Oral Law
ORAL LAW
ORAL LAW (Heb. תּוֹרָה שֶׁבְּעַל־פֶּה), the authoritative interpretation of the Written Law (*Torah, which is the text of the *Pentateuch) which was regarded as given to Moses on Sinai, and therefore coexistent with the Written Law. This view of the Oral Law was a fundamental principle of the rabbis. The Written and Oral Laws constitute together "two that are one." "It is related that a certain man stood before Shammai and said 'Rabbi, How many Torahs have you?' The rabbi replied 'Two – one written and one oral'" (arn1 15, 61; cf. Sif. Deut. 351). There is a strong and close bond between the Written Law and the Oral Law, and neither can exist without the other – both from the dogmatic point of view and from that of historical reality. The Oral Law depends upon the Written Law, but at the same time, say the rabbis, it is clear that there can be no real existence for the Written Law without the Oral. The need for the positing of the existence of the Oral Law is inherent in the very character and nature of the Torah. The statutes of the Written Law could not have been fulfilled literally even in the generation in which they were given, since "that which is plain in the Torah is obscure, all the more that which is obscure" (Judah Halevi, Kuzari, 3, 35; cf. Moses of Coucy in Semag, introduction: "For the verses contradict and refute each other," and "the statements in the Written Law are vague"). Even those statutes of the Torah that appear to be clearly formulated and detailed contain more that is obscure and requires explanation than what is manifest and understandable. The reasons given for this are many and various. The Written Law contains contradictions (cf., e.g., Deut. 16:3–4 with 16:8), and there is a lack of clarity and definition: The law "he shall surely be put to death" (Ex. 21:12 et al.) does not state whether by stoning, burning, or some other method not mentioned in the Torah. "And ye shall afflict your souls" (Lev. 16:31) does not indicate whether it means by mortification of the body through ascetic practices, by fasting, or in some other manner. The prohibition against doing work on the Sabbath does not specify the nature of work (see below). "And if men strive together and hurt a woman with child so that her fruit depart and yet no harm follow… But if any harm follow…" (Ex. 21:22–23) does not make it clear whether the "harm" refers to the woman or her embryo. Dimensions and quantities are not given, e.g., in the precepts of leket, *shikhḥah, and *pe'ah, or *terumah (the priestly portion), etc. Individual laws are given without any indication of whether the law is confined to that particular case or whether it is to be regarded merely as an example of acategory of laws, e.g., the law that a slave goes free if his master destroys his eye or his tooth (Ex. 21:26–27).
There are lacunae, and laws which are not explicitly stated but to which mere passing reference is made (thus the only reference to the laws of sale and acquisition is the prohibition against overreaching – *ona'ah); there is no reference to the laws of marriage, while the law of divorce is mentioned only incidentally in connection with the injunction that a man may not remarry his divorced wife after she has remarried and become divorced again (Deut. 24:1–4); the Torah enjoins that one sentenced to be flogged may not have more than the fixed number of lashes inflicted (Deut. 25:1–3), but nowhere does it specify which transgressions involve the punishment of a flogging. From the above it seems clear that it was impossible for life to be regulated solely in accordance with the Written Law ("and I should like someone to adjudicate between two litigants on the basis of the weekly portions, Mishpatim [Ex. 21–24] and Ki Teẓe [Deut. 21:10–25:19]" – Judah Halevi, Kuzari, 3:35). It may even be inferred from the Written Law itself that immediately after it was given there already was difficulty in understanding it. Thus, e.g., it is apparent that until he heard it explicity from God, Moses did not know what the penalty was for the transgression of gathering wood on the Sabbath (Num. 15:32–35; cf. Sif. Zut. 15:34: "Eliezar b. Simeon says: Moses did not know that he was liable to death, nor did he know how he should be executed, as can be inferred from the reply given: 'And the Lord said unto Moses: the man shall be put to death,' i.e., he is liable to death; how shall he put to death? He [God] replied: by stoning"; cf. also the case of the blasphemer in Lev. 24:10–23). As stated above, there is no definition in the Pentateuch of what constitutes work in connection with the Sabbath (or the Day of Atonement), only some of the things forbidden being explicitly mentioned (plowing, reaping, kindling fire). Furthermore, in connection with the desecration of the Sabbath, in one and the same verse (Ex. 31:14) two different punishments – death and *karet – are given. From the point of view of its judicial literary form, the Written Law is in fact no different from other early Oriental statutes which never exhausted or aimed at exhausting all the details of the laws given.
