Shoftim (Rambam)

The Authority of the Oral Torah

This week’s parshah contains what might be referred to as the “elastic clause” of the Torah—that which extends the authority of Torah to those things not stated explicitly, enabling the Rabbis—the heirs of the “priests and Levites, and the judges who shall be in those days” (Deut 17:9)—to interpret and adjudicate all those new and ambiguous matters that may emerge over the course of time.

The key verse here is “according to the Torah which they shall teach you, and the judgment that they tell do, so shall you act; you shall not turn aside from the thing which they tell you either right or left” (v. 11). This verse immediately raises the issue of Divine/Rabbinical/clerical authority vs. human reason. The first question asked by any modern person reading this verse is: Is one required to follow any and every decision of the Rabbis blindly, no matter how absurd it may appear, or is there latitude for individual human judgment and conscience? Two diametrically opposed interpretations are offered by the Sages themselves: in the Jerusalem Talmud Horayot (1.1) and in the tannaitic midrash Sifre. The former says that one must obey them so long as what they say has some minimal cogency (“that right is right and left is left”); the latter insists that “even if they tell you that left is right and right is left, you must obey them.”

On which side of this dispute did Rambam stand? How does he interpret the verse in question? His attitude to the nature and concept of halakhic authority is developed in Hilkhot Mamrim (“Laws of Rebels,” so called for the law of the “rebellious elder” (which we shall see presently), a treatise appearing in Sefer Shoftim following the laws of the Sanhedrin and of proper juridical procedure, including laws of witnesses. Chapter 1 begins as follows:

1. The Great Court in Jerusalem are the source [or: “essential principle”] of the Oral Torah, and they are the pillars of instruction, and from them law and justice issue forth to all Israel. And concerning them the Torah promised, as is said, “According to the instruction which they shall teach you… [so shall you act]“ [Deut 17:11]—this is a positive commandment. And whoever believes in Moses our Teacher and his Torah is obligated to guide his religious behavior by them and to rely upon them.

He uses the words ‘ikar and amud, echoing the language used for the theological fundaments at the very beginning of Yesodei ha-Torah, to stress that he is dealing here with basic concepts, first principles. He wishes to stress the notion that Oral Law, and the authority of Hazal, is part and parcel of Torah law, nay, of its very essence. Among other things, this is a major polemical point. Rambam lived in an age when Karaite opposition to the “Rabbinates” was very active. The Karaites did not challenge Torah law per se, but the substance and method of its interpretation. Hence Rambam, like Judah Halevi in Kuzari and many other thinkers of their era, devoted considerable energy to polemicizing about the importance of Oral Law and its necessity in order to understand Torah law.

This issue is a perennial problem. Since time immemorial, it would seem, divergent groups within Judaism have clothed their message in terms of alternative Scriptural interpretation. Thus, in the ancient world, there was the controversy between the Pharisees and the Sadducees, which revolved around the interpretation of the Torah text and the validity of the Rabbinic tradition. Early Christianity also challenged Rabbinic Judaism rather than the Bible itself; Paul’s epistles are largely a supposed “midrash,” placing Jesus, rather than Israel and the mitzvot, in the center of his reading of “Old Testament” texts. It is no wonder, then, that one of the central issues in almost every Talmudic sugya is mina hanei milei (“From whence do we derive these words?”)—that is, the establishing of the link between the biblical verses and the various halakhot put forward in the Mishnah.

In the modern world, classical Reform was largely a movement of opposition to the Oral tradition. Although it also asserted that certain Torah passages and laws were superannuated, it primarily challenged the traditional halakhah, i.e., Oral Torah. But unlike the ancient movements mentioned above, Reform differed in that, (a) it emerged at a time of almost unlimited belief in the human intellect, in progress, and in the positive potential of the unfettered human spirit; and (b) its central, barely concealed agenda was a sociological one, viz. accommodation of the Jews to Western, enlightened society. I hasten to add that I refer here mostly to classical, nineteenth century Reform; in recent years it has undergone considerable change and a certain return to “tradition” (practically, not axiologically); since assimilation has been so successful, it cannot but be part of the movement concerned with Jewish survival and continuity. We continue:

2. Whoever does not act according to their instruction violates a negative commandment, as is said, “Do not turn aside from all the things that they shall tell you, either to the right or to the left” [ibid.]. But one is not subject to corporal punishment for violating this proscription, because it is subject [under certain circumstances] to a negative prohibition involving a Court-administered death penalty. For every sage who rebels against their words is subject to death by strangulation, as is said, “and the man who shall act presumptuously…” [v. 12].

