YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PHILOSOPHY OF HALAKHA
By Rav Chaim Navon

LECTURE #12: THE WRITTEN LAW AND THE ORAL LAW

1. What is the Oral law?

	Chazal teach us:

"And the Torahs" (Vayikra 26:46) – this teaches that Israel was given two Torahs, one written and one oral. (Sifra, Bechukotai 12,8)

It is clear from the Written Law itself that it must have been accompanied by an oral tradition. Many of the Torah's laws are recorded in fragmentary form, and they plainly must have been supplemented by instructions that were transmitted orally. Regarding Shabbat, for example, the Written Law makes do with the general injunction, "You shall not do any work," and offers only a few examples of forbidden types of work. Nowhere does the Torah specify which offenses are punishable by flogging, but it does state that when the punishment is imposed, no more than the prescribed number of lashes may be administered. In general, many of the Torah's laws relate to problematic, borderline cases, based on the assumption that the law applying in the ordinary case is known. Thus, for example, the law of divorce is mentioned only incidentally to the injunction that a man may not remarry his divorced wife after she has remarried and become divorced again. The law of marriage is not mentioned at all, and it too is learned from the previously cited prohibition. The husband's obligation to provide his wife with sustenance and clothing, as well as his duty to cohabit with her, are only mentioned with respect to marriage involving a Jewish maidservant. We seen then that the Written Law would be deficient and defective were it not for the supplements provided by the Oral Law.

	What does the Oral Law embrace? Rambam, in the introduction to his commentary on the Mishnah, lists the various divisions of the Oral Law:

It follows from the preceding principles that all the laws set down in the [Oral] Torah are divided into five divisions.
The first division – the interpretations received from Moshe which are alluded to in Scripture or may be derived through one of the hermeneutical principles. Regarding [these laws] there are no disputes whatsoever. Whenever a person says, "I have received such-and-such a tradition," all argument ceases.
The second division – are the laws about which it was said that they are halakhot given to Moshe at Sinai. They have no basis [in Scripture], as we have mentioned, and they too are never subject to controversy.
The third division – are the laws derived through one of the hermeneutical principles. They are subject to disagreement, as we have explained …
The fourth division – are the laws enacted by the prophets and the sages in every generation as a fence around the Torah …
The fifth division – are the laws that were enacted to order relations between men, constituting neither an addition nor a detraction to the Torah … They are what the Sages call enactments and customs. (Introduction to Rambam's commentary on the Mishnah)

	Essentially, Rambam divides the Oral Law into three parts: a) laws known directly through tradition, whether they have some basis in the Written Law (1) or not (2); b) laws derived from the Written Law by the Sages throughout the generations (3); and c) new laws instituted by Chazal – precautionary measures (4), enactments and customary practices (5). Indeed, in his Hilkhot Mamrim (5:2) Rambam mentions this tripartite division. Rambam's classification gives striking expression to the two-fold nature of the Oral Law. On the one hand, the Oral Law has a kernel of stable tradition, while on the other hand, it embraces the potential for creative development.

	In this lecture, we shall deal with a basic question – the relationship between the Written Law and the Oral Law.

2. Why is the Oral Law Necessary?

	Let us open the discussion with a basic question: Why is the Oral Law necessary? Our question needs to be clarified. We are not questioning the necessity of those laws defined today as comprising the Oral Law, but rather we are asking why those laws were not given to us as part of the Written Law, as a Divine text, closed and sealed.

	In order to answer this question, let us examine a famous Halakha:

Rabbi Yehuda bar Nachmani, the interpreter for Rabbi Shimon ben Lakish expounded: The verse states: "Write you these words" and it is written: "for after the tenor [lit., by the mouth] of these words" (Shemot 34:27). How so? Teachings that are in writing you are not permitted to transmit orally; teachings that are oral, you are not permitted to transmit in writing. In the academy of Rabbi Yishmael, a Baraita was taught: "These" – these you may write, but you may not write [orally transmitted] laws. (Gittin 60b)

	The gravity with which Chazal related to this principle becomes evident from the following story, which appears in a scholium to Megillat Ta'anit, the earliest extant text of the Oral Law:

"On the fourteenth of Tamuz, the Book of Decrees was abolished, and so eulogies are forbidden. Because the Sadducees wrote a Book of Decrees, [in which it was written] who are stoned, and who are burned, who are killed with a sword, and who are strangled. And when they wrote out [the punishments] someone would ask, and go, and see in the book. [If] someone asked them from where do you know that this one is liable for stoning, and this one is liable for burning, and this one is liable for death by the sword, and this one is liable for strangulation, they would not know how to adduce proof from the Torah. The Sages said to them: Surely, it is written: "According to [lit., by the mouth] the Torah that they will teach you, etc." (Devarim 17:11) – [which teaches] that one is forbidden to write halakhot in a book. … And that day on which they abolished the book, they made into a festival. (Megillat Ta'anit, chap. 4)