If, therefore, the statutes of the Torah could not be properly understood in the generation in which it was given, how much less could it be understood by later generations? In addition to this consideration, it was a fundamental doctrine of the rabbis that the Torah was given by God for all time, that it would never be exchanged for another Torah and certainly never rescinded, and that it provided for all possible circumstances which might arise at any time in the future. Nevertheless, in practice, changing conditions – social, economic, etc. – raised many new problems, as well as the question of their solution in accordance with the Torah. The new situations and spheres of human activity which arose, for which the Written Law did not provide, could not be ignored. In fact, from the beginning the Written Law was the basis of authority of the Oral Law for the future (Deut. 17:8–11 and see below). It can thus be regarded as a historical fact that the Oral Law existed not merely from the moment the Written Law was given (and in this sense it is correct to say that the Written and Oral Laws were given together to Moses at Sinai), but it may even be maintained that the Oral Law anticipated the Written Law, as the Written Law not only assumes the observance of the Oral Law in the future but is in effect based on its previous existence. Since the written law relies – by allusion or by its silence – on statutes, customs, and basic laws not explicitly mentioned in it (marriage, divorce, business; see above), these statutes are ipso facto converted into a part of the Oral Law.
The impossibility of the Written Law existing without an Oral Law can also be demonstrated from Jewish history. The development of the Oral Law can be traced throughout the books of the Bible, especially in the prophets and the hagiographa, in the Jewish literature of the time of the Second Temple (Apocrypha and pseudepigrapha, in Jewish Hellenistic *literature, and in the early Targums of the Bible), the talmudic literature and the rabbinical literature throughout the generations (see *Halakhah). Even the dissenting sects outside normative Judaism, as long as they did not abandon Judaism completely, did not maintain the Written Law without an Oral Law: the *Sadducees possessed a "Book of Decrees – who were to be stoned, who burnt, who beheaded, and who strangled" (the scholium to Megillat *Ta'anit); the Judean desert sect developed, especially by means of biblical exegesis, a most ramified halakhah which has survived in its works (in particular in the Damascus Covenant, the Manual of Discipline and other works; see Dead Sea *Scrolls); and a most ramified halakhah also developed among the *Karaites. In the relationship of the Written to the Oral Law there exists a kind of paradox, both interesting and characteristic. From the dogmatic point of view the Oral Law has its basis in, and derives its validity from, explicit verses in the Written Law, but at the same time the Written Law itself obtains its full validity and its authority for practical halakhah from the Oral Law. The Written Law in fact establishes the authority of the Oral Law by laying down that "if there arise a matter too hard for thee, thou shalt turn unto the judge that shall be in those days," and "according to the tenor of the sentence which they shall declare unto thee from that place… According to the law which they shall teach thee, and according to the judgment which they shall tell thee shalt thou do; thou shalt not turn aside from the sentence which they shall declare unto thee, neither to the right hand, nor to the left" (Deut. 17:8–11). Yet it follows precisely from those very verses themselves that it is the Oral Law itself which determines what the halakhah of the Written Law is in practice, including the true meanings (as distinct from the theoretical philological meanings) of those very verses (Deut. 17:8–11) themselves.
Furthermore the Oral Law lays down explicitly that from the moment of the giving of the Written Law – "from Heaven," at Sinai, but in the language of men and to men – it is handed over absolutely to the judgment of the human intelligence of the scholars of the Oral Law, who accept the "yoke of the kingdom of Heaven" but give halakhic ruling according to their understanding ("henceforth no prophet can innovate anything" – Sifra, Be-Ḥukkotai, 13:7; cf. Shab. 104a), since "it is not in Heaven" (tj, mk 3:1, 81d; bm 59b – based upon Deut. 30:12). Though indeed this rule was not accepted without protest, yet those who objected belonged to the fringes of Judaism, and it was not they who determined the halakhah. The Oral Law is able to circumvent the Written Law (see tj, Kid. 1:2, 59d). In consequence of this provision, Maimonides, following the talmudic sages, ruled that "in an emergency any bet din may cancel even the words of the (written) Torah… in order to strengthen religion and to prevent people from transgressing the Torah. They may order flagellation and punish for breach of law, but such a ruling may not be effected permanently. Similarly, if they see a temporary need to set aside a positive precept, or to transgress an injunction in order to bring many back to religion, or in order to save many