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

Further Historical arguments

(continued from this post)

Argument 3

What is the source of this idea that there was an oral tradition at all? Well, as described earlier, it’s a common theme throughout rabbinic texts. Therefore, it is worthwhile exploring the reliability of rabbinic traditions in general. There are two issues which must be explored. Firstly, are the Rabbis reliable as historical sources, or are their ideas mostly historiography, legend, and myth? Secondly, how did the Rabbis themselves view their traditions? Are they to be taken literally, metaphorically, or in an entirely different manner?

Beginning with reliability, in Rabbinic literature we find two kinds of historical claims. The first is rooted in biblical hermeneutics and exegesis, and mostly relates to the biblical era. The second are oral traditions, mostly related to events not reported in the Bible. The source of the first type of claims is obviously the bible, so they should not be trusted as historical evidence unless you are of the theological position that their hermeneutics can accurately deduce the real history, so they are not in the same category as regular historical claims. However, the source of the second kind of claims is similar to the sources used by other ancient historians, such as Herodotus and Josephus. Is that sufficient to establish Rabbinic reliability?

Firstly, let the canard that modern historians trust everything in ancient sources lay to rest. Indeed, when we have contemporary reports about events, or when a common theme trickles down into many disparate later sources, we can argue that this lends weight to the truth of the claim. However, when a claim is not contemporary, or it is only reported by isolated sources, especially if that source has a clear bias, we do not treat that as reliable evidence. The first report we have of an Oral tradition is at least a millennium after Moses, and it only appears in Rabbinic sources. Indeed, it was a central idea in Rabbinic theology, so from a historical perspective, it should be understood as a doctrine, not a historical report. Anyone who did not subscribe to the doctrine, even in that era, such as Sadducees and Christians (at least from the 2^nd century), simply denied the doctrine.

Secondly, I would like to mention several different historical traditions in the Rabbinic era and attempt to measure the reliability of rabbinic history. The most obvious example is the early Second Temple period discussed above, where the Rabbis squashed nearly 2 centuries of history into a mere 34 years.

Another example is the Gemara in Avodah Zarah 10b. The gemara addresses a case where a contract was backdated six years, which would normally invalidate the contract for a lien. The system of dating in use was minyan shtaros, which began under the Hellenic empire. The Gemara quotes a Braisa saying that שש שנים מלכו בעילם ואח"כ פשטה מלכותן בכל העולם כולו, that the Greeks ruled in Elam for six years before conquering the rest of the world. Therefore, argues Rav Nachman, the contract is valid because it was dated according to when the Hellenic Empire began, not when they conquered the rest of the world 6 years later.

There are no fewer than four major issues with the history. Firstly, Elam was destroyed by the Persians in the 6^th century BCE, two centuries before Alexander ever travelled to the region. Secondly, Alexanders campaign began in 334 BCE, and he conquered the Levant (which included Judea) in 332 BCE. (This is attested to by Ptolemy I Soter, a general in Alexander’s army, and Aristobolus, and historian who accompanied them, and affirmed by Egyptian records, archeological evidence in Phoenicia, coins found in Judea, and various other lines of evidence.) There are simply no 6 years to add before Judea came under Hellenic rule. Thirdly. Minyan Shtaros does not even date to Alexander, as it only began in 312-311 BCE. Rather, it dates to the founding of the Seleucid empire by Seleucus I Nicator in that year. Alexander’s campaign had been complete by 326 BCE, and he died by 323 BCE. There was nothing significant that could’ve happened in 317 BCE. Fourthly, the region which was originally Elam (in southwest Persia) was captured by Alexander in 331 BCE when Darius fell, which was after he had already conquered the Levant.

Another example is the famous Gemara in Shabbos 21b about the miracle of oil on Chanukah. The topic has been discussed to death on numerous occasions, and this is not the time or place for it, so I will simply state that the most scholars believe is that it is legendary not historical. For a full treatment on the topic, see this masterful piece by Vered Noam.

