The House built on Sand – Rabbinic Judaism and the Oral Law

Judaism ascribes the many obvious and fundamental differences between its own practices and the religion of the Bible to an oral law and tradition:

“The Jewish People are frequently called ‘the People of the Book’; yet if one were to search out a people who follow the teachings of the Written Law (Torah sheBichtav) literally, one might be led to the Samaritans, or the Karaites, who are now settled to the south of Tel Aviv, but never to the Jewish People. The Jewish People do not now follow the literal word of the Written Law, nor have they ever done so. They have been fashioned and ruled by the verbal interpretation of the written word … ” [1]

To justify its departure from the written Word, Judaism claims –

(1)    that an ‘oral law’ was communicated to Moses on Mount Sinai at the same time and with the same authority as the ‘written Torah’ (which oral law was later codified as the Mishnah);

(2)    that the rabbinic majority have the Divine right of interpretation and are the final arbiters of the Law’s meaning and application.

The Talmud claims that the entire oral law was given at Sinai.[2] Other sources qualify this claim, to make room for the obvious conclusion that the traditional law developed over time, first through the judicial pronouncements of the Priests and later also through the rabbis. The Shemot Rabbah,[3] suggests that God did not teach Moses the ‘entire oral Torah’, but only the principles, while the Sefer ha’Ikkarim [4] implies that it was these aforementioned principles rather than the substance of the oral law that was transferred by tradition, to become the means by which “sages of future generations deducted the laws applicable to any situation.” [5]

A further part of the oral law is then attributed to rabbinic legislation: “in addition to this substance of the Oral Law that is of Sinaitic origin, there is the Oral Law that the Sages had not received from Sinai which they produced by interpreting the tradition and by creating new legislation.” [6]

This explanation creates its own difficulty in view of the Torah’s prohibition against ‘adding and subtracting’ – which we consider under the heading of “rabbinic authority” in a sequel to this article.

Considering biblical proof for an oral law

The texts often cited as evidence that an oral law was given at Sinai, are:

• Israel’s undertaking in Exodus 24:7 that it will “do and hear” the law – where the commitment to ‘hear’ is understood in relation to the oral law.
• The use of the plural “Laws” ( תורת), in Leviticus 26:46: “these are the statutes, and judgments, and laws (torahs), which the LORD made between Him and the children of Israel in mount Sinai by the hand of Moses” – where the plural form is understood as referring to the ‘oral Torah’ and the ‘written Torah’;
• The LORD’s instruction to Moses in Deuteronomy 31:19, to “put it in their mouths” – where this is taken as a commandment to convey the law by oral tradition.

All of these ‘proofs’ are highly problematic.

(1)

Exodus 24 records that Moses first recited the Law to the people (orally) and then, after they agreed to its terms, Moses wrote down “all the words of the LORD” (ויכתב משׁה את כל־דברי יהוה). He then read this “Book of the Covenant” (ספר הברית) “in the ears of the people”, and the people responded with the words “all that the LORD has said will we do, and hear” (נעשׂה ונשׁמע) (which most English translations translate as “do and obey”).

The full passage reads:

“And Moses came and told the people all the words of the LORD, and all the judgments: and all the people answered with one voice, and said, All the words which the LORD has said will we perform. And Moses wrote all the words of the LORD, and rose early in the morning, and built an altar under the hill, and twelve pillars according to the twelve tribes of Israel. And he sent young men of the children ofIsrael, who offered burnt-offerings, and sacrificed peace-offerings of oxen to the LORD. And Moses took half of the blood, and put it in basins; and half of the blood he sprinkled on the altar. And he took the book of the covenant, and read in the audience of the people: and they said, All that the LORD hath said will we do, and obey [lit. hear]. And Moses took the blood, and sprinkled it on the people, and said, Behold, the blood of the covenant, which the LORD has made with you concerning all these words” (Exodus 24:3-8).

Does “do and hear” in this context indicate a commitment to obey an oral law?

