Disputes: A Proof Against Torah sheBaal Peh?

Or the opposite?

Eine Streitfrage aus dem Talmud' (A Talmudic Dispute) 19th century Oil painting by Carl Schleicher (PD-Dorotheum/Wikimedia Commons)

Many people think that the existence of disputes in the Mishna and Talmud points to the non-viability of the Mesorah of the Oral Law. If Tannaim and Amoraim can debate such fundamental matters, such as how to recite Krias Shema, the text of Shemoneh Esrei, how Tefillin look, and hundreds or thousands of other examples, then this shows that the chain of transmission is faulty, and that such matters could not have been preserved orally for a millennium and a half. Or so they imagine. But the truth is precisely the opposite. If there was no chain of oral transmission, then what exactly were the Tannaim and Amoraim debating? What Tefillin? What Krias Shema? What Shemoneh Esrei? Where did these things come from? There are no scriptures describing the recitation of Krias Shema (the recitation is not explicitly instructed in the Torah), how to make Tefillin, and how to pray. And yet we know from the Mishnah that they were debating these things for over two centuries before the Mishnah was written. All of these and countless other halachos must have been transmitted orally in order for there to be anything to have a debate about.

But the truth is much more than that. Our Torah sheBaal Peh goes far beyond simple mimetic transmission of rituals, prayers, and stories. The Mishnah is full of detailed legislation and disputes about the fine points of matters that were not commonly practiced (and throughout this article, I will only use examples from the Mishnah, which is considered the most reliable record of our Oral tradition):

[One is liable if] he carries out sufficient wine to pour a goblet [of wine]; or milk equal to a mouthful; or enough honey to spread upon a sore; or enough oil to anoint a small limb; or enough water to rub an eye salve. And the [measure] for all other beverages is a quarter [of a Log - a Biblical unit of liquid measurement], and [the measure for] all [liquids] that are poured out [but not drunk] is a quarter [of a Log]. Rabbi Shimon says: [The measures for] all [the items listed here] is a quarter [of a Log], and they said these [various] quantities] only for those who store them.

-Mishnah Shabbos 8:1

If there were] three brothers married to three unrelated women, and one of them [the brothers] died, and the second brother performed Ma’amar [for the widow] and dies, they [his two widows] perform Chalitzah but Yibum is not performed for them, as it is said (Devarim 25:5), "And one them dies... her husband's brother shall go in to her," [that refers to] one who is bound to one Yavam, but not to one who is bound to two Yevamim. Rabbi Shimon says: He may perform Yibum for whichever [woman] he wants and undergo Chalitzah from the other one.

-Mishnah Yevamos 3:9

[For] an animal that has difficulty giving birth, and the fetus protruded its fore-leg, someone cut it off, and afterward slaughtered its mother, the flesh [removed from the fetus] is pure. [If] someone slaughtered its mother and afterwards cut [the fore-leg off], the flesh [has the impurity level] of touching a nevelah [an improperly slaughtered animal of a permitted species],” in the words of Rabbi Meir. The Sages say, "[The impurity level] of touching a slaughtered terefah [an animal with a mortal condition such that it would die within one year]. Just as we find for a terefah that its slaughtering purifies it, so too the slaughtering of an animal purifies the [protruding] limb.” Rabbi Meir said to them, "Not so, for if the slaughtering of a terefah renders clean that which is part of its body, does it render clean the limb which is not of its body?” From where is it derived for a terefah that its slaughtering purifies it? An unfit animal is forbidden for eating [and] so too a terefah is forbidden for eating. Just as an impure animal is not purified by its slaughter, so should a terefah not be purified by its slaughter? No. If you say [so] about an unfit animal which did not have a moment of validity, would you say [as such] about a terefah which had a time of validity? Take away what [the argument] you brought. Behold, if it is born as a terefah from the womb, from where would we derive this? [Rather], no. If you say about an unclean animal that for its kind is not [affected] by slaughtering, would you say it for a terefah whose kind [affecting] by slaughtering? Born alive at eight [months], its slaughtering does not render it pure, for its kind is not [affected] by slaughtering.