The Talmud in Avodah Zarah (8b-9a) has a lengthy discussion about the rise of the Roman Empire. The Talmudical chronology is as follows: Rome fought 32 battles with the Greeks prior to 138 BCE, but were unable to conquer them. Therefore, in 138 BCE, they made an alliance with the Jews, and through this convinced the Greeks to give up power in deference to the Torah. They maintained peace with the Jews until 112 BCE, following which they violated their trust and began to rule over Judea, which they maintained until after the destruction of the temple. At some point after 112 BCE, there was another Roman conquest in the days of Cleopatra, and there were two holidays instituted to commemorate both conquests of Rome. During this period, there were two dynasties that were the kings of Judea (seemingly including both the independent rulers and the rulers subservient to Rome). The Hasmonean dynasty ruled from 138 BCE until 35 BCE, and the Herodian dynasty ruled from 35 BCE until after the destruction of the Temple. This is a summary of the information provided in the Talmud.

However, there are some significant historical errors.¹ Firstly, Greece had completely been conquered by Rome through war by 146 BCE. Secondly, the Romans didn’t rule Judea at all until 63 BCE. Thirdly, the Romans did not conquer the Ptolemaic kingdom in the days of Cleopatra; that happened only after her death in 30 CE. Fourth, the Hasmonean dynasty had been completely obliterated by 37 BCE, and had ceased ruling in 47 BCE (or 63 BCE, depending on what you consider ruling).  Fifth, the Herodian dynasty has already begun its rule in 37 CE.

The Talmud in Bava Basra (3b) says that Herod was a slave of the Hasmonean dynasty, and he rebelled against his masters and took control for himself. In reality, he was the son of the Idumean aristocrat Antipater who was aligned with the Roman authorities, and he quelled the Hasmonean rebellion at the behest of Roman commands.

There are various other questionable dates throughout Rabbinic associated with figures such Shimon Hatzaddik, Yannai, Shimon Ben Shetach, Queen Helena, Vespasian, and others, but I believe it has been sufficiently demonstrated that Rabbinic history of the Second Temple era is notoriously unreliable.

So how are we to view Rabbinic History? One option is that they were simply misinformed and were sloppy historians. However, another more favorable option is that they were not historians at all, rather they incorporated bits and pieces of their historical knowledge to develop their theology about the world around them. Thus, the narratives about the Greek Empire, the Roman Empire, the Herodian dynasty, previous Jewish sages, or the history of their own tradition were carefully crafted to depict various entities in a predetermined light. It is not history; it is midrash. Similar to the way they crafter narratives about the Patriarchs, David and Solomon, and other biblical figures (many times rejecting the pshat narrative) to illustrate theological concepts, the same was done for their own history.

Therefore, when approaching Rabbinic statements about the antiquity of the Oral Law and the transmission process, its infinitely more plausible that they are constructed narratives, not actual history. The same kind of theological mind that introduced the idea that אבות קיימו כל התורה אפילו עירוב תבשילין andכל מה שתלמיד ותיק עתיד לחדש הראה הקב"ה למשה ² also introduced the notion that שתי תורות ניתנו למשה בסיני. Is it literally true? Clearly not.³

Argument 4

When we analyze the core elements of the doctrine of the Oral Law in Rabbinic texts, we can trace a clear historical development over the course of multiple generations. This would suggest a developing tradition, rather than ancient tradition that was simply recorded at a later time.⁴

For example, the Tosefta in Sanhedrin (7:5) says that Hillel the Elder listed 7 hermeneutical laws in front of the B’nei Beteira. However, in the famousברייתא דר' ישמעאל, which was at least a century later (even if we accept the Rabbinic attribution to Hillel and R. Yishmael) he lists 13 methods. A generation later, R. Eliezer the son of R. Yosi Hagelili listed an astounding 32 methods! Evidently, there was a progression over time, with each generation refining and adding new methods.

