Is Torah Sh'Baal Peh from Sinai, and does it matter? Part 1a

A historical and theological analysis

Note: The topic under discussion are deserving of intricate analysis and can hardly be done justice in a short blog post (although, truth be told, it’s not so short). Nevertheless, I attempted to make a summary of the relevant issues, and I tried to keep it conversational and not more technical than necessary. As part of that goal, I have not included a large amount of references. However, I have done my utmost to ensure that every claim is supported by reliable sources. If you want the source of any specific claim, feel free to ask in a comment or to message me directly.

Traditional Orthodoxy can generally be characterized in one sentence: Strict adherence to Halacha. Obviously, many other social and theological factors are at play, but this seems to be the salient defining feature. There may be various debates as to the exact parameters of this ideal, but above all other considerations, a community can be considered Orthodox if it subscribes to this doctrine.

What is Halacha? Simply put, Halacha is a comprehensive legal system governing all aspects of religious life, encompassing prayers, Shabbos holidays, dietary laws, family purity, to marriage and monetary laws. Where does it come from? The Talmud is considered to be the primary Halachic text, supplemented by writings from the rishonim, acharonim, down to modern day poskim. It is a complex system of exegesis, interpretation, and analysis of Biblical law. Without the Talmud, Judaism as we know it would not exist. The vast majority of halachos are not explicit in the Torah, and are only established through rabbinic traditions.

Thus, the question is obvious. Where do the Rabbis get their authority from? What are the sources for all these traditions and interpretive methods? From a sociological perspective, this question is a non-starter. Judaism is a civilization, and civilizations necessarily adopt authorities for the purposes of remaining cohesive. Rabbinic Judaism is one institution of authority that was subsequently accepted and survived until the modern era.

However, the goal here is not to understand only the sociological causes, but also the theological justifications. Why should Rabbinic authority be binding? How does Orthodoxy defend its position that Halacha represents the divine will?¹

The Traditional Approach

The traditional answer is what is stated in the first Mishnah in Avos-משה קיבל תורה מסיני ומסרה ליהושע ויהושע לזקנים וזקנים לנביאים ונביאים מסרוה לאנשי כנסת הגדולה, that the traditions did not originate from the Rabbis of the Talmudic era, rather they survived for countless generations in a line of tradition stretching back until Sinai. Therefore, the authority of Torah Sh’Baal Peh emanates directly from God. This idea is further discussed in various Rabbinic sources. The Sifri (Lev. 26:46) states the following: אלה החקים והמשפטים והתורת אשר נתן ה' בינו ובין בני ישראל בהר סיני ביד משה מלמד שניתנה התורה הלכותיה ודקדוקיה ופירושיה על ידי משה מסיני. The Sifri is rather explicit that every detail of TSBP was given directly to Moses at Sinai. There are dozens of similar sentiments expressed in various sources, and overall, it seems that this idea was universally accepted within Rabbinic literature.

There are several challenges to this idea which are traditionally dealt with. One of the primary issues raised is the idea of מחלוקת. If all the traditions go back to Sinai, how do we have differing opinions amongst the Rabbis themselves. There seem to be roughly three approaches in dealing with this. One approach is rooted in the following Tosefta (סנהדרין פרק ז'): א"ר יוסי בראשונה לא היה מחלוקת בישראל כו' משרבו תלמידי שמאי והלל שלא שימשו כל צרכן הרבו מחלוקות בישראל ונעשו שתי תורות, which implies that every dispute represents a forgotten tradition. The other approach is rooted in the Gemara in Eiruvin (י"ג ע"ב) which introduces the concept of אלו ואלו דברי אלהים חיים. There are various interpretations of this concept, but it is worthwhile to quote the famous words of the Ritva:כשעלה משה למרום לקבל התורה הראו לו על כל דבר ודבר מ״ט פנים לאיסור ומ״ט פני׳ להיתר ושאל להקב״ה על זה ואמר שיהא זה מסור לחכמי ישראל שבכל דור ודור ויהיה הכרעה כמותם ונכון הוא לפי הדרש ובדרך האמת יש טעם סוד בדבר. ² The third approach is that of Maimonides, which we shall discuss in a moment.