-Mishnah Chullin 4:4

If [hostile] gentiles, or an evil spirit [a fit of insanity], caused a man to go out [of the techum - the area around a person or community within which it is permissible to travel on Shabbat], he must not [when recovering his own free agency] move further than four amot [a specific unit of length]; if they [the gentiles or the fit] bring him back [within the techum], it is as if he had not gone out. If they carried him into another town, or put him into a pen or fold [for cattle], Rabban Gamaliel, and Rabbi Eliezer ben Azariah say, "He may walk [throughout] all of it." But Rabbi Yehoshua and Rabbi Akiva say, "He only has four amot within which to move." It once happened that they [these four sages] came from Perendisin, and their ship went out to sea [on Shabbat]: Rabban Gamliel and Rabbi Eliezer ben Azariah walked [throughout] all of [the vessel]; but Rabbi Yehoshua and Rabbi Akiva did not move beyond four amot, since they wanted to be strict upon themselves.

-Mishnah Eruvin 4:1

With regard to one who has two groups of daughters from two women, i.e., one group of daughters from each wife, and he said: I betrothed my elder daughter to someone but I do not know if I meant the eldest of the older group of daughters, or the eldest of the younger group of daughters, or the youngest of the older group, who is nevertheless older than the eldest of the younger group, all the daughters are forbidden, except for the youngest of the younger group. This is the statement of Rabbi Meir. Rabbi Yosei says: Despite the uncertainty, they are all permitted except for the eldest of the older group, as one who says elder without further specification means the oldest of them all. Similarly, if one said: I betrothed my younger daughter, but I do not know if I meant the youngest of the younger group, or the youngest of the older group, or the eldest of the younger group who is younger than the youngest of the older group, they are all forbidden, except for the eldest of the older group. This is the statement of Rabbi Meir. Rabbi Yosei says: They are all permitted except for the youngest of the younger group.

-Mishnah Kiddushin 3:9

If [the corpse] was found buried underneath a heap of stones, or hanging on a tree, or floating on the surface of the water, they would not break [the heifer’s neck], as it says: “In the earth” — and not buried underneath a heap of stones, "fallen" not hanging on a tree; “In a field” —and not floating on the surface of the water. If it was found near the border, or a city whose majority of inhabitants were non-Jews, or a city in which there is no court, they would not break [the heifer's neck]. They measure the distance only from a city in which there is a court. If [the corpse] was found exactly between two cities, both of them would bring two heifers [between them], the words of Rabbi Eliezer; And Jerusalem does not bring a heifer whose neck is to be broken.

-Mishnah Sotah 9:2

We see a record of discussion on obscure minutiae of law, details that rival the complexity of the US tax code- but which took place long before they were committed to writing. If these were just practices that were copied from one generation to the next, each community according to its own customs, how is this even possible? What were all these debates about? What were all these technicalities about, both the points that were disputed and those that were undisputed? Internal examination of our Oral Mesorah indicates far more than mimetic transmission of rituals or memorization of poetry, but an entire canonical legal system, observed by hundreds of communities throughout the Land of Israel and Bavel, clearly documented to be extant at least several centuries before the Mishnah. The legal system is what we refer to as the Torah sheBaal Peh, and the transmission is what we call the Mesorah.

Some may argue that yes, there must have been a chain of oral transmission for several centuries, but who says this chain extends back to Sinai? Perhaps it developed over time? And while there is plenty of evidence that the Oral tradition is very ancient, we will not discuss that evidence here. Instead, we will concede that in a sense, those who make this argument are correct. Not everything in the Oral traditions is from Sinai. The Mishnah includes many statutes, regulations, and practices that the Rabbis instituted, such as Muktzeh, Eruvin, many types of tithes, marriage contracts, ritual impurities, Shemoneh Esrei, and Brachos. The Mishnah also includes that which the Rambam terms “new applications”:

…the new applications that were deduced in each generation concerning laws that were not communicated by the oral tradition, but rather deduced using one of the thirteen principles of Biblical exegesis and accepted by the high court… (Introduction to the Yad)

So it is true, the Oral tradition, broadly speaking, was indeed something that developed over many centuries. But what conclusion does this lead to? If we acknowledge that the Written Torah is from Sinai, then it would be very strange to maintain that this very development of the Oral tradition that we speak of was not rooted in the Written Torah. Does the Oral tradition not claim fealty to the Written Torah, and demonstrate sincere attempt to fulfill it? Perhaps one could object that the interpretations of the Sages are so far-fetched and absurd, that there is no way that they could represent the intention of the Written Torah. But this also makes no sense. Most of these interpretations were agreed upon by hundreds and thousands of sages over several centuries before the Oral tradition was written. Were they all simply insane? Clearly, even if we don’t understand all of these interpretations, the fact is that they were considered valid by many generations of scholars, the very scholars who cared most to preserve the chain of tradition.