The importance of the Law is clearly founded on the fact that the Law comprised the terms of the Covenant between God and Israel. Since Israel’s obedience or disobedience to these terms would both have grave consequences (see Deuteronomy 28), it was critically important to know exactly how Israel’s obedience would be determined. Exodus 24:8 states that the Covenant was made concerning “all these words” i.e. those recorded in the Book of the Covenant. This is confirmed at the end of Deuteronomy:

“And it came to pass, when Moses had made an end of writing the words of this law in a book, until they were finished, that Moses commanded the Levites who bore the ark of the covenant of the LORD, saying, take this Book of the Law, and put it in the side of the ark of the covenant of the LORD your God, that it may be there for a witness against you. For I know your rebellion, and your stiff neck: behold, while I am yet alive with you this day, you have been rebellious against the LORD; and how much more after my death?” (Deuteronomy 31: 24-17)

This confirms that the entire Covenant was recorded in writing shortly before Moses’ death, and Israel would be held accountable for transgressing what was written in the Book.[7]

Consider further the warning against disobedience (which also refers to the law written in the book):

“If you will not observe to do all the words of this law that are written in this book, that you may fear this glorious and fearful name, THE LORD THY GOD; Then the LORD will make your plagues wonderful, and the plagues of your seed, even great plagues, and of long continuance, and severe sicknesses, and of long continuance”(Deuteronomy 28:58-59).

At the time of crossing the Jordan, the LORD said to Joshua:

“Be strong and of a good courage: for to this people you shall divide for an inheritance the land which I swore to their fathers to give them. Only be strong and very courageous, that you may observe to do according to all the law which Moses my servant commanded you: turn not from it to the right hand or to the left, that you may prosper wherever you go. This Book of the Law shall not depart out of your mouth; but you shall meditate in it day and night, that you may observe to do according to all that is written in it: for then you shall make your way prosperous, and then you shall have good success” (Joshua 1:6-8).

Apart from confirming that Israel’s fate in the Land depended on its obedience to the written Law, this passage also clarifies what it was that the Israelites would hear –  “This Book of the Law [that] shall not depart out of your mouth!”  What was written had to be read and spoken and heard. Moses, Joshua, Josiah and Ezra [8] – are all recorded as reading the Book of the Law in the hearing of the people – as it is still read in the synagogues, week by week – even to this day.[9]

It was further required of every king of Israel or Judah, “when he takes the throne of his kingdom … to write for himself on a scroll a copy of this law, taken from that of the priests, who are Levites.  It is to be with him, and he is to read it all the days of his life, so that he may learn to revere the LORD his God and follow carefully all the words of this law and these decrees and not consider himself better than his brothers and turn from the commandment to the right or to the left. Then his descendants will reign a long time over his kingdom in Israel” ( Deuteronomy 17:18-20).

(2)

The meaning of the plural “Laws” ( תורת) in Leviticus 26:46 is clear from the context:

“These are the statutes, and judgments, and laws, which the LORD made between him and the children of Israel in Mount Sinai by the hand of Moses.”

“These” (indicative pronoun) refers to the laws and statutes in the preceding chapters which are all part of the written record, and were given “by the hand of Moses” (i.e. delivered in tangible form), rather than spoken.[10]

(3)

Finally, it was not the Torah that God instructed Moses in Deuteronomy 31:19 “to put in their mouths”  –

“Now, therefore, write this song for you, and teach it to the sons of Israel. Put it in their mouths, so that this song may be a witness for Me against the sons of Israel. For when I shall have brought them into the land which I swore to their fathers, the land that flows with milk and honey, and they shall have eaten and have become satisfied, and become fat, then turn to other gods and serve them, and provoke Me and break My covenant. And it shall be when many evils and troubles have found them, this song shall testify against them as a witness. For it shall not be forgotten out of the mouths of their seed. For I know their imagination which they do, even now, before I have brought them into the land which I swore. And Moses wrote this song the same day, and taught it to the sons of Israel” (Deuteronomy 31:19-22).

We see that Moses was instructed to ‘write’ the song and then teach it to the children of Israel – which he did (we find the whole of the song recorded in Deuteronomy 32).