(As an aside, the fact that Hillel had to teach the 7 methods to the B’nei Beteira should be slightly troubling. After all, weren’t they the leaders of the Sanhedrin? If there was indeed a tradition stretching back, how could they have not been aware of this?)

The Tosefta in Shevuos (1:4) introduces a disagreement between R. Yishmael and R. Akiva. R. Yishmael used the method of כלל ופרט וכלל, while R. Akiva disagreed and used the method of ריבוי מיעוט ריבוי. (For the former, the rule is אין בכלל אלא מה שבפרט וכלל האחרון בא לרבות, while in the latter הפרט בא למעט וריבוי האחרון בא לרבות הכל חוץ מדבר אחד.) This disagreement has dozens of ramifications throughout the Talmud. How could there have been a disagreement about the basic method of exegesis? Even if we reject Maimonides’ assertion that anything that was from tradition was universally agreed upon, surely the method was transmitted reliably?

In general, scholars have identified two streams of thought in early Rabbinic literature. The school of R. Yishmael advocated an emphasis on the literal reading of the text, and in general did not allow for expansion of the law. Therefore, in order to accommodate traditions which were not in the text, they developed a complex, but systemized hermeneutical method to extrapolate further laws while still remaining grounded in the text. However, the school or R. Akiva was more expansive in its interpretations, allowing a more allegorical and responsive reading of the text, which removed much of the need for complex hermeneutics. This is culled from a comprehensive overview of Mishnah, various Braisos, and halachic Midrashim. Being that it is a very technical and overarching task to demonstrate this, I will simply refer the reader to Abraham Heschel’s classic workתורה מן השמיים באספקלריה של הדורות (חלק א') where he thoroughly develops this idea. If this model is correct, it is very difficult reconcile with a detailed transmission process going back generation before R. Yishmael and R. Akiva.

(Additionally, the traditional distinction between Beis Shamai and Beis Hillel as being stricter or more lenient, which align with the personality of their founder is rather puzzling. In modern day halacha one can easily be a machmir or a meikel as we have plethora of sources with multitudes of opinions, and one can either forbid relying on one opinion over another or alternatively allow one to rely on a specific opinion. However, in the times of the Mishnah, this was rarely the case. If it was simply a matter of tradition, hermeneutics, or dispassionate logic, it’s difficult to see how one can tend to be one over the other. There have been several traditional explanations for this, but if one views it as a developing tradition, it is much easier to understand the different approaches of responding to real-world challenges. However, this is highly speculative and arguable.)

(There is an entire field of Talmud study called the Revadim (layers) approach. This method attempts to deconstruct the Talmud as it developed throughout the Talmudic. Some of the findings include stylistics differences, such as usage of language, method of argumentation, and internal structure in the Yeshivos. However, some of the findings presents layers of development of the laws themselves. I have not researched this area, but if it is correct, it would also be damning to the idea of a complete oral law transmitted through the ages.)

When we analyze the methods of hermeneutics themselves, to a modern mind they seem rather arbitrary and strange. Obviously, if they were divinely dictated to Moses, this does not represent a challenge at all. However, if we focus on the larger context of hermeneutical methods in the Greco-Roman world, they begin to seem far more logical. If this can be demonstrated, it would strongly support the hypothesis that they emerged during that particular era.

In the Hellenic world, there were large schools of Grammarians (which corresponds to the term סופרים in Kiddushin 30a), most notably in Alexandria in the third and second centuries BCE, who developed various hermeneutical tools based on philology and logic, and they used these to interpret the books of Homer and other sacred texts. Some of the methods they used corresponded with Greek methods, such as קל וחומר (known in Latin as a fortiori, or from the stronger), גזירה שוה (known in Greek as synkrisis pros ison, or comparison to the equal), גימטריא and נוטריקון (which are themselves Greek terms). Many of them don’t correspond directly with Hellenic methods, but the general approach to interpreting texts used many of the same fundamental elements.⁵ While hermeneutics existed in the biblical era as well, particularly in the interpretation of dreams, incantations, and prophecies, they did not resemble the Hellenic system at all, which were largely lexical constructions and logical inferences. (Incidentally, many of the Akkadian and Assyrian methods seem to fit fairly well when used on cryptic biblical prophecies.)