Another question that is raised according to this approach is the idea of סברא andמידות שהתורה נדרשת בהם. If everything is a direct mesorah from Sinai, what is the purpose of methods of exegesis and analysis (which were also given at Sinai according to ברייתא דר' ישמעאל)? The classic answer given is that based on the גמרא in Temurah (ט"ז ע"א): במתניתין תנא אלף ושבע מאות קלין וחמורין וגזירות שוות ודקדוקי סופרים נשתכחו בימי אבלו של משה אמר רבי אבהו אעפ"כ החזירן עתניאל בן קנז מתוך פלפולו. This seems to insinuate that there are two methods of arriving at Halacha, and they will both concur. If tradition is forgotten, we can restore it through Pilpul, and if we are not capable of such powers of Pilpul, we can rely on tradition.³

However, Maimonides (בהקדמתו לפירוש המשניות) offers a novel approach. He argues that there are two parts of TSBP; part is directly from Sinai and on that there is no disagreement, and part was established throughout the generations through the י"ג מידות שהתורה נדרשת בהן, which themselves were given directly at Sinai. This solves both issues. The tradition was faithfully past down without being forgotten, while drashos were used to establish new halachos, in which there arose many disagreements.⁴ (He explains the Sifri to be referring only to details in the former category.)

From a critical perspective, there are several issues that can be raised with the notion of a large extratextual oral tradition for more than a millennium. In this installment I would like to focus on the historical arguments in particular, and in a future installment I will discuss the textual arguments. I would like to present seven distinct historical arguments which challenge the literal understanding of the claim that Mishnaic and Talmudic tradition stem from an oral tradition going back to the time of Moses.⁵

Argument 1

Some time in the latter half of the Second Temple Period, we see a virtual explosion of various Jewish sects. This includes the Sadducees, the Essenes, the Pharisees, and later the early Christians. (There were also some prominent groups such as the Zealots and the Sicarii, but these were more focused on political ideology than religious ideology, although many of these groups did have a slightly different form of practice.) Much is known about these groups from sources such as Josephus, Philo of Alexandria, Christian fathers, several Roman accounts, and in the last century we’ve had access to a gold mine of information from the legendary Dead Sea Scrolls, discovered in a cave in Qumran in 1947. We have detailed knowledge about the theology and practice of many of these groups, and although none of them were biblical literalists (aside from possibly the Sadducees which is a topic of debate), they had wildly different interpretations and practices. For example, the Essenes would not go to the bathroom on Shabbos, promoted celibacy, and many other differences. In particular, the large law codes we have from them on ritual purity and on dietary laws, although they are heavily nuanced with extremely complex details much like the rabbinic version (reflecting a trend to develop such laws), they disagree with the rabbinic version on virtually every detail not mentioned explicitly in the Torah. Philo of Alexandria (from the leaders of the Therapeutae) wrote a lengthy philosophical commentary on the Torah, and he allegorizes large amounts of the laws, contrary to rabbinic traditions. Even the Pharisaic traditions we are aware of (which are admitted speculative, as we have no direct Pharisaic writings) seem to have had significant differences with later Rabbinic law. (The transition from Pharisees to Rabbis occurred in Yavneh during R’ Yochanan Ben Zakai’s post-destruction reformation according to most scholars, and many theories postulate a strong Essene influence as well.)