Here Rambam introduces the general prohibition against violating the words of the Sages, but first he must explain a special category, the zaken mamreh, “rebellious elder.” (Incidentally, this is a very considerable narrowing down of what might be taken as the literal meaning of 17:12, i.e., anyone who wantonly and blatantly disobeys a Rabbinic edict.) This case refers to a person who was himself a learned, senior sage, part of the system of halakhic authority, who on a certain occasion refused to accept the decision of his colleagues, after the issue had been discussed and voted, and continued to actively promulgate his own position. One could call this a violation of collegiality, as much as anything else; the point is that, once a decision had been rendered, dissenters must submit to the majority decision and accept it as law. The harshness of this law is rooted in the very real fear that, if dissenters are not checked, anarchy and chaos, leading to sectarianism and schisms, will ensue.

The mishnah recounts an incident in which Rabbi Yehoshua disagreed with Rabban Gamaliel, who was the Nasi, i.e., the highest halakhic authority, regarding a certain point in the laws of the new moon. As a consequence of their disagreement, they would either accept or reject certain witnesses, and in turn declare the new moon on one of two different dates, ending up with a different calendar for the entire Jewish people, with holidays falling on different dates. Rabban Gamaliel ordered Rabbi Yehoshua to appear before him in the day that in his reckoning would be Yom Kippur (!) carrying his walking stick and money-bag, as a dramatic demonstration that the latter accepted his authority. When he came, Rabban Gamaliel kissed him on the forehead, saying “Come in peace, my master and my disciple! My master in wisdom; my disciple, in that you have accepted my words!” (m. Rosh Hashana 2.9).

The familiar story of “the oven of Akhnai” in Bava Metzia 59b (see my discussion in HY III: Devarim-Tisha b’Av; Nitzavim; HY IV: Shoftim) carries a similar, if not a sharper message: that God Himself has nothing to say about the halakhah once it was given at Sinai. “It is not in the heavens!” The final authority lies with the majority decision of the Sages. We continue in Rambam:

[This includes]: those things that they received through oral tradition, which are the Oral Torah; those things that they inferred through their own reason, using the hermeneutical rules by which the Torah is interpreted, and it seems to them that the thing is correct; and those things that they made as a [protective] fence for the Torah, and in accordance with what the time requires, namely, the edicts, regulation and customs. Regarding each of these three things it is a positive commandment to listen to them, and one who violates any one of them violates a negative commandment.

It says, “according to the Torah that they shall instruct you”—these are the regulations and edicts and customs which they instruct the public so as to strengthen the law and to correct the world. “And the judgment that they say”—these are the things that they inferred by syllogism [din: the same word is used for the judicial process and for logical reasoning] using one of the principles by which the Torah is expounded. “From all the things that they tell you”—this refers to the tradition that they received, passed down from one person to another.

Here Rambam outlines and defines three distinct components of Oral Torah, and by extension the central functions of the High Court: a) transmitting tradition; b) interpretation; c) legislation. To elaborate: a) the transmission of tradition refers to the idea of Oral Torah in the narrow sense—that is, those things revealed to Moses at Sinai, but not recorded in writing in the Five Books. These were explanations that accompanied the mitzvot, or additional rules. For example, in the Laws of Tefillin Rambam states that, alongside the explicit verses about tefillin, there were given ten halakhot, considered Halakhah le-Moshe mi-Sinai, explaining what they are, how they are made, etc, (Tefillin 1.3ff.); similarly regarding the identity of the four species used on Sukkot (Lulav 7.4), and numerous other examples. b) interpretative, exegetical activity: i.e., the use of logical principles, such as the 13 principles of Rabbi Yishmael, to interpret the Torah; c) legislative—issuing takkanot, gezerot, minhagot. The Rabbis have the authority to introduce new rules, for the welfare of the community or to strengthen the Torah, as they judge fit. Thus, for example, Hillel’s prozbul, enabling creditors to collect debts even after the “release” of the seventh year, as otherwise people would stop loaning money; or, in early medieval times, the Takkanah of Rabbenu Gershom Meor ha-Golah against bigamy.

This passage is an important one in Rambam’s thought. The central idea here, as I understand it, is that there is an element of human input within the Oral Torah—of human creativity, as Sefat Emet puts it. This view is diametrically opposed to that of Rav Sherira Gaon. The dispute between the two revolves around the interpretation of the well-known Talmudic statement that “Everything a venerable sage shall say in the future is a halakhah given to Moses at Sinai.” Rav Sherira Gaon, in his Iggeret, interprets this in a literal sense: that everything was already revealed at Sinai, that no one can ever say anything really new, and that even that which seems to be a hiddush, an innovation, was given in the past to Moses, and was only rediscovered or rearticulated by later sages. Rambam would interpret this in a paradigmatic or metaphorical sense: that the creative interpretation of hakhmei ha-mesoret, the sages of every generation operating within the framework, the rules, the basic axioms and world-view of the tradition, are legitimate heirs to Sinai; that what they say, new as it may be, is somehow inherent in Torah, is an integral, authentic part of Torah.

3. Things received through tradition are never subject to dispute, so that if you do find a dispute regarding a given matter, you may know that it is not a tradition from Moses our Teacher. And things that are inferred by logical principles, if all the members of the Great Court agreed concerning them, then they agreed. And if they disagreed concerning them, they follow the majority, and the law is issued according to the majority….