Argument 5

There are numerous Halachic concepts that seem to have been greatly influenced by Greco-Roman law, not just in the aesthetics, but also in much of their content. This would suggest that these laws arose specifically during that era, and did not originate from a different period.

Some of the influences are arguably aesthetic in nature, such as the Passover Seder which was modeled closely after the Greek Symposium (with the exception of the licentiousness which usually followed, which is likely the intent of the Mishnah אין מפטירין אחר הפסח אפיקומן,) the institution of the Synagogue, which resembled a Roman Basilica, (and indeed, in the earliest references to Synagogues in Rome and Alexandria we find they were utilized for purposes that were more analogous to the normative Roman uses,) the Greek model of paradosis, or schools of thought where students would receive traditions from a teacher, which closely resembled the early rabbinic institutions before the yeshivot were established, (this term specifically is used in the New Testament to describe Pharisaic schools,) and the concept of a Bima (a Greek term) which was used to read various texts in public. However, being that these don’t necessarily affect halacha itself, they don’t seem to present an issue. (Although it may be argued the creation of schools is the origin for the religious focus on Torah, which is not apparent in Tanakh.)

One institution which has much halachic import is the Sanhedrin. The term itself is a Hebrew transliteration of the Greek term Synedrion, and the function was largely the same. They were a group of elders or scholars, typically with high political standing, who convened to debate matters of law, legislate new laws, and administer the judicial process. (It was distinct from the Assembly, which was a much more democratic process.) Aside from legal matters, they were generally active in the political realm as well, including assisting with war efforts and collecting taxes. Similarly, Josephus records that Pontius Pilate, the Roman procurator of Judea (the one who had Jesus killed), depended on the Sanhedrin to collect taxes for him.

However, this is insufficient to demonstrate that the entire institution was borrowed from the Greek version. It may have just been a standard system which they both used, or possibly their exact involvement evolved due to Hellenic influence, but was nevertheless an authentic Jewish tradition.⁶ An argument can possibly be made from the fact the early second temple texts make no reference of such a body, and the earliest record of the Sanhedrin is towards the end of the Seleucid empire. Additionally, Josephus reports that in 57 BCE, Aulus Gabinus, the Roman Governor of Syria-Judea, abolished the central Sanhedrin, and created 5 districts each with their individual Sanhedrins. This is more in line with the idea of Sanhedrin as a political entity, not a halachic one, although this point remains contentious.

A stronger case for Greco-Roman influence can be made from several specific halachos. One example is the Mishna in Rosh Hashana that lists four people who are disqualified as witnesses; a gambler with dice, a pigeon racer, one who lends with interest, and one who engages in trade with shemitta produce. (The Talmud in Kiddushin extends to an ignoramus, and one who eats in the marketplace.) This concept has always been rather puzzling. Although the rationale given is because they have similar tendencies as thieves, the list seems rather arbitrary, and the are no earlier sources that support this reasoning. It has been argued that this is adaptation of the Roman laws of infamia, where certain professions carried a significant stigma, which was based on a Hellenized understanding of personal honor and self-control, leading to both social and legal ramifications. Aside from the strong similarity in structure and the list, additional support can be found in the terminology the Talmud uses. The phrase חזרה גמורה (for the rehabilitation of such people) is found nowhere else in rabbinic literature, but is an exact parallel for the Latin term for this, in integrum restitutio. Several other laws have been identified as originating in Roman law, including חזקת שלש שנים, many procedures related to gittin, several clauses in the ktubah (although this may simply be a matter of convention), and the overall structure of many monetary and slavery laws. For a fuller treatment on the topic see here.