Given the historical context, what basis do we have to establish that the Pharisaic tradition were older than the other sects? We have a sectarian culture which is clearly producing emergent sects as a response to the great upheavals occurring in Judea at the time (or due to other influences such as Ptolemaic Hellenism in the case of the Therapeutae), and each was claiming to be the authentic historical Judaism. The most plausible hypothesis is that they any sect claiming to have traditions which are not independently confirmed to be as ancient as they claim to be should be suspect. I would argue that the sect which was most likely the closest to biblical Judaism are the Sadducees, who made no observable deviation from confirmed biblical religion.⁶

This is further supported when we look at the earliest characters in the Mishnaic tradition. The earliest identifiable historical figures who are prominent in the Pharisee-centric narrative are Shimon Ben Shetach and Hillel, both of whom lived in the 1^st century BCE.⁷ There are virtually no teachings ascribed to anyone before this date, which would support the model proposed above.

Furthermore, if we study the roots of the Sadducees, it seems likely that they preceded the whole sectarian era. The question has been raised where the name Sadducees (צדוקים) comes from. It is clearly a reference to the name צדוק, but it is unclear as to the identity of this particular Zadok.⁸

The Sadducees for the most part were the aristocratic priests in Jerusalem. (This is part of the reason why they did not become popular amongst the people as reported by Josephus.) This is evident in the rabbinic references as well, and most of Sadducee practices reported centered around the temple worship. Interestingly, the family of Zadok (בני צדוק) is a prominent priestly family mentioned throughout the first temple, and Ezekiel in particular singles out the family of Zadok as the ones who should serve when the Temple is rebuilt. Indeed, several of the prominent priest in Ezra and Nehemiah trace their lineage to Zadok. This observation would seem to suggest that the name Sadducess is referring to the priestly family of Zadok, which was the prominent priestly family going back to the time of Ezra. If this is true, it would suggest that the Sadducees represent a tradition going far earlier than any of the other sects.⁹

Additional evidence of the absence of a uniform tradition can be demonstrated from second temple texts, such as the Book of Jubilees, which specifies the date of Shavuos as 15 Sivan, which clearly deviates from the Rabbinic interpretation of ממחרת השבת (although does not align with the Sadducee interpretation either as presented in Rabbinic sources). Even more shockingly, both the Book of Jubilees and the Book of Enoch (which probably date to the early Hellenic period and were both common in Judea during that era) reject the lunar calendar entirely and adopt a solar calendar!! How could this happen if there was a clear tradition?

What all this seems to indicate is that there was that the sectarian era represented a revolution, one which reformed the way Judaism was approached. If we identify the identifiable features of the revolution and then analyze Pharasaic and Rabbinic Judaism, we are likely to conclude that it’s a product of it’s era. The concept of tradition in this period was superimposed over the older version of Judaism. The Sadducees seem to be the traditionalists who clung to the old ways, while the other groups were reformers who took part in the sectarian revolution.¹⁰

Argument 2

The Mishnah in Avos traces the line of tradition between the prophetic era and the rabbinic era through two institutions, one being the Men of the Great Assembly, and the second being the Zugos. They represented the line of tradition which connected the Oral law all the way back to Moses. Maimonides further develops this as a comprehensive list in the Introduction of Mishneh Torah.

How did they know this chain of transmission? If the tradition indeed went back to Moses, they would obviously be aware of it through the tradition itself, as the names of the transmitters would be remembered no less than the thousands of details that they transmitted. If we can demonstrate that it was a later reconstruction, it would be highly implausible to say that there was indeed a tradition at all, as they didn’t even have a tradition of the names of the transmitters. (By reconstruction I mean that there was no memory of it, and it was retroactively written based on what would make sense according to the chronology.)

The chronology that the Mishnah is using is clearly that of the Seder Olam, which states that he Second Temple stood for 420 years, the Persian Era lasted 52 years in total, which is 34 years into the Second Temple period, and Alexander the Great conquered Judea in 311 BCE, which was the beginning of minyan shtaros. The traditional chronology differs greatly from this. According to the traditional chronology, first recorded by the Greeks, the Persian Empire lasted for over 200 years, beginning in 550 BCE until it fell to Alexander in 333 BCE. Minyan Shtaros began with the Seleucid rule in 311 BCE. According to this chronology, the Second Temple Stood for 585 years.

