Is Torah Sh'Baal Peh from Sinai, and does it matter? Part 2a

Textual supports and their criticisms

Until now we have dealt with a historical analysis of the origin of Torah Sh’Baal Peh, now we shall deal with textual arguments for and against the notion the Torah was complemented with an Oral Law. There are various supports given by proponents of the Sinaitic origin of TSBP. I shall begin with the weakest arguments, and move on to the stronger arguments.¹

1. At the conclusion of Leviticus (in 26:46) it statesאלה החקים והמשפטים והתורת אשר נתן יהוה בינו ובין בני ישראל בהר סיני ביד משה. What is referred to by תורות? Isn’t there only one Torah? Presto, we have a biblical confirmation of the doctrine of a dual Torah.

However, this argument could not have been more ignorant. Aside from the fact that it says אלה, which strongly suggests that it is referring only to the commandments listed earlier, the verses in Leviticus are rife with the phrase -זאת תורת ה, where each set of laws is referred to as a separate Torah. (See for example Lev. 6:2, 6:7, 6:18, 7:1, 7:37, 11:46, 12:7, 13:59, 14:2; 14:32, 14:54-57, 15:32, Num. 5:29-30, 6:13, 6:21, 19:2, 19:14, 31:21.) Thus, the verse is referring back to all the individual law codes included throughout Leviticus and emphasizing that they were all given at Sinai. (This interpretation is actually the interpretation of Rabbi Akiva in the Sifri.)

2. The Torah does not contain vowelization or punctuation, rendering many verses unclear and in need of an accompanying commentary. The common example given is the verse לא תבשל גדי בחלב אמו, which can be read חָלָב, meaning milk, or חֵלֶב, which means fat. How do we know which is the verse’s intention? There must have been an accompanying tradition which contained the proper way to read the Torah.

Even if this argument were to succeed, it would be grossly insufficient to establish the existence of an oral law, as it would simply show the existence of a tradition how to read the text itself. However, the entire argument fails miserably regardless. All semitic languages such as Akkadian, Aramaic, Arabic, Canaanite and others have abjad writing systems, as they only contain consonants and not vowels. Modern Hebrew as well is generally written with no vowels, as well as most classical Jewish texts. Nevertheless, this does not seem to necessitate a tradition on how to read the words, as the reader is expected to read it properly based on context.

In the specific example of לא תבשל גדי בחלב אמו, there are various clues that can guide one to read it as milk. Firstly, the Torah elsewhere prohibits the consumption of fat, and it would be irrelevant to prohibit fat being eaten with milk. The second would be the juxtaposition of the word חלב to the word אמו would suggest that it is referring to milk, as milk is associated with the mother, while fat is common to all members of the species.

3. The verse in Issaiah 59:21 states the following: ואני זאת בריתי אמר ה' רוחי אשר עליך ודברי אשר שמתי בפיך לא ימושו מפיך ומפי זרעך ומפי זרע זרעך אמר ה' מעתה ועד עולם. What is My Word that I have placed in your mouth? מכאן לתורה שבעל פה מן התורה.

However, even within the context of the verse itself, it clearly lends itself to a simpler explanation. What is רוחי אשר עליך? It can’t be referring to prophecy, as the continuation of the verse is that it will remain with your descendants forever, which hasn’t occurred. Therefore, it must be referring to the general tradition or divine favor which Israel has merited. Why than is it called a spirit? Clearly, it is a description of the power of said tradition of divine favor, but it is not introducing a new concept. The same should follow for דברי אשר שמתי בפיך. Israel carries the divine Word through the Torah or through its prophets, and it needn’t be referring to a separate extratextual tradition.

4. The verse in Deut. 12:21 states כי ירחק ממך המקום אשר יבחר יהוה אלהיך לשום שמו שם וזבחת מבקרך ומצאנך אשר נתן יהוה לך כאשר צויתך ואכלת בשעריך בכל אות נפשך. What is כאשר צויתיך referring to? There are no other passages which describe further instructions for the method of שחיטה? Clearly there were details that were omitted from the text, and were only transmitted through an oral tradition.