Chazal instituted a permanent festival to be celebrated annually on the day that the Sadducean "Book of Decrees" was abolished, all this because "one is forbidden to write halakhot in a book." This story suggests that the problem with committing the orally transmitted laws to writing is that this severs them from the Written Law. When the Oral Law is written as a separate book, its connection to the Written Law becomes lost to the students. This explains why it is forbidden to commit the Oral Law to writing, but it does not answer our original question: why were the orally transmitted laws not recording in writing in the first place? Had that been the case, the problem of the connection between the Oral Law and the Written Law would never have arisen, for the entire Torah would have been committed to writing!

	Let us examine a passage from Midrash Shemot Rabba:

"Write you these words, for after the tenor [lit., by the mouth] of these words" (Shemot 34:27) - i.e., both the Written and the Oral Law – "I have made a covenant with you." Should you reverse the two, converting the Oral Law into a Written Law or vice versa, you will not receive any reward. Why so? Because thus I gave it, one a Written and the other an Oral Law. (Shemot Rabba 47, 3)

We see that this midrash raises the question, "Why so?" But the answer that it provides does not appear to satisfy us.

 Elsewhere, the Midrash suggests a more comprehensible answer:

"Though I write for him the great things of My Torah, they are reckoned a strange thing" (Hoshe'a 8:12). Rabbi Yehuda bar Shalom said: When the Holy One, blessed be He, said to Moshe, "Write for you," Moshe asked that the Mishna be [given] in writing. However, because God foresaw that the nations of the world would eventually translate the Torah and read it in Greek, saying that they are Israel, the claims on both sides thus far being equal, the Holy One, blessed be He, said to the Gentiles: "You say that you are my children? All I know is that those by whom My mysteries reside are my children." What is that? It is the Mishna that was given orally. (Tanchuma, Ki Tisa 34)

This midrash presents a religious-historical argument, which is obviously directed against the Christians. The Christians claimed that they are "verus Israel" – the true Israel – and they even adopted the Written Law. The Oral Law, which constitutes the mysteries of God, was given only to Israel and refutes the Christian claim.

	The Midrash puts forward another, more general explanation:

Someone may ask you why the words of the Scribes were not given in a written form in the same way that the words of the Torah were. Tell him that it was because it is impossible to write down all their words. That is the implication of the verse: "And furthermore, my son, be admonished; [of making many books there is no end]" (Kohelet 12:12). Because if you would attempt to write down their words, you would find the material for the making of books to be endless and unlimited. (Bamidbar Rabba 14,4)

This midrash emphasizes the quantitative issue: As is plainly evident today, transmitting the Oral Law in written form requires endless volumes. Rabbi Yosef Albo, author of the "Ikkarim," amplifies upon this point:

For God's Torah cannot be complete in such a way that it will suffice for all times, for the new particulars that constantly come into being regarding human affairs are far too many to be contained in a book. Therefore, the general rules that are briefly alluded to in the Torah were transmitted orally to Moshe at Sinai, in order for the Sages of every generation to derive therefrom the new particulars. (Sefer Ikkarim, Part III, chap. 23)

Rabbi Yosef Albo argues that we are not dealing here solely with a quantitative problem. Not only did the oral transmission of the Torah save us space on our bookshelves, but it also provided us with a method of clarifying the law. Sparing us the need to search through reams of written laws, God gave us a method for deciding Halakha. Rabbi Albo emphasizes the creative aspect of the Oral Law, which distinguishes it from the Written Law. Fundamentally, the Oral Law is not a corpus of laws, but rather a method that may be activated in every area of Halakha.

	Rabbi Moshe Glasner, great-grandson of the Chatam Sofer and author of "Dor Revi'i", makes an interesting suggestion:

Anyone who wants not to pervert the truth must reach the conclusion that the Torah's explanation was transmitted orally and forbidden to be written in order not to fix it for all generations, and not to tie the hands of the sages of every generation, thus preventing them from explaining the verses as they understand them. For this is the only way to establish the eternity of the Torah, for the changes in the generations, their ideas, their situation, their physical and moral state, require changes in the law, enactments and emendations. (Introduction to Dor Revi'i on Chullin)

The author of "Dor Revi'i" claims that the Oral Law was not committed to writing so as to allow flexibility in deciding Halakha and permit Halakha to adapt to changing circumstances. He is not referring to intentional changes, but rather to subconscious influences that bring the halakhic authorities to interpret verses and laws in a manner appropriate for their times. This seems to be what he means when he speaks of the correspondence between the way these authorities understand Scripture and the needs of the period. Attention should be paid to the difference between the author of "Dor Revi'i" and the author of the "Ikkarim." The author of the "Ikkarim" does not speak of changes, but of dealing with new situations regarding which there are no known rulings.