The student of Simeon is recorded in the Mishnah to be Antigonus, who’s name is clearly of Greek origin. This aligns with the Rabbinic tradition that Simeon met Alexander the Great when he came to conquer Jerusalem. Therefore, the Mishna must’ve dated Simeon to the late 4^th century BCE. (This is also clear from the fact that only 5 generation are counted from Simeon until Hillel, who lived in the late 1^st century BCE.) However, if the Mishnah was assuming the traditional chronology which puts the destruction of the First Temple in 586 BCE and the rebuilding of the Second Temple c. 516 BCE, there’s a break of nearly 200 years of Second Temple history that is unaccounted for. Although it’s unclear how long the Men of the Great Assembly lasted for, it is clearly assumed in Rabbinic literature to be a group of 120 roughly contemporary leaders, ranging from prophets such as Haggai Zachariah and Malachi to sages such as Mordecai, Ezra, Nehemia and Joshua the high priest. All these figures lived immediately before and after the rebuilding of the Second Temple, so Simeon could not possibly have משיירי כנסת הגדולה. Therefore, the transmission process only holds water if we assume the SO chronology, which places only 40 years between the rebuilding of the Temple and Alexander’s conquest.

However, the traditional chronology is supported by an untold amount of evidence. This includes contemporary Greek accounts, Persian king lists and contracts, archeology within Judea itself, a significant amount of biblical evidence from the books of Ezra and Nehemia, and even precise astronomical dating records from the Babylonians and Persians, which can be calculated mathematically with absolute certainty to the day! This is known as the missing years of Jewish history, and no solution has been put forth so far. Consequently, even many Charedi Gedolim conceded that the traditional chronology is correct, most famously R’ Shimon Schwab, and there have been various explanations as to why Chazal record the chronology incorrectly.¹¹ Those that are not committed to an absolute inerrancy of Chazal simply explain that Seder Olam was written hundreds of years after the Persian Empire fell, and the author (traditionally attributed to R’ Yosi) did not have access to historical records, and simply deduced the chronology from the biblical sources, which only mention a few events in those years.¹²

What arises from all this is a glaring issue. How can we hypothesize that Chazal had a reliable oral tradition going back to the first temple era, when they were completely unaware of the history of the transmission itself? This is a serious challenge, and I have yet to see it addressed by any apologist.

to be continued…¹³

1. Maimonides (הקדמה לפירוש המשניות) is quick to point out that there is a major difference between דינים דאורייתא and דינים דרבנן, but I will be focusing on דאורייתא as that is directly relevant to the Mesorah of TSBP.

2. See also חגיגה ג’ ע”ב and דרשות הר”ן י”א. See also here for a fascinating article exploring this idea further.

3. This idea aligns well with the first approach mentioned earlier. According to the second approach one could argue that they are both necessary, as only pilpul can adjudicate between the opposing ideas which are both part of tradition.

4. There is an intriguing theological implication of this idea, which will be addressed in a later installment of the series.

5. To help clarify some of the ideas that will be discussed, here is a brief summary of Second Temple history. The Second Temple period is generally divided into 4 distinct eras.

1.      The Persian Era – From the rebuilding of the Temple in approx. 516 BCE until the conquest of Alexander the Great in 332 BCE

2.      The Hellenic Era – Beginning with the conquest of Alexander in 332 BCE, followed by the rule of the Ptolemaic Empire from approx. 301 BCE-200 BCE, followed by the tyrannical rule of the Seleucid Greeks (of Chanukah infamy) until 167 BCE, which marked the beginning of the Hasmonean revolt

3.      The Hasmonean Era – A period of Judean sovereignty starting in 167 BCE with the beginning of the revolt against the Seleucids, culminating in the establishment of the dynasty in 140 BCE, and finally crumbling during a civil war and then falling to the Roman general Pompey in 63 BCE