(Interestingly, many scholars have suggested that the concept of biblical canonization was modelled after the canonization of the books of Homer. If we take this analogy further (and there are various arguments to support this idea), the entire concept of oral law would align very well with the early Roman concept of jus scriptum and jus non scriptum (written and unwritten law), which were explicitly referenced in early Roman legal literature. Additionally, Roman law established the concepts of jus civile and jus gentium, meaning the law of the citizen and the law of the foreigner, which strongly parallels the Rabbinic concept of Noahide laws.)

Argument 6

There are several findings of archaeology that are in tension with Rabbinic law. The esrog has been definitively proven to have originated in Persia, and until the 3rd century BCE it was only accessible to the nobility. The earliest record of esrog pollen in Judea is in the 5th century BCE, suggesting it was brought back from Persia after the exile. Even after that it is exceedingly rare in the region until the late second century BCE.⁷ This seems to contradict the Rabbinic identification of פרי עץ הדר as the esrog. (Indeed, in references to the mitzvah in Nehemia and in the Maccabees 1, the esrog is omitted from the list.)

There have been numerous mikvaos discovered throughout Judea in the late second temple era (from the 2nd century BCE and onwards). However, although there have been a large amount of excavations in sites which were inhabited in the previous centuries, there has been very little found in terms of anything resembling a mikvah.⁸

The question has been raised why we do not find any biblical books from before the Dead Sea scrolls (beginning in the 3rd century). This is usually countered by pointing out that parchment tends to disintegrate. However, leather items last significantly longer, and leather tools have even been found dating back to prehistoric times. However, prior to the caves in Qumran, there hasn’t been one pair of tefillin found, notwithstanding the vast amounts of other artifacts including those made of leather which have been found. These findings would seem to indicate that these practices were far later in origin.

to be continued…

1. Here is a brief summary of the relevant history. Rome and Greece fought four wars between the late 3rd and early 2nd centuries BCE, and by 146 BCE both the Macedonian empire and the Seleucid empire were dismantled and they were incorporated into the Roman Empire. However, the Ptolemaic Empire in Egypt remained intact, and the Levantine regions which were previously under the rule of the Seleucids remained independent. Rome did not enter the Levant until 63 BCE, when General Pompey took sides in the Hasmonean civil war and subsequently took control of the region. They installed a Roman governor, but allowed Hyrcanus II of the Hasmonean dynasty to act as a Roman puppet until 47 CE. In the following years, Rome attempted to conquer the Ptolemaic Empire, which led to the famous encounter between Julius Caesar and Cleopatra in 48 CE, but eventually they allowed Cleopatra to remain in power. After she died in 30 CE and there was no clear successor to the throne, the Romans took the opportunity to invade after. In the meantime, after the death of Hyrcanus in 47 BCE, Herod and his father, Antipater, began assisting the Romans to quell the remaining Hasmonean family members, and was appointed king in 37 BCE. He and his descendants ruled with varying degrees of power and on limited regions until the end of the 1st century.

2. Which itself indicates a polemical/allegorical style in this whole concept.

3. See this article by Rabbi David Weiss Halivni where further develops the idea that these statements were understood as hyperbole. I hope to analyze this idea more in depth in a later installment.

4. Some scholars attempt to trace a gradual development in the idea of what tradition itself meant, and some of it has merit, but much of the claims are highly speculative. In a later installment I will discuss this further.

5. Hermeneutics were not specifically limited to sacred texts (although they were stretched further and more developed there). They were also applied to other works of literature, and even to civil contracts (similar to the idea of תפוס לשון ראשון or תפוס לשון אחרון in the Talmud).

6. Interestingly, both the NT and Josephus state that the head of the Sanhedrin was the High Priest, unlike the rabbinic claim that there was a Nasi and an Av Beis Din.

7. Generally the field of archaeobotany (the archaeological study of ancient fruits) is widely considered to be highly reliable, significantly more than standard archaeology.

8. It has been countered that when living in rural areas there were many natural bodies of water available, however even in then-urban areas there have been no findings, including in Jerusalem and in the area of the Temple Mount.