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

Are oral traditions reliable?

(continued from this post)

Argument 7

Oral traditions are notorious for their unreliability. There has been much discussion on this topic regarding oral histories, and scholars have in general differentiated between the major events and smaller events or details. When studying various traditions within cultures that primarily transmitted their history orally, such as African and Native American tribes, or many ancient civilizations, they often (but not always) agree on the monumental events, such as the existence of major leaders, natural disasters, and other significant points in their histories. However, when it comes to minor anecdotes, or even the details surrounding the major events, it is rare to find several traditions which converge unless they have known common source.

There are several distinct reasons that researchers have hypothesized this occurs. This includes the fallibility of our memories, which can cause us to forget or misremember events, errors in transmission, colloquially known as the broken telephone problem, or fragmentation and simplification, which is when the traditions are condensed for easier retelling, which often can lead to misrepresentation of the facts.

However, aside from the limitations in culture’s abilities to properly transmit facts, there is another major aspect which arguably corrupts the original traditions much more. Traditions are generally cultural icons which represent the common themes in a given civilization, and they aren’t transmitted simply for historical purposes, but rather are woven into national and cultural identities. They are developed into grand narratives which personify the ideals of the people and exemplify their own understanding of themselves as a nation. Therefore, oral traditions are hardly preserved intact as the culture evolves, and just as the stories take on new meanings in each subsequent generation, the facts themselves are subtly distorted to reflect the updated values. When this occurs on a macro level, it can begin the process of myth formation, where even major ideas can be invented out of whole cloth to reflect the contemporary notions, but even on a micro level old ideas can turn hardly recognizable after significant cultural shifts. (Another similar issue is known as audience driven adaptation, where each storyteller crafts the stories to resonate with his particular audience.)

When approaching legal traditions, both of these limitations would apply as well. However, the second point in particular seems to threaten the entire paradigm on a far greater scale. Laws are not historical facts; they are perceptions of right and wrong which directly reflect or influence the cultural climate of the civilization possessing them. In fact, in all known cultures in world history, there have been only two rough categories of law that have been observed. Either the society possessed some form of written law, where the law is codified and binding, or else they only possess what is known as common law, where the laws are simply general principles and can be applied by the judges as they see fit. Understandably, common law is far more fluid and prone to the everchanging zeitgeist, as it never even claimed to be binding in a concrete sense. Why is this so? How come we don’t find binding law traditions that were transmitted orally as we do histories? The answer seems to lie in the virtual impossibility in maintaining concrete legal systems without reference to a clear written code, as the cultural climate will quickly erode any semblance of the original form of the law.

Chazal claim a comprehensive oral tradition which contained a complex legal system which survived fairly well for ever a millennium; from the giving of the Torah in the mid-late second millennium BCE through the composition of the Mishna in the 2nd century CE. How plausible is this claim? In light of the above, aside from the difficulty in preserving the innumerable details accurately, it seems highly untenable to posit a mostly stagnant legal system which weathered the storms of a thousand years of history without being codified in a written document. It is worth bearing in mind that this era included the Babylonian exile, the Hellenistic revolution, underwent several major regime changes which had clear influences on various non-legal Jewish traditions, and had several major declines in religious practice as reported in Tanach or other later sources. Is it possible that the complex halachos of a sukkah or yibbum remained intact?

Rabbi Lawrence Kelemen attempts to address this issue by introducing several safeguards which were used throughout the ages. This includes intense memorization, several simultaneous parallel traditions, complex mentor/student regulations among others. However, there is no indication in Rabbinic sources of many of the safeguards he mentions, and there is certainly no indication of this process at all in earlier sources, including within Tanach itself. (In fact, throughout the entire Tanach aside from Mishlei we never find the concept of a Rebbi and a Talmid at all!) The presentation of the Rambam in describing the Mesorah also does not seem to support this notion, he describes the mesorah from one person to another person many of which took place in very short periods of time (although it’s possible he did not mean this was the exclusive Mesorah). Additionally, the descriptions in Chazal which describe the process of the mesorah in their time strongly mirror the Hellenic system of paradosis, which would suggest they only began after the Hellenic era.

Additionally, positing a special system which only existed within the Rabbinic tradition to defend the reliability of the system itself seems unjustified, as it is frontloading the hypothesis with more information than the hypothesis itself would suggest, and is included in the fallacy of begging the question (i.e. it assumes the conclusion in the premise). Chazal claimed to have an oral tradition, and this should be treated with the same suspicion as we would any similar oral tradition, and does not deserve a special defense of the systems uniqueness with no external support.

Moreso, this entire approach only addresses the broken telephone issue, as it safeguards the tradition from being distorted through inaccuracies. However, the other objection raised that cultural narratives are constantly shifting, particularly with regard to legal traditions, is not addressed at all by these safeguards. Why should we assume that this was a civil law code at all as opposed to common law before it was codified if there are no parallels in any other cultures? And why should we trust that the transmitters would not reshape the traditions to reflect the changes in the culture, whether consciously or subconsciously, if there were no textual references? Overall, I think Kelemen’s defense is an utter failure.

(This concludes the historical arguments pertaining to the Oral Law, in the next segment we shall deal with textual support and criticisms.)