4.      The Roman Era – Beginning in 63 BCE when a Roman governor was instated until the revolt in 66 CE which brought about the destruction of the Temple in 70 CE (with a brief period of the Herodian dynasty from 37 BCE to 4 BCE where the Romans instated a Jewish king)

6. This is not comparable to the emergent denominations of the 19^th century, where although Geiger claimed to be returning to prophetic Judaism that did not validate his claim, as we have independent confirmation from numerous historical and halachic sources that Orthodoxy was more in line with Judaism as it was practiced for at least a millennium.

7. Incidentally, the Mishnah in Chagigah names Menachem as the partner of Hillel before he ‘left’. Several Dead Sea documents identify him as the famed mystic Menachem the Essene, who was clearly not a Pharisee.

8. There is a Rabbinic tradition brought in Avos D’Rabbi Nosson that Zadok was a student of Antigonus, the student of Simeon the Righteous, but this dates to the 3^rd Century CE at earliest, several hundred years after the fact. Furthermore, the reasoning given by Avos D’Rabbi Nosson is because they thought Antigonus denied the afterlife, and they concluded that the Rabbis are wrong about this and therefore about everything. This contradicts what we know from several sources, including Josephus and Luke that the Sadducees did not believe in the afterlife. Additionally, as we shall demonstrate later, the entire Rabbinic knowledge of this era was completely wrong, and most reports related to the Persian and Hellenic eras should be treated as mere legends unless they have independent confirmation.

9. Although it is possible to argue that they only emerged as a sect much later, but adapted the name they retained from before. However, being that the primary theologies of the Sadducees were emphasis on ritual worship and rejection of non-priestly authority (based on a literal reading of Deut. 17), it seems rather logical that this had always been the priestly theology, as opposed to the Rabbis who came to wrest power from the older institution of priesthood. (Some have even speculated the term פרושים stems from the fact the they separated from the older establishment, but this is highly contentious.)

(It is worth mentioning that the Hasmoneans took over the priesthood after the revolt, but it seems they were from the family of Zadok, as Matisyahu is called the High Priest in Al Hanisim, which likely dates to shortly after the events.)

10. There are various other lines of evidence to support this model, including analysis of developing themes throughout the traditions of the various sects, holistic approaches which attempt to understand the cultural pressures which induced the revolution (which may have included the power struggles during the Hasmonean dynasty and the apocalyptic fears induced by the Roman conquest), and it seems to me (and is the conclusion of the vast majority of scholars) that in the final analysis Rabbinic Judaism seems to be a development, not the traditional stance.

11. See this essay by Aryeh Leib Englander for a clear explication of the conflict and the evidence. See this book by Mitchell Furst for an overview of Orthodox responses. (Many are apt to mention the response of Alexander Hool, see this review by A.L. Englander. Keep in mind as well that Hool is not even a specialist in that era and he claims to have refuted the model that every single historian confirms.)

12. One might object that if we assume that Chazal were aware of the history, but chose to conceal for various reasons, they could have omitted several generations here as well. However, I find this position highly implausible. The assumption of Seder Olam chronology is used in countless maamrei chazal to make various claims, and if they didn’t actually believe it, there would be no reason to go and make these claims. The most prominent claim I am referring to, is the dating of Megillas Esther to during the exile, which only works in the SO chronology, but not in the traditional chronology. Additionally, the Mishnah in Shekalim asserts that Mordechai came was in the Beis Hamikdash when it was rebuilt, and the Gemara in Megillah says that Mordechai is Malachi, Additionally the Targum says the Darius, who rebuilt the Temple, was the son of Esther. All this suggest that chazal actually believed the chronology of SO, not to mention that the idea of purposeful falsification seems rather fantastical and unnecessary.

13. All seven arguments were originally intended to be in one post, but even that proved too long, so the rest of the seven arguments will be discussed in Part 1b.