Instead of supporting the rabbis’ idea of two different traditions – one oral and one written – Deuteronomy 31:19 shows once again: what was ‘put in the mouth’ was no different to what was written.

Considering the most fundamental argument in favour of the oral law

It is by no means these scant, and even spurious, scriptural proofs discussed earlier that are taken as the primary basis for Judaism’s belief in an oral law. As the Encyclopaedia Judaica explains,

“The need for … the existence of the Oral Law is inherent in the very character and nature of the Torah … The written Law contains contradictions (cf., e.g., Deut. 16:3-4 with 16:8) and there is a lack of clarity and definition:  The law, “he shall surely be put to death (Ex. 21:22-23 et al.), does not state whether by stoning, burning or some other method not mentioned in the Torah. “And ye shall afflict your souls” (Lev. 16:31) does not indicate whether it means by mortification of the body through ascetic practices, by fasting, or in some other manner. The prohibition against doing work on the Sabbath does not specify the nature of work … Individual laws are given without any indication of whether the law is confined to that particular case or whether it is to be regarded merely as an example of a category of laws, e.g., the law that a slave goes free if his master destroys his eye or his tooth (Ex. 21:26-27) [i.e. should this also apply if a leg or an arm is destroyed?] … There are lacunae [gaps], and laws which are not explicitly stated, but to which mere passing reference is made (thus the only reference to the laws of sale and acquisition is the prohibition against overreaching – ona’ah) … the Torah enjoins that one sentenced to be flogged may not have more than the fixed number of lashes inflicted (Deut. 25:1-3), but nowhere does it specify which transgressions involve the punishment of a flogging. From the above it seems clear that it was impossible for life to be regulated solely in accordance with the Written Law.” [11]

This argument reveals certain critical assumptions of rabbinic Judaism concerning the ‘nature and character’ of the Sinai Covenant.

Firstly, can life be fully regulated by rules? And is this God’s desire? If so, the minute details of the Talmudic system are necessary and the Law is incomplete without them.

The Bible teaches otherwise, namely that man’s more complete obedience toward God is not achieved by more rules, but by more love.

“The LORD your God will circumcise your hearts and the hearts of your descendants, so that you may love Him with all your heart and with all your soul, and live … The LORD will again delight in you and make you prosperous, just as He delighted in your fathers, if you obey the LORD your God and keep His commands and decrees that are written in this Book of the Law and turn to the LORD your God with all your heart and with all your soul”(Deuteronomy 30:6-10).

“I will give them an undivided heart and put a new spirit in them; I will remove from them their heart of stone and give them a heart of flesh. Then they will follow my decrees and be careful to keep my laws. They will be my people, and I will be their God” (Ezekiel 11:19-20).

“So I will establish my covenant with you, and you will know that I am the LORD. Then, when I make atonement for you for all you have done, you will remember and be ashamed and never again open your mouth because of your humiliation, declares the Sovereign LORD’” (Ezekiel 16:62-63).

Rules in fact compensate for an absence of love, as many rules simply compel the types of compensation, restraint and abstinence, that genuine love for God and one’s neighbour would naturally perform, without legal compulsion.

Jesus taught this very lesson, namely “‘Love the Lord your God with all your heart and with all your soul and with all your mind.’ This is the first and greatest commandment. And the second is like it: ‘Love your neighbour as yourself.’ All the Law and the Prophets hang on these two commandments” (Matthew 22:37-38).

Love is thus “the fulfilment of the Law,”[12] and a life governed by love need not be constrained by law.

That holiness increases in proportion to the detail and extent to which our lives are controlled by rules is a fallacy. Rules can in fact turn obedience into a ritual and obfuscate what the law truly requires.

Take the commandment, “these words which I command you this day shall be in your heart … and you shall bind them for a sign upon your hand, and they shall be as frontlets between your eyes” (Deuteronomy 6:6-7).

Since what is ‘in the heart’ is not easy to observe and regulate, the Talmud concentrates on the binding. We thus find a very great number of rules on phylacteries, dictating everything from their size and the divisions within them, the length and colour of the straps, the precise verses of scripture that must be put in them, how the verses must be written out, etc.