Israelites from grief in other matters, they may act in accordance with the needs of the time; just as the physician amputates a hand or a leg in order to preserve the life, so the bet din may rule at some particular time that some precept of the Torah may be transgressed temporarily in order that it may be preserved" (Yad, Mamrim 2:4). Then the sages rightly maintained that the Oral Law is the major and the main part (i.e., both in quantity and quality) of the Torah. "The Holy One made a covenant with Israel only for the sake of that transmitted orally" (Git. 60b; cf. tj, Pe'ah 2:6, 17a: those given orally are beloved"). The Oral Law, which is well-nigh sovereign in relation to the Written Law, is the "mystery" (μνστήριον) of the Holy One (Tanḥ. Ki Tissa 34, et al.; though the sources speak of the *Mishnah, it is certain that the whole oral law is intended) because of the essential nature of its being given orally. It is this nature of the Oral Law – that it was given orally – that determines its vitality and organic development; it is not immutable and fossilized but alive and evolving. This vitality, however, could only be preserved in words not fixed in writing and in a binding and unchangeable form but in words developing continually and unceasingly. As mentioned, the Sadducees had a book of decrees in writing which was their "Oral Law" (the scholium to Meg. Ta'an.), and therefore according to their outlook the whole of the Torah too was "prepared in writing" (Kid. 66a – according to early printed versions and Haggadot ha-Talmud, Constantinople, 1511, 56d), i.e., the written word obligates. The Pharisees, however, claimed that the distinguishing feature and authority of the Oral Law is embedded in the fundamental rule (Deut. 31:19), "put it in their mouths" (the scholium to Meg. Ta'an.). The Oral Law was handed over to the sages, by means of whose words it is fixed and evolves from generation to generation. It is this nature and this sovereignty that are the real will of the Written Law, which was given on the basis that it be explained by means of the Oral Law. This, apparently, is the reason that although there is a disciple who expounds "more than was spoken to Moses at Sinai" (arn213, 32), yet "even what a distinguished disciple will rule in the presence of his teacher was already conveyed to Moses at Sinai" (tj, Pe'ah 2:6, 17a; cf. Meg. 19b and sez 2:171 "Surely both the Bible and Mishnah were communicated by the Almighty"). The meaning of all these and of similar sources is that from the point of view of its functional essence, the whole of the Oral Law was given to Moses at Sinai, since "the Torah itself gave the sages a mind to interpret and to declare" (Sif. Num. 134; cf. "matters not revealed to Moses were revealed to Akiva" – (Tanḥ. B. Num. 117; for its true meaning cf. Men. 29b – the aggadah of Moses entering the yeshivah of *Akiva – "and he did not know what they were saying," not even a detail of a halakhah given to Moses at Sinai). Even the Holy One repeats, as it were, a halakhah as spoken by the sages (pdrk, ed. by D. Mandelbaum (1962), 73, et al.).
[Moshe David Herr]
Attitude of Reform Judaism
In the approximate century and a half of Reform *Judaism's existence, the development of its attitude toward the Oral Law has undergone three fairly distinct phases. In the initial stage, in the early 19th century, most Reform rabbis invoked the Oral Law itself in calling for change in halakhic practice and usage. Thus Aaron *Chorin justified the changes in the liturgy of the Reform congregation of Hamburg (established 1818) by extensive citation of the Talmud and codes. Abraham *Geiger expressed the spirit of the leaders of Reform Judaism of his time in the opening article of the first issue of his publication (Wissenschaftliche Zeitschrift fuer juedische Theologie, 1835) when he wrote: "Salvation lies not in the violent and reckless excision of everything which has descended to us from the past, but in the careful search into its deeper meaning, and in the aim to continue to develop historically from that which has grown historically… much which is now believed and observed is not tradition… but is a product of a certain age, and therefore can be removed by time." Geiger frequently quoted rabbinic sources to justify the abolition of rituals which he deemed a hindrance to "true" religion. This qualified appeal to talmudic tradition is reflected in Michael Creizenach's statement that the unanimous decisions of the Talmud are to be regarded as binding. In a case of divided opinion, "we follow the less strict version so long as it does not contradict our own conviction." The Breslau Synod of Reform Rabbis (1846) centered on the question of modifying Sabbath observance in the light of changed social and economic conditions. The participants buttressed their views by frequent citations from the Talmud and the standard rabbinic codes. The attitude finds expression in the declaration of David *Einhorn, which reflected the position of the majority of Reform rabbis of his age (1839): "We address the Talmud in these words, 'Israel believes thee, but not in thee; thou art a medium through which the divine may be reached but thou art not the divine.'"