What about Tefillin?

Finally, perhaps one could object that even if there is an Oral tradition that theoretically stretches back to Sinai, who says it is the correct tradition? Surely it did not escape mistakes and ambiguities, as we see from the profusion of doubt and debate? And if so, how do we know, for example, that Tefillin is from Sinai? Maybe Tefillin was a saintly custom that spread at some point during the early to mid-Second Temple period, and after a few centuries, was erroneously understood by the Sages as the fulfillment of a Torah commandment?

While I have no proof (as of now) that this didn’t happen, I believe it is exceedingly unlikely. The Oral tradition preserved the distinction between Torah mandates, Rabbinical injunctions, and communal customs in many different ways. Although the Mishnah doesn’t use the terminology דאורייתא (Torah injunction) and דרבנן (Rabbinical injunction), it does use the terms דברי תורה (Words of Torah), דברי סופרים (Words of Scribes, which could mean Rabbinical enactments or Rabbinical interpretations depending on the context- See Mishnah Yevamos 2:4, Sanhedrin 11:3), שבות (“resting”, a term for Rabbinical prohibitions on Shabbos and Yom Tov), and תקנות (enactments of the Sages, see Mishnah Berachos 9:5, Shekalim 7:6). The Oral Tradition also demonstrates many distinctions between Torah and Rabbinical injunction through the details of the halacha.

With what may a woman go out and with what may she not go out? A woman may not go out wool ribbons, nor with flax ribbons… But if she has gone out [with any of these] she is not liable for a Chattat [an offering brought to expiate sin]

-Mishnah Shabbos 6:1

A man may not go out with nail-studded sandals, nor with a single [sandal] unless he has a wound on [the other] foot. A [man may not go out] with tefillin; nor with an amulet unless it [was written] by an expert; nor with a cuirass, nor with a helmet, nor with greaves. If one has gone out [with any of these] he is not liable for a Chattat.

-Mishnah Shabbos 6:2

A woman may not go out with a needle that has an eye, nor with a ring that has a seal, nor with a diadem‎; nor with a perfume pouch, nor with a balsam-flask. And if [a woman] has gone out [with any of these] she is liable for a Chattat, these are the words of Rabbi Meir; but the Sages exempt her [regarding] a perfume pouch and a balsam-flask.

-Mishnah Shabbos 6:3

[If] an individual pares his nails with his hand or with his teeth; or pulls his hair [from his head], or his mustache, or his beard; or [if a woman] braids her hair, or paints [her eyelids], or parts her hair Rabbi Eliezer deems [these individuals] liable. But the Sages prohibit these [actions as violating the doctrine of] Shevut [a rabbinic stricture aimed at enhancing Shabbat's quality as a day of rest]

-Mishnah Shabbos 10:6

These Mishnayos draw the distinction between a Rabbinical prohibition of wearing certain items, which although prohibited, do not render one liable for a sin-offering, and items which are prohibited by the Torah, and are thus liable for a sin-offering.

There are three bills of divorce that are invalid, yet, if she remarried the child is legitimate: If he wrote [the bill of divorce] in his own hand and there are no witnesses [signed] on it; if there are [signed] witnesses but there is no date; if there is a date, but only one witness [signed] on it. These are three cases when the bill of divorce is invalid, but if she remarried, the child is legitimate. Rabbi Elazar says, "Even if there are no witnesses [signed] on it, if he gave it to her in front of witnesses it is valid. And she may collect [debts] from mortgaged property [using this document] since witnesses [need] sign on a bill of divorce only due to Tikkun HaOlam.