But are these talmudic details really the way to ensure that the written commandment is fully obeyed? The critical requirement seems for Israel to be always mindful of God’s laws and to apply them in all their deeds.

King Solomon gave a similar instruction in Proverbs 3:3, “Let not mercy and truth forsake you; tie them around your neck; write them upon the tablet of your heart.” Solomon clearly wants us to hold on to mercy and truth: ‘writing on the heart’ and ‘tying around the neck’ are hyperbolic expressions which emphasise the importance of the instruction. See also in Proverbs 7:2-3: “Keep my commandments and live; and keep my law as the pupil of your eye. Bind them upon your fingers; write them upon the tablet of your heart.”

It is quite possible to wear phylacteries as often as required, and with all the ritual detail, and to feel that one has thereby adequately performed the duty of Deuteronomy 6, and yet have nothing of God’s law in your heart.

It was their obsession with detail that led the Pharisees to neglect the “weightier” (i.e. more important) requirements of the Law, namely those pertaining to justice, mercy and faithfulness. Thus Jesus’ accusation against them: “You strain out a gnat, but swallow a camel.” [13] Detail does not necessarily lead to a closer adherence to the Law.

In fairness, however, the rabbis don’t only claim that the detail is missing, but that the written Law (i.e. Scripture), in some cases, makes mention of a commandment which is not recorded in it. The best known example is the law of slaughtering in Deuteronomy 12:21:

“If the place which the LORD your God has chosen to put His name there is too far from you, then you shall kill of your herd and of your flock which the LORD has given you, as I have commanded you, and you shall eat in your gates whatever your soul desires.”

This permits the Jews once they entered the Land to slaughter away from the Tabernacle, as they were compelled to do in the wilderness (Leviticus 17:3-4).

Whereas the phrase “as I commanded you” could easily refer to the prohibition in Levitcus 17:7, namely that an animal should not be slaughtered as a sacrifice to idols, the rabbis claim that the phrase refers to the manner of slaughtering, and must therefore refer to a commandment given orally, since the written Law nowhere describes how to slaughter. This leads them to conclude that the written Law implies and depends on extraneous rules. Yet Leviticus 17:13 and Deuteronomy 12:15-16 do describe, in respect of the manner of slaughtering, that the blood of animals, whether sacrificed or hunted for food, must be poured out. This is all that is necessary for purposes of Leviticus 17:10 -11: “ ‘Any Israelite or any alien living among them who eats any blood – I will set my face against that person who eats blood and will cut him off from his people. For the life of a creature is in the blood, and I have given it to you to make atonement for yourselves on the altar; it is the blood that makes atonement for one’s life.’”

The substance of the written Law is once again sufficient for obedience. The practical refinements to the process developed and handed down by tradition may be useful, but they are not an essential part of God’s covenant.

What about the laws that carried capital punishment, where a clear and precise definition of the transgression is required for a fair conviction? In these cases, it is argued, the written law is clearly inadequate. The prohibition against work on the Sabbath is a regular example:

“The prohibitions of labour on the Sabbath in the Pentateuch are as general and indefinite as they are emphatic … nowhere in the [written Law] is there such a definition of the works which are forbidden on a Sabbath that a man could in all cases know whether the thing he was doing was permissible or prohibited. The necessity of definition in this case was peculiarly great because of the severity of the penalties denounced in the Pentateuch against the profanation of the day.” (Judaism in the First Centuries of the Christian Era, George Foot Moore, vol. 1, p. 253.)

The Encyclopaedia Judaica states:

“It is apparent that until he heard it explicitly from God, Moses did not know what the penalty was for gathering wood on the Sabbath (Num 15:32-35); cf. Sif. Zut. 15:34: “Eliezer b. Simeon says: Moses did not know that he was liable to death, nor did he know how he should be executed, as can be inferred from the reply given: ‘And the Lord said unto Moses: the man shall be put to death,’ i.e., he is liable to death; how shall he put to death” He [God] replied: by stoning”; cf. also the case of the blasphemer in Lev. 24:10-230.”[14]

This brings us to consider the next critical assumption of Judaism, namely that there would be no further communication with God after Sinai, on which a specific verdict or deeper understanding of the Law could be based.