This trend of introducing changes in current religious practice on the basis of halakhic precedent interpreted in liberal fashion met with strong dissent within the ranks of early Reform Judaism itself in the person of Samuel *Holdheim, one of the dominant personalities of the movement. He may be said to have spiritually fathered the anti-halakhic stance that marked the second phase of the development of Reform Judaism. His views were set forth in his book Das Ceremonialgesetz in Messiasreich (1845). According to Holdheim, the basic purpose of the ritual law was to safeguard the holiness of the people of Israel in a pagan world. As paganism vanishes, the ritual laws are needed less and less, and with the arrival of the messianic age they will become totally superfluous. "The time has to come when one feels strong enough vis-à-vis the Talmud to oppose it, in the knowledge of having gone beyond it." Accordingly, Holdheim advocated the abolition of circumcision and changing the Sabbath to Sunday. David Einhorn, deeply influenced by Holdheim, limited the authority of the Talmud to those aspects which were attributable to the Men of the Great Assembly.
The anti-halakhic mood of Reform Judaism, a minor strain in the incipient stage of the movement, gained increasing ascendancy as the 19th century progressed and the major scene of the Reform movement's activity shifted to the United States. Bernard Felsenthal summed up the dominant mood of most of his colleagues toward the halakhah: "There is but one class of laws biblical or post-biblical which have eternal validity and these are the moral laws engraved by the finger of God with ineradicable letters in the spirit and nature of man" (Kol Kore Be-Midbar, no. 11, 1858). The official attitude of 19th-century American Reform Judaism found expression in the platform adopted in 1885 by the Conference of Reform Rabbis in Pittsburgh. The fourth paragraph of the platform reads in part: "We hold that all such Mosaic and rabbinical laws as regulate diet, priestly purity and dress originated in ages and under the influence of ideas entirely foreign to our present mental and spiritual state… their observance in our day is apt rather to obstruct than to further modern spiritual elevation." In this spirit, the annual meeting of the Central Conference of American Rabbis (ccar) in 1892 declared that no initiatory rite (circumcision, ritual immersion) was required for admission into Judaism. In his work Jewish Theology (1928) Kaufman *Kohler formulated the position of this second phase of Reform Judaism in these words: "To them (the prophets) and to us the real Torah is the unwritten moral law which underlies the precepts of both the written law and its moral interpretation" (p. 45). "It [the Oral Law] fostered hair-splitting casuistry and caused the petrifaction of religion in the codified Halakhah" (p. 47).
In the past few decades, Reform Judaism has displayed a sharp veering away from the anti-halakhic spirit described above. The depreciation of the Shulḥan Arukh and other legal works characteristic of discussions on the subject as reported in the early Annuals of the ccar have been replaced by regret that Reform Judaism lacks the sense of halakhah (Introd. to Current Reform Responsa, Solomon B. Freehof, 1969). Repeatedly, in the recent past, the demand for a specific code of practice has been raised. Though opposed to the formulation of a binding code for Reform religious practice, Solomon B. Freehof has been active, as chairman of the Responsa Committee of the ccar, in responding to questions relating to Reform religious practice. While written in the style of traditional responsa, citing the recognized codes and legal authorities, the answers given are intended, with a few exceptions, to be merely advisory in nature. The turn toward traditional practice in Reform congregations is to be seen in the reintroduction of the bar mitzvah, calling to the Torah (aufrufen), Havdalah, etc. The revision of the anti-halakhic attitude of classic Reform Judaism is a process whose outcome can hardly be anticipated at this writing, but that it is one of the major concerns of contemporary Reform Judaism is evidenced by the prominent place it occupies in Reform thought and writing.