However, if you look at the earlier passage in verses 15-16 it states as follows: רק בכל אות נפשך תזבח ואכלת בשר כברכת יהוה אלהיך אשר נתן לך בכל שעריך הטמא והטהור יאכלנו כצבי וכאיל רק הדם לא תאכלו על הארץ תשפכנו כמים. The above verse is a few lines later, and it’s reiterating the distinction between sacrifices which can only be offered in the temple and ordinary animals which may be slaughtered anywhere. Read independently, it seems to either be referencing the fact that this was commanded earlier, similar to what we find in many cases where when a commandment is fulfilled and the verse comments כאשר צוה ה', or alternatively it’s referencing the additional laws included above regarding כיסוי הדם and הטמא והטהור יאכלנו.

5. In Deut. 17:8-13 the Torah describes a system of dealing with disputes, and prescribes going to the priests and judges by the temple, and then commands ועשית על פי התורה אשר יורוך לא תסור מן הדבר אשר יגידו לך ימין ושמאל. While this is not a direct reference to the oral law, this is often used to provide justification for following Rabbinic laws. Some take this further and argue that their authority emanates from the fact that they have a Sinaitic tradition which is TSBP. Being that this is pure speculation, and is actually contradicted by many traditional sources (see the sugya of זקן ממרא in Sanhedrin, and see דרשות הר"ן דרשא י"א), I do not find it worth addressing, however I still find the basic point worth addressing.

There are two strong textual objections for using this verse as a basis for the authority of rabbinic law. Firstly, the verse does not say that they have the authority to prescribe any extratextual laws, rather it is a system to address disputes, as is clearly presented at the onset - כי יפלא ממך דבר למשפט בין דם לדם בין דין לדין ובין נגע לנגע דברי ריבת בשעריך. This is comparable to the judicial systems in modern governments, where they have the power to delineate the parameters of existing laws and to adjudicate between disputes, but is distinct from the legislative branches which have the authority to introduce new laws. If one denies the historicity of the oral law, it’s difficult to argue that the entire corpus of halacha can fall into the category of delineation and adjudications, as its fundamental principles seem to constitute new legislation.²

Secondly, the verse grants this authority to the Levite priesthood, while the rabbis were not necessarily priests. One might argue that this is an irrelevant point, but if we contextualize this passage within the greater attitude towards priests throughout the Torah and in the wider ancient Near East, the specific choice of priest seems very purposeful and specific. Priests in the ancient Near East were the religious leaders, and they retained absolute control over all religious practices. It is not for no reason that the Priests are referred to as the teachers of law in Chazal, and the Torah specified them for all sacrificial worship and other roles, such as going out to the Egla Arufa and pronouncing the status of Tzaraas.

Now, I will admit that the language of the Torah seems to include other non-priests as well, as it states - ובאת אל הכהנים הלוים ואל השפט אשר יהיה בימים ההם. However, I would nevertheless argue that שופט is an elaboration of the identification of the authorities; one must go to the priests, and amongst the priests the ones who are the judges. This seems to be the case from two other verses. The first is in Deut. 21:5 which states - ונגשו הכהנים בני לוי כי בם בחר יהוה אלהיך לשרתו ולברך בשם יהוה ועל פיהם יהיה כל ריב וכל נגע, which differentiates between the זקני העיר who come and the priests as the priests have a special status above the elders. The second is Deut. 33:10 – וללוי אמר וגו' יורו משפטיך ליעקב ותורתך לישראל, which bestows an authority to the Levites alone. (The wording of או אל השפט in the end of the passage can be interpreted similarly.)

