A manual of Jewish belief (a guide to real Judaism) for the thinking individual.
Copyright © 1977 by R' Avi Shafran
[Web Page Last Revised: Tuesday, June 29, 2004 02:32 PM ]
Chapter 5. Two Torahs from Sinai
The Pentateuch, which we call the Written Law, does not stand as an independent entity. It cannot be interpreted on its own. Many of its laws are incomprehensible if only the text is given. Examples of this can be found in Ex. 21:9 (What is after the manner of daughters" supposed to mean?) and in Ex. 22:16 (What exactly is "the dowry of virgins"?). Many essential words are strange and unknown. They have been coined for the first time in the Book. Examples are Ex. 13:16 ("frontlets"?) and Deut. 12:21 ("and thou shalt 'kill' it as I have shown thee". The word translated "kill" does not mean any type of killing, as the end of the verse clearly says; but nowhere in the Written Law is the manner of killing specified). Other laws are vague, such as the biblical prohibition "no man shall leave his place on the Sabbath" (Ex. 16:29). His country? His city? Street? House? Bed? Then there are major laws which are alluded to in passing. It would seem that the reader is assumed to have prior information about them. Yet, they are never mentioned individually. Examples are: Deut. 21:17 ("but the son of the hated he shall acknowledge by giving him a double portion. . . " The law of the first born's double portion of inheritance is mentioned here only in passing. In essence this verse deals with a prohibition to favor one wife's children over the other's). Deut. 24, verses 1 through 4, deal with the prohibition of remarriage by a couple who were divorced if the wife had married another man in the interim, who divorced her as well. The concept of divorce is assumed, even though the Written Law had not mentioned it until now.
That another system of law, complementary to the written one, was given simultaneously, is evident in the Prophets as well, where specifics found only in the Oral Law are mentioned. In Jeremiah 17: 21-22 clear reference is made to the prohibition of carrying loads on the Sabbath, something mentioned only in the Oral Tradition. In Samuel I, 8:11 laws pertaining to the king are enumerated which are not found in the Written Law. In Nehemiah 10:32 the prohibition against transacting business on the Sabbath is referred as part of "G~d's law, given to Moses..." It is not found in the Written Law, and in Nehemiah 13: 15-17 a roster of Oral Law sabbatical prohibitions is mentioned.
We do not need catalogued examples in order to prove the above point. It is self-evident that there must be more than the Written Law. What, for example, is to be done when two written laws conflict in a specific situation, making the fulfillment of both an impossibility? Does one perform a circumcision on the eighth day if it is the Sabbath? What are the rules regarding a doubt as to which written law applies?
Torah, by definition, must govern everything in the world and must cover every aspect of human life. If there is no oral "spirit" of the law from which to derive its true intentions, no reflective amplification of the written word which communicates more than the law, but the feeling behind it, the way it works and the goals it is to achieve, where then is "the Torah"?
Torah must be timeless and eternally applicable. It must fit every era. There must be a fluid "other half" to Torah, one which is not shackled by the inherent limitations of the written word, one which can be expanded to cover the times and applied to new situations. At the same time the proper limits set by the Written Law and by rabbinically interpreted intentions behind a Law's G~d given purpose must be adhered to.
Written statements can be understood differently, even if the author had only one intended meaning in mind. This is inherent in the written word; it is mute and cannot explain itself. It was therefore necessary to have an Oral Law which was not to be commited to writing, so as not to throw doubt upon its intention.
The Midrash adds another dimension to the necessity for an Oral Law. It tells us that Moses wanted to write down the entire Oral Law for the people but G~d refused to allow it. G~d told him that since the Written Law would inevitably fall into the hands of all the nations, those for whom Torah was truly meant must be the possessors of the only key to truly understanding it. That key is the system of Oral Law which is the substance and soul of the basic but skeletal Written Law. To avoid acquisition of this guide by other nations as happened to its written counterpart, it must be an Oral Law, which can only be translated willfully.
Rabbi Samson Raphael Hirsch reminds us, in a series of essays, that it was not from the Pentateuch that the Oral Law was to be gleaned. The Five Books were to be delivered into the hands of those who were already well-versed in the Oral Law, as a means of preserving their knowledge and reviving it from the Written Law. Its use is as a "source book". Though the Oral Law clearly lies beneath the Written Law, even in its phraseology and grammar, the Written Law is only like carefully written short notes to a long lecture. A student who has heard the lecture can use notes to refresh his memory and revive his knowledge. This comparison sheds light on statements in the Talmud to the effect that the Oral Law is more important, more basic, than the Written Law. Rabbi Hirsch goes on to point out that the Written Law, strangely enough, does not mention the festival of Shavuos as the time of G~d's revelation and giving of the Torah. Shavuos is referred to only as the Festival of Weeks. The Written Law does not specify at all when the giving of the Torah, one of the two most important events in the evolution of the Jewish nation, is to be celebrated. It is the Oral Law which informs us when the event occurred and when it is to be celebrated. The basis then, of the Written Torah is the Oral Torah. The Written Torah without the Oral Torah is an edifice without a foundation.
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