Attitude of Conservative Judaism
Zacharias *Frankel's demonstrative withdrawal from the Synod of Reform Rabbis (Frankfurt, 1845) and his enunciation of Positive-Historical Judaism are regarded as the point of departure for the subsequent founding of the distinct trend in modern Judaism commonly known as *Conservative. The doctrine of Positive-Historical Judaism received considerable elaboration by Solomon *Schechter, who regarded himself as a disciple of Frankel, Leopold Zunz, and Heinrich Graetz when he wrote: "It is neither Scripture nor primitive Judaism but general custom which forms the real rule of practice… Liberty was always given to the great teachers of every generation to make modifications and innovations in harmony with the spirit of existing institutions. The norm as well as the sanction of Judaism is the practice actually in vogue. Its consecration is the consecration of general use or, in other words, of Catholic Israel" (Studies in Judaism, 1 (1896), 17–19). While the ideological leaders of Reform Judaism interpreted the thesis of the Oral Law's historical conditioning as implying its dispensability, for Schechter and his disciples the thesis, originally propounded by the Wissenschaft Des *Judentums, served as one of the touchstones of the authority of the Oral Law. The divergence in viewpoint is to be attributed to the preponderant weight ascribed to tradition by the spokesmen of Conservative Judaism. In contrast to Orthodoxy, the divine origin of the Oral Law as the basis of its authority is interpreted in Conservative circles in non-literalistic fashion (see Robert Gordis, in Tradition and Change, ed. by Mordecai Waxman (1958), 377ff.). The frequent appeals for loyalty to the Oral Law to be found in the writings of Schechter ("It – Judaism – insists upon the observance both of the spirit and the letter… Judaism is absolutely incompatible with the abandonment of the Torah" (Seminary Addresses and Other Papers (1915), 21–22).) find their final validation in the fact that Jewish religious usage had won acceptance from the religious conscience of the overwhelming majority of the Jewish people (the concept of Catholic Israel).
Louis *Ginzberg viewed halakhah as constituting the mainstream of Judaism. Through his teaching and writings, he made the halakhah one of the central concerns of Conservative Judaism, always insisting, however, that the halakhah of the Talmud constituted an organic growth that retained its vitality by reason of its responsiveness to changing locale, and social and economic conditions. Yet, with a single exception – a responsum on the permissibility of the use of grape juice for sacramental purposes during the prohibition era in America – he proved reluctant to apply his theoretical understanding of the halakhah to the exigent problems of Jewish life in the 20th century. (For the responsum in English translation, see ajyb, 25 (1923–24), 401–25.)
The practical implications of this approach to the halakhah underlay the work of the Committee on Jewish Law of the Rabbinical Assembly. Established in 1927, it has issued a large number of halakhic decisions recorded in brief or in detail in the annual Proceedings of the Rabbinical Assembly. Prior to 1948, none of these decisions reflected any significant departure from traditional Orthodox practice. In 1948, the annual convention of the Rabbinical Assembly rejected a proposal that its Committee on Jewish Law "shall be instructed to hold itself bound by the authority of Jewish law and within the frame of Jewish law to labor toward progress and growth of the law to the end of adjusting it to present-day religious needs and orientation, whether it be on the side of severity or leniency." The defeat of the proposal was motivated by a desire on the part of the majority to reckon with non-halakhic factors, such as contemporary social realities and moral standards, in determining the point of view of Conservative Judaism on any specific question. Hence, in 1949 the concept was formally accepted that "decisions of the Law Committee shall be presented in the form of a traditional responsum indicating its relationship to relevant halakhic and other material."
To reflect this change in basic position, the name of the committee was changed to Committee on Jewish Law and Standards. It was reorganized and increased to 23 members, so as to offer representation for the diversity of viewpoint to be found among members of the Rabbinical Assembly. A rule of procedure was adopted whereby a member of the Rabbinical Assembly could accept either the majority or minority view of the committee. In instances where decisions were unanimous, such decisions were to be regarded as binding. Two responsa were published by the committee on Sabbath observance, in the course of which divergent views were expressed on the permissibility of riding to attend synagogue service on the Sabbath in instances where one lived beyond reasonable walking distance and the use of electricity on the Sabbath for purposes of illumination (for the responsa in question, see Tradition and Change, ed. by M. Waxman (1958), 349–409). To obviate the problem of the *agunah, a woman who though divorced civilly cannot obtain a get (writ of divorcement), the Joint Law Conference of the Rabbinical Assembly and the Jewish Theological Seminary adopted in 1954 a takkahah (enactment) to be inserted in the ketubbah (marriage document). Latterly, the committee has adopted, and in specific instances exercised, the long-dormant halakhic principle of hafka'at kiddushin (annullment) where, for one or another circumstance, the writing of the traditional get is impossible. Another halakhic decision of far-reaching consequence is that of rendering the observance of Yom Tov Sheni (the second days of the three festivals) a matter of option to be exercised by the rabbi of the local congregation (some members of the committee vigorously dissented on the decision; see Conservative Judaism, 24, no. 2 (1970), 21–59). Various responsa by the committee are to be found in the annual Proceedings of the Rabbinical Assembly and deal with such matters as the use of the organ on Sabbaths and festivals, the use of gentile wine (yayin nesekh), the donation after death of the cornea of the eyes for purposes of transplant, ritual circumcision by a Jewish physician, cremation, synagogue membership for a Jew who has intermarried, etc.
[Theodore Friedman]
bibliography:
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