6. The strongest argument in defense of the oral law is the clear need for further elaboration on biblical laws. Many verses are unclear and can be interpreted in many different ways, and many laws are vague and their applications need elucidation. The examples usually pointed out are tefillin and sukkah. The Torah says to wear tefillin, but gives no indication of what they are, and commands us to sit in a sukkah, but offers no instructions as to its construction. However, thes kinds of examples are highly unconvincing. This assumes a priori that mitzvos are supposed to function in the manner halacha prescribes, with all its particular details, which then raises the issue that the biblical text alone doesn’t offer this. Who’s to say that there needs to be all these rules? A sukkah is a hut, and it only takes a bit of common sense to determine if something fits into that category or not. Regarding tefillin, even assuming the verse is meant literally and not metaphorically, it’s simply a commandment to wear a ritual amulet containing הדברים האלה referenced earlier, which can either mean the specific words of שמע ישראל, or more likely refers to a general statement of commitment to God (which seems more likely as the same words are used in the other parshios as well). In this light, most laws are straightforward and self-explanatory. A get is a document telling the wife that she is sent away, an animal can be slaughtered in any way so long the blood is covered and not eaten, a utensil which touches a sheretz needs to be washed before it becomes pure again, a blue string must be placed on the corners of clothing, and a convert is simply a foreigner who settles in Israel and integrates in Israelite society.

Nevertheless, the Torah does seem rather vague regarding many laws. What exactly constitutes work on Shabbos? How are we do determine if a witness is lying to render him an עד זומם? From what age is a child obligated in מצות? When is מלקות to be administered? Additionally, many verses are unclear as to what they mean. What is referred to by לא תלך רכיל בעמך לא תעמד על דם רעך? Is צמר ופשתים simply an example of two materials for שעטנז, or does the prohibition only apply for that specific mixture? Is it prohibited to cook a goat in the milk of an unrelated goat, or is it only forbidden in the milk of its own mother?

I believe the answer to this is a combination of five primary factors. First, we must consider each verse in its contemporary cultural context. Virtually every biblical law either existed in a neighboring society at the time, or was a foreign custom which the Torah chose to forbid.³ This can shed much light on the precise nature of the commandment in question. Any Israelite reader would have immediately understood what many of these verses are referring to. The commandment of בשר בחלב and שעטנז would likely be naturally understood by someone from that era. Even many laws that were particular to the Israelites, there is still much to be gained with a better understanding of the society in which these laws were given. For example, in modern society when one person says to another person, “I’m not working today”, the meaning is self-evident and the parameters are relatively clear. What did this mean in ancient societies? What was referred to as מלאכה? What did it mean to be הולך רכיל? Additionally, the theological meaning of the laws, although they may seem puzzling today, to a mind accustomed to various ancient rituals they would have often been immediately recognizable and they would be fairly well understood.⁴

Second, the textual context can also be used to provide clues to the exact meaning of the laws, such as the clues mentioned above with regard to בשר בחלב. Third, the law codes in the Torah do not necessarily need to be all encompassing. For example, the laws of kinyanim, kiddushin, testimony and judicial process, although they are incorporated into halacha in the Talmud, they may have been subject to more local or customary laws and procedures at the time of the giving of the Torah, but were recognized as binding with regard to religious law as well. Fourth, many of the biblical laws can be viewed as common law as opposed to civil law, where they can be applied with the discretion of the judges and dependent on many factors, and as such, legal concepts such as סימני גדלות would be irrelevant. Fifth, in cases where there still remained the possibility for dispute, the Torah itself provides a process of adjudication through going to the priests in the temple as discussed earlier.

Being that many of these factors were only accessible or relevant during the biblical era, there still remains an issue how to approach biblical law at a later period in time. Some present this as a defense of the Halachic system, but since it concedes the non-Sinaitic origin of the oral law, it is not relevant to address it right now.⁵⁶

1. These are all arguments I have seen from apologists or traditional sources defending the Sinaitic origin of the oral law. If there are any I have not included, please mention them in the comments, and I would be happy to include them (even if I do not have a rebuttal).

2. For an elaboration on what is contained within the oral law, see the discussion in the comments on the previous post.

3. This is a major topic in it’s own right, but this is not the right place to elaborate. For hundreds of examples of these parallels, visit thetorah.com.

4. Visit thetorah.com for many examples of this as well.

5. This was likely a contributing factor in the development of the oral law in the post-biblical era.

6. All of these arguments, even if they succeed, are insufficient to support the form of the Oral Law as we have it, as shall be discussed in a future post, The Novelty of The Oral Law.