covenant. And the uncircumcised male who is not circumcised in the flesh of his foreskin, that soul shall be cut off from his people; he has broken My covenant. (Bereishit 17:12-14)

This mitzva was also not put in writing until the Torah was given to the people of Israel, but nevertheless it obligated the descendants of Avraham, as is evident from various passages in the Torah.^[4] This too was part of the Oral Law of that period.^[5]

The people of Israel became parties to an Oral Law even before the theophany at Sinai. After the exodus from Egypt, the people of Israel were given several commandments regarding the observance of Pesach in future generations (Shemot 12:14-20; 43-49), and the mitzva concerning the firstborn, connected to the plague of the smiting of the firstborns of Egypt (Shemot 13:1-15). In the continuation of their journey away from Egypt, they were given the mitzva of Shabbat (in the passage dealing with the manna; Shemot 16:22-30). These commandments as well were given orally and were viewed as binding even before the revelation at Mount Sinai.

2. Practices without explicit commands:

The system of laws by which the people in the book of Bereishit lived included much more than the explicit commands mentioned above. Let us note the institution of marriage, itself evidence for such an non-written legal culture. Sexual relations between a man and a married woman were forbidden, as evidenced by the stories about the Patriarchs.^[6] Furthermore, the basic law of levirate marriage, which states that if a married man dies without children, his widow must marry his brother in order to build up the house of the deceased, existed already at the time of the events recorded in the book of Bereishit, as explicitly emerges from the story of Yehuda and Tamar (Bereishit 37). What is more, if we understand that the verse: "And Yitro, Moshe's father-in-law, took Tzipora, Moshe's wife, after he had sent her away" (Shemot 18:2), refers to Tzipora's divorce from Moshe,^[7] it turns out that the institution of divorce as well was known even before the Torah was given to the people of Israel.

The same is true for many other areas, for example: the law of inheritance^[8] and the special standing of a firstborn with respect to his father's estate,^[9] mourning,^[10] eulogy and burial,^[11] the means of transferring ownership of property from one person to another,^[12] the responsibility of a bailee,^[13] the binding nature of an oath^[14] or vow,^[15] as well as the existence of a sacrificial system and the building of altars.^[16]

The origin of many of these pre-Sinaitic, un-written norms is of course not clear. Were they given by God in an address that (for whatever reason) went unrecorded in the Torah?  Were they instituted by human rulers? Did they evolve organically? The Ramban speculates in his commentary to the Torah (Bereishit 38:8) about the original justification for levirate marriage: "The ancient sages from before the giving of the Torah knew that great benefit ensues from levirate marriage performed by the brother of the deceased, and it is fitting that he be given priority, and after him the nearest relative in the family, for benefit is attained through any relative of the family in line for inheritance.” Of course, a justification is not a genealogy. It is not clear from his words how the matter became known to the ancient sages. Today we know that various nations in the ancient Near East practiced these laws.^[17] For example, the laws of Middle Assyria (table A, section 33) state: "If a woman is still living in her father's house, but her husband has died, as long as she has sons, she may live in whichever of their houses she chooses. If she does not have a son, her father-in-law is to give her to whichever of his [other] sons he prefers… or if he wants, he may give her as spouse to her father-in-law. If both her husband and her father-in-law are dead, and she has no sons, she is a legal widow, and may go wherever she wants." In any case, these laws and practices were also part of an "Oral Law" that obligated people even though they had not at that time been put in writing.

3. General moral conduct:
 

Beyond the existence of a system of laws, commandments and practices, we can discern a fundamental commitment on the part of the characters in the book of Bereishit to a moral life. God testifies about Avraham: "For I have known him, to the end that he may command his children and his household after him, that they may keep the way of the Lord, to do righteousness and justice" (Bereishit 18:19). Thus it was established that doing righteousness and justice is the path of God. Only in this way can we understand how it was possible to punish the people of Sedom, who were "wicked and sinners against the Lord exceedingly" (Bereishit 13:13), even if they did not necessarily violate any explicit prohibitions, but lived radically immoral lives. The discussions between Avimelekh and Avraham (Bereishit 21:25-26) and between the former and Yitzchak (Bereishit 26:27-28) are only intelligible if it's assumed that the Bible understood people to be culpable for immoral behavior. These practices, as well, were not committed to writing, but rather were part of the ancient Oral Law that existed in the world even before the formation of the people of Israel. It seems that also the verse, "because Avraham hearkened to My voice, and kept My charge, My commandments, My statues, and My laws" (Bereishit 26:5), is directed at the general moral behavior that characterized the Patriarch Avraham).^[18]

That unwritten law was a standard feature of Biblical life before Sinai is itself of interest. Perhaps more interesting is that the Israelites' Written Law itself presupposes an oral tradition.  The formulation of several mitzvot in the Torah indicates that they are based on prior knowledge that should be known to its recipients. The Torah is not formulated as a book that defines the entire system of laws and mitzvot from the beginning, but rather as a book that adds stories on top of the foundations passed down as Oral Law from one generation to the next. 

Thus, for example, the Torah does not specify a marriage procedure. It does, however, address divorce:

When a man takes a wife, and marries her, then it comes to pass, if she finds no favor in his eyes, because he has found some unseemly thing in her, that he writes her a bill of divorce, and gives it in her hand, and sends her out of his house, and she departs out of his house, and goes and becomes another man's wife, and the latter husband hates her, and writes her a bill of divorce, and gives it in her hand, and sends her out of his house; or if the latter husband die, who took her to be his wife; her former husband, who sent her away, may not take her again to be his wife, after that she is defiled; for that is an abomination before the Lord; and you shall not cause the land to sin, which the Lord your God gives you for an inheritance. (Devarim 24:1-4)         

The Torah assumes that the procedure by way of which a man takes a woman as his wife is well-known to all. Which isn’t unreasonable, given that the institution had existed for centuries before it was given to the people of Israel. Marriage procedures had been passed down as Oral Law, which is not separate from the Written Law given to the people of Israel. What is more, the wording of the passage implies that its main novelty is the prohibition cast upon a person to remarry his ex-wife who in the interim had married another man. From here we may infer that the Torah does not even necessarily come to teach about the institution of divorce, which probably existed earlier as well.^[19] 

The law concerning the double portion of inheritance that goes to the firstborn is also not stated directly in the Torah, but rather it is derived incidentally from what is written in the passage dealing with a firstborn, which is mainly concerned with a different principle:

If a man has two wives, the one beloved, and the other hated, and they have borne him children, both the beloved and the hated; and if the firstborn son be hers that was hated;  then it shall be, in the day that he causes his sons to inherit that which he has, that he may not make the son of the beloved the firstborn before the son of the hated, who is the firstborn;  but he shall acknowledge the firstborn, the son of the hated, by giving him a double portion of all that he has; for he is the first-fruits of his strength, the right of the firstborn is his. (Devarim 21:15-17)

The law assigning a double portion to the firstborn son is mentioned only   as context for the case of a firstborn son of a hated wife. The Torah establishes that, even so, a double portion is awarded, for "the right of the firstborn is his." The phrase, "the right [mishpat] of the firstborn," attests to the fact that we are dealing with a regular and well-known practice^[20] that did not have to be renewed. It was already known and accepted orally. The novelty lies only in the extension of the practice to an exceptional case.^[21]

We see then that the existence of the Oral Law is an inseparable part of the foundation of the Written Law, which is based on knowledge that the reader knows by tradition.

Translated by David Strauss