-Mishnah Gittin 9:4

This piece of the Oral tradition distinguishes between different degrees of invalidity of a divorce document, corresponding to those that are invalid according to the Torah definition, which bear the consequence of illegitimacy of the resulting child, and those that are “only” invalid by Rabbinical injunction.

The following is an example of a Mishnah in which the Tannaim discuss the difference between Rabbinic and Torah prohibitions explicitly:

Said Rabbi Eliezer, "Does it not follow logically — if slaughtering an animal which is [forbidden] on account of ‏melakhah [one of thirty-nine types of constructive labor forbidden on Shabbat and festivals]‎ pushes off Shabbat [and is allowed in this instance of the Pesach sacrifice]; these [acts enumerated in the previous mishna], which are [forbidden] on account of ‏shevut‎ [restrictions established by the Sages regarding Shabbat to prevent violation of Torah-level Shabbat prohibitions, and to increase its sanctity], do they not [also] push off Shabbat?" Rabbi Yehoshua said [back] to him, "[The laws concerning the] festival will determine [this case; the Sages] permitted many [prohibitions] on it which are [forbidden] on account of ‏melachah, whilst [they left] forbidden on it [prohibitions which are] on account of shevut‎‎."

-Mishnah Pesachim 6:2

Another example where the Mishnah explicitly distinguishes between the halachachic status of ritual impurity based on it’s origin in the “Words of the Scribes”:

If there is doubt concerning the hands as to whether they have contracted uncleanness, have conveyed uncleanness or have attained cleanness, they are deemed clean." "Any doubt that arose in a public domain is deemed clean. "A condition of doubt concerning an ordinance of the scribes": [For instance, he is uncertain whether] he ate unclean food or drank unclean liquids, whether he immersed his head and the greater part of his body in drawn water, or whether there fell on his head and the greater part of his body three log of drawn water, such a condition of doubt is deemed clean. But if a condition of doubt arose concerning a father of uncleanness even though it was only rabbinical, it is deemed unclean.

-Mishnah Taharos 4:11

The Oral tradition further distinguishes between universally binding precepts and community customs:

In places where it is usual to say a blessing [after reading it], it is obligatory to say it, but not where it is not customary.

-Mishnah Megillah 4:1

In] a place where [the inhabitants] were accustomed to do work on the eve of Pesach until noon, we may do [so]; [in] a place where [the inhabitants] were accustomed not to do [so], we may not do [so]. One who goes from a place where they do [work], to a place where they do not do [work], or from a place where they do not do [work] to a place where they do [work], we place upon him the stringencies of the place he came from, [or] the stringencies of the place that he went to. And a man should not deviate [from the established customs of a place], on account of [the] disagreement [to which such conduct may lead].

Mishnah Pesachim 4:1

[If he did not write in her ketubah], "You shall live in my house, and be fed out of my property, as long as you remain a widow in my house," he is, [nonetheless], obligated is [nevertheless] in force, as that is a [fixed] stipulation [enacted] by the court. [The above] is what the men of Jerusalem would write [in their ketubot]. The men of the Galilee would write like the men of Jerusalem. [however,] the men of Judea would write "[You shall live in my house, and be fed out of my property] until the heirs want to give you [the amount of] your ketubah."

-Mishnah Kesubos 4:12

With regard to Tefillin itself, the Mishnah differentiates between the general practice of Tefillin, which it refers to as “Words of the Torah”, and the number of chambers, which it refers to as “Words of the Sages”.

This [law] is more severe with respect to the words of the Sages than to the words of the Torah: One who says, there is no such thing as tefillin, in order to transgress the words of the Torah, is exempt. [But one who says] there are five compartments, [in tefillin] in order to add to the words of the Sages, is liable.

-Mishnah Sanhedrin 11:3

Therefore, given the Sage’s Mesorah and their interest in halachic analysis, it is highly unlikely that the lofty standing of Tefillin was just a big misunderstanding, but rather, it represents one of the many pieces of the eternal truth of our Oral tradition. And just as we can trust the Sage’s Mesorah regarding Tefillin, so too for everything else, including the origin of Chanukah candles.

Blessed is He who chose them and their teachings, Amen.

Bonus questions:

1. Who is the earliest person cited for his halachic statement in the Mishnah?

2. Where in Tanach is an anatomy book mentioned?