	Rabbi Yehoshua Falk, author of "Sefer Me'irat Einayim," offers two additional reasons why the Oral Law was not committed to writing:

… Also in order for people not to rely on what is written in front of them and thus refrain from occupying themselves in Torah with the intensity that is required when the material is studied orally. Then it is necessary to constantly meditate upon the material in order to remember it and not forget it. In that way they will derive many laws through their own reasoning.
And I say that God did not want the Oral Law to be written for yet another reason. A written text may have multiple interpretations … Had the Oral Law not been committed to writing, but rather the Halakha with its explanation would have been transmitted from sage to sage, person to person, there would never have been disagreements, and we would not have to spend all of our days in confusion explaining the Halakha. (Introduction to Sefer Me'irat Einayim to Choshen Mishpat)
	
Let us start with Rabbi Falk's second reason. He argues that had the halakhot been transmitted orally, person to person, and had the Sages not have relied on written texts, there would have been far fewer questions as to their meaning. As is well known, material that is transmitted orally leaves less room for doubt, both because questions may be raised as the material is being transmitted, and because in addition to the text itself, the speaker can make use of intonation, hand motions, facial expressions and the like. For this reason it is preferable that the halakhot be transmitted orally.

	Rabbi Falk's first explanation is more interesting. At first glance, we appear to be dealing with a purely technical point: orally transmitted material requires more frequent reviewing, which leads to more intensive study of the contents as well. He seems, however, to be making a more fundamental point, one that is also connected to the considerations mentioned by the author of "Dor Revi'i" (even if this was not Rabbi Falk's actual intention). Oral Law promotes creativity. When information is transmitted orally – and as Rav Sherira Gaon noted in his famous epistle, the transmission of the Oral law involves information, and not fixed texts and formulas - there is much more room for creativity. When we are faced with a fixed text, the tendency is to sanctify it, not to disagree, and not even to try and come up with a creative interpretation of the text. Had the Oral Law retained its oral quality, we would be able to disagree with Rabbi Akiva to this very day. Setting the halakhic material in a fixed text, and then committing it to writing, canonized the Halakha as it had developed until that point. (Obviously, in light of the circumstances of the time, the Sages had no other choice but to commit the Oral Law to writing, as they said in this context: "It is a time to act for the Lord, by making void your Torah.") All the more so would this have happened had the Halakha from the outset been given as a closed text to which nothing may be added, just like the Written Law. In such a case, no room whatsoever would have been left for personal creativity in Torah study. Fortunately, this creativity still exists to our day: the Halakha has been committed to writing, but it is still permissible to add to it. In our day, the Oral Law is sealed with respect to the past, but not with respect to the future: one may not disagree with it, but one is permitted to make additions.

	Creativity in Torah study is of great significance in establishing the unique personal relationship between the student and the Torah he is studying:

At the outset the Torah is ascribed to the Holy One, blessed be He, but eventually [the Torah] is ascribed to him. For the verse states: "But his delight is in the Torah of the Lord; and in his Torah he meditates day and night" (Tehilim 1:2). (Avoda Zara 19a)

What turns God's Torah into "his" Torah, namely, that of the student? The student's personal involvement with the Torah exists only in the study of the Oral Law, and stems primarily from the creative process that such study entails. The student who conceives of a novel idea regarding the Oral Law "acquires" it by effecting a change in it. Thus, it becomes "his" Torah. This allows for the tremendous educational impact of the Oral Law, for the student does not relate to it as a law set apart from him which was forced upon him from above, but rather as his own creation. Here there is a marvelous mingling of the religious experiences of fear and love of God, of creativity and submission. Some authorities – including the author of "Dor Revi'i" cited above – emphasize the human aspect of the Oral Law in as much as it relates to real life and allows for change and development along with changing times and cultures. We place the emphasis on a different point: the personal, educational aspect, the Torah student's total joining to the Oral Law, the law of man. Rabbi Yosef Baer Soloveitchik, author of "Bet Ha-Levi," noted that the Torah student totally assimilates the Halakha into his personality:

When the Torah was later given to the people of Israel orally, they were elevated to a higher level. For at first, when the entire Torah was alluded to in the two tablets of the Law, Israel and the Torah were two separate entities. For the people of Israel were those who observed the Torah and kept it. At that time they had the status of a utensil or an ark containing a Torah scroll, namely, they were "implements used for a sacred thing" ("tashmishei kedusha"). But after the Oral Law was given to them, Israel became the parchment of the Oral Law, as the verse states: "Write them upon the tablet of your heart" (Mishlei 7:3). Just as the parchment of a Torah scroll constitutes the sanctity itself, and is not [merely] an implement, for the parchment and the writing it contains together constitute the Torah scroll, so too the Torah and Israel are all one. (Bet Ha-Levi, derush 18)