Was a full knowledge of the Law, or the potential to know the Law fully, transmitted by a single revelation at Sinai?

God’s revelation to Moses noted by Eliezer ben Simeon, concerning the Sabbath breaker and the blasphemer, reveals a continuing revelation by God of the Law’s application and requirements. Moses did not have recourse to an oral law, nor did he apply ‘orally transmitted principles of interpretation’. In both cases, He sought the verdict from God.

God was in covenant with Israel and would continue to reveal His true will and intent in relation to their covenant terms. Further examples of the ‘theocratic’ development of the Law are found in Numbers 9 and 27. In the first case, the LORD revealed to Moses that certain men kept from celebrating the Passover through contact with a dead body, could celebrate the Feast a month later. In the second, God reveals the inheritance rights of daughters where an Israelite dies without a son (this revelation occurred almost forty years after Sinai).

We find in these cases, that “Moses brought their cause before the LORD, and the LORD spoke to Moses, saying …”.[15]  The passage of Scripture on which the rabbis base their authority, similarly vests the authority to expound and rule on the Law to ‘the priests’ and the ‘judge in office’ ministering before God in ‘the place which the LORD shall choose’.[16]  The Temple would serve as the meeting place between God and Israel and it was there that He would reveal His will. The role of the priests and judges in expounding the Law was thus premised on Divine revelation.

Rabbinic lore, by contrast, is premised on a complete denial of any Divine revelation after Sinai:

“Furthermore, the Oral Law lays down explicitly that from the moment of the giving of the Written Law – “from Heaven,” at Sinai, but in the language of men and to men – it is handed over absolutely to the judgment of the human intelligence of the scholars of the Oral Law, who accept the “yoke of the kingdom of Heaven” but give halachic [17] ruling according to their understanding …”.[18]

Thus in the Talmudic tractate Baba Mezia, we find the famous account of rabbis having an argument over a question of law. Various supernatural signs are given to support the view of the dissenting rabbi, but the other rabbis persist in the opposite view. Eventually a Voice speaks from Heaven declaring the dissenting rabbi to be correct – to which the majority group responds “it [i.e. the Law] is not in Heaven” (i.e. where God may yet rule on its application), but on earth (where the rabbis alone have jurisdiction) – at which God laughs and says, “my sons have defeated me”. [19]

The rabbis do not tolerate their verdicts being overruled – not even by God, and this is the chief purpose for which the myth is required, they everything they teach was given by God at Sinai.

By this means the rabbis gradually substituted man made rules for the word of God, and simultaneously usurped the place of God as the ultimate authority in defining the religion of His people.

Postscript

As an addendum to this first part, we consider one last difficulty with the belief in an oral law originating at Sinai, being in the claim that it was handed down from there by an uninterrupted transmission over some 1500 years – until it was eventually written down in the Mishnah.

“The authenticity of the unwritten law delivered to Moses could be assured only by an uninterrupted and trustworthy transmission from generation to generation down to the schools of the first century of our era [i.e. since it was not written down until that time]. Such a claim of tradition is given at the beginning of Mishneh Avot: ‘Moses received Law [implying written and unwritten] from Sinai and transmitted it to Joshua, and Joshua to the elders, and the elders to the Prophets, and the Prophets transmitted it to the men of the Great Assembly [being the assembly of Ezra]’”, etc. (Moore, op. cit., p. 255.)

The difficulty presents itself in the account of King Josiah rediscovering ‘the Book of the Law’ in the Temple, and finding in it the laws that his predecessors had clearly forgotten (2 Kings 22). It is difficult to argue that an oral law remained perfectly  intact during a time when even the written Law, with which it supposedly forms an integral whole, was entirely forgotten. [20]

In Part 2 we consider the rabbis’ claim that they have authority to make and interpret law, as based on Deuteronomy 17:8-13.