From here on in he turns to the more practical issues of how the law is decided, etc. Interestingly, nowhere in Hilkhot Mamrim, as far as I can see, does Rambam deal with the practical question of how the halakhah is to be decided in the post-Sanhedrin period. following the dissolution of the Great Court. Once the Jewish community in Eretz Yisrael ceased to exist in any meaningful way, about the fourth century CE, the Great Court likewise ceased to exist, because semikhah, the “ordination” that gave its members their unique authority, could not be passed on outside of the Land (see HY V: Bo on this issue in the context of Kiddush ha-Hodesh). Hence, for Rambam there was no hegemony of halakhic authority, certainly not in the post-Talmudic period. As a result, the concept of gadol hador, the “great one of the generation,” that is, a great sage who was universally accepted as the ultimate halakhic authority in his day, so much touted in certain circles today, was not part of Maimonides’ conceptual world.

As a kind of postscript, an interesting thought about the organization of Hilkhot Mamrim. Following the laws of zaken mamreh and related issues, the last three chapters (5-7) are devoted to the laws of honoring and revering ones parents. What is the underlying concept that unifies these two seemingly diverse subjects? The idea of a natural chain of authority in human society. Children receive the Jewish tradition from their parents (it is thus mimetic, learned by imitation). The denial or rejection of the parents’ authority inevitably cuts the link with the past generations, which is the source of a natural sense of Torah authority. Witness the great break of Jewish tradition in the generation of the Haskalah, which went together with a kind of modern sense of alienation between the generations. Note, too, the great difficulties experienced by “ba’alei teshuvah,” people raised without Jewish religious tradition who return to tradition. First, it is significant that this is an uncommon phenomenon; and, second, as they are generally without a clear, direct home tradition, they must figure out for themselves the hundred and one little details of Jewish life (How long to wait between milk and meat? What prayer nusah to use? Whether to sit or stand for Kiddush? What customs to observe on Pesah, vis-à-vis legumes, gebrochts, etc?) But the converse is also true: that Torah teachers are in some sense like parents. The natural reverence and respect due to them are also due to teachers. “Whoever teaches his neighbor’s son Torah, is as though he bore him.”

Postscript—Thoughts About Faith, Language, and Four Kinds of Unity

Some weeks ago we discussed the differing approaches of Rambam and of the Kabbalah to several theological issues, concerning language and the nature of God. A few further short comments:

1. About the imagery of the Zohar: I perhaps skimmed over the essential point too briefly: namely, that whereas Rambam insists on the impropriety of any anthropomorphic language about God and any hint of duality or multiplicity within the Godhead, the sheer profusion and “fluidity” of Zoharic language opens up the mind to take its language lightly, as suggestive symbols. The essential religious insight—that God is ineffable, such that the human mind cannot really apprehend Him at all—is the same in both systems. But the Zohar sees the human mind responding primarily to the imagination, seeing imagery and even outrageous metaphors as the gate to the emotions and the soul, while Maimonides consistently appeals to reason and logic as the (supposedly) highest faculty of humankind.

2. I suddenly realized, while studying Maimonides’ Guide for the Perplexed with my son, that the word “unity” or “oneness” is used by Rambam in a radically different way than it is in the Bible or in classic Rabbinic thought. Rambam, in arguing that “unity” refers to God’s own nature, to the nature of His being per se, is performing an intellectual tour de force, reshaping the concept of unity in a radically new, abstract philosophical direction. In the course of expounding the familiar phrase in the Shema, “the Lord is One” (Ha-Shem Ehad), he states that, as a logical consequence of this unity, He cannot possibly have a body (which would be susceptible to division into component parts), He cannot engage in actions or have emotions (because those too would be things separate from himself, implying multiplicity), and He cannot even be described through the use of adjectives or “attributes” (except in a metaphorical or allegorical sense), because these too would be something external to, and hence additional to, Himself.

In an overview, one can say that there are three, or maybe even four, different definitions of what is meant by God’s unity in Jewish thought:

I. What some Bible scholars refer to as “henotheism,” meaning, the belief in one supreme god, without denying the existence of others. This, some argue, is the most plausible reading of such verses as “Who is like You among the gods” (Exod 15:11) or “for HWYH is a great God, and a great king above all other gods” (Ps 95:3; cf. 96:4-5).

II. Monotheism: God as the only, exclusive God and Creator of the universe; all other gods are false, powerless, endowed with power only in human being’s distorted imagination.

III. Rambam’s approach: philosophical unity: undivided, composed of uniform substance (not matter), without any possibility of division, without action, emotion, or attributes.

IV. The Kabbalistic, or Hasidic approach: panentheistic unity. There is nothing other than Him throughout the universe; everything is really God. “There is none other than Him” (Deut 4:35; cf. 39) is read, not only as a statement of monotheism in the simple biblical sense, but that He is the only thing there is at all. In a certain sense, one could say that this view is diametrically opposed to that of Rambam.