	Rabbi Joseph B. Soloveitchik often returned to this point: Man is the object ("heftza") of the Oral Law, just like a Torah scroll is the object of the Written Law. This idea emerges explicitly from a Midrash that compares a Torah scholar to a Torah scroll:

Mishna: How many lashes do we give him? Forty less one, as it says: "In the number of forty" (Devarim 25:2-3) – the number that faces forty [i.e., thirty-nine].
Gemara: If the Torah would have written "Forty in number," I would have said forty in number. Now that it is written "in the number of forty," the number that faces forty. Rava said: How foolish are some people, who rise before a Torah scroll, but do not rise before a great person, for in the Torah scroll it is written "forty," and the Rabbis came and subtracted one. (Makkot 22a-22b)

	This last citation leads us the closing portion of this lecture: the relationship between the plain sense of the Written Law and the Oral Law. Rava describes with full awareness how the Sages uproot the plain sense of the Written Law. Is this indeed so? And if this is true, what is the justification?

3. the relationship between the oral law and the written law

	Some of the more recent authorities have argued that the Oral Law represents the true and correct meaning of the Written Law. For example, Malbim has this to say:

For the midrashic interpretation is the simple, necessary meaning, deeply implanted in the Hebrew language. The entire Oral Law that was handed down to us is written in the book of God's Torah, explicitly and given to understanding. (Introduction to Malbim's commentary to Vayikra)

	The Vilna Gaon, on the other hand, went off in a totally different direction:

"Or to the door post" (Shemot 21:6) – according to the plain sense of the verse, even the door post is valid, but the Halakha uproots the verse. And similarly in most of that section, and so too in many sections of the Torah. This is part of the greatness of our Oral Law, which is the Halakha that was given to Moshe at Sinai, that it is changed like clay under the seal … It is therefore necessary to know the plain meaning of the Torah, to know the seal …  (Vilna Gaon, Aderet Eliyahu, Mishpatim)

The Vilna Gaon argues that the Oral Law is not bound by the simple meaning of the verses in the Written Law. He makes use of a marvelous metaphor: the Written Law is like a seal, and the Oral Law is like the clay under the seal, that is to say, the soft clay into which the seal is impressed. As is well known, the clay under the seal is the exact opposite of the seal itself. The clay is fashioned by the seal, but nevertheless it is different from it. The Vilna Gaon's metaphor is so appropriate, because it emphasizes both the connection between the Written Law and the Oral Law, as well as the difference between them. The Written Law may be seen as a small grain of sand that fell into an oyster, and around which were formed layer upon layer of pearl, the Oral Law.

This passage of the Vilna Gaon is usually cited in order to demonstrate the legitimacy of studying the plain meaning of Scripture independently of the Oral Law. The Vilna Gaon writes that one must study the "seal" in and of itself.
	
The question may be raised, however, according to the Vilna Gaon's approach – which enjoys wide acceptance in our time – why was the Written Law formulated in such a way that its plain meaning contradicts the Oral Law? Why must the seal be so different from its imprint? It would seem that, according to this understanding, the seal itself has value. We see in certain places that the Written Law represents an extreme ideal, which is correct in and of itself, but which cannot be actualized because it conflicts with other values. Thus, for example, the Written Law speaks of "an eye for an eye." There is no question that when we limit ourselves to the idea of justice in its narrow sense, we come to the conclusion that that this is, indeed, the desired law. The Oral Law, however, uproots the plain meaning, because the simple interpretation clashes with other values, e.g., a healthy social order, and benefit to the injured party. The same thing applies in the case of a slanderer who falsely maintains that his wife was not a virgin when she married him. The Written Law requires that the sheets be spread before the elders of the city, this being the most reliable method of clarifying the truth. The Oral Law uproots the simple meaning, because this would involves grave injury to the value of modesty.
	
In both of these cases, God intended from the outset that we conduct ourselves in accordance with the Oral Law. In the Written Law, however, He incorporated a simple formulation of an extreme moral principle, so that we may internalize the moral lesson that it embodies. This is also the approach of Rambam, who, in the third part of his Guide for the Perplexed, explains the reasons for the mitzvot following the plain sense of Scripture, against the Oral Law. Rambam understood that the Written Law has a deep moral message, even when we do not actually follow it in practice. It may be noted as an aside that regarding both examples, Megillat Ta'anit (chapter 4, in the continuation of the passage cited above) relates that the Sadducees followed the plain sense of the biblical verses. 

(Translated by Rav David Strauss)