Overview: The ancient concept of law and its oral component, internal gaps in the Written Torah left for the Oral Law, hints to extrabiblical laws throughout Tanakh, minimalist and maximalist approaches.
Maximalist vs minimal approach
When we discuss the concept of the Oral Law, people often have different definitions in mind. So before getting into the Oral Law discussion, it is important to define what we mean by the term. In colloquial speech, the Oral Law refers to any law in rabbinic Halacha that is not found in the written text of Torah. It would include any rabbinic interpretation of Torah, and rabbinic enactments (takanot and gezerot) that developed over the years (we discuss those in “Rabbinic Interpretation of Scripture” and in “Rabbinic Enactments”).
But here, we have a different Oral Law in mind. When wrestling with the question of whether or not at Oral Law was given at Sinai, we refer not to the post-Sinai laws that were added to the Oral Law by the rabbis. Instead, we refer to a minimal oral interpretation of some biblical laws provided by Moses at the giving of the Torah at Sinai.[1] This is a minimalist approach, in which we argue for a small Oral Law that was given alongside the Written Law. There is simply no reason to assume that a massive Oral Law was given at Sinai and the vast majority of laws in the Talmud seem to be post-Sinaic. We will refer to the post Sinaic oral laws instituted by the rabbis as “post-Sinaic Oral Law” and to the Sinaic Oral Law given by Moses as “Sinaic Oral Law.”[2]
Moreover, we will not argue that the specific oral laws that we have after 3,000 years are the infallible accurate laws as given by Moses. There are likely many mistakes in the Oral Law we have today as discussed in “The Rabbis: Supermen or Fallible Humans Beings.” We will only argue for the existence of an Oral Law that accompanied the Written text of Torah – not necessarily the Oral Law exactly as we have it today.[3]
The ancient concept of Law and its oral component
There is indication that in ancient times, law was much more dependant on oral traditions than it was on the text. Even in cases where a text existed dictating the Law, for example the Code of Hammurabi – it wasn’t the source of the Law. Rather the common Law of the lands were clearly in the form of oral traditions and the text was just recording some of those laws.[i]
Torah seems to be more a historical record of the Exodus – which also briefly records the laws given by Moses – rather than being a document intended as the source for the Israelite Law.[4] The Israelite Law, given by Moses to the Israelites, would have been orally – and the written Torah is only recording that Moses told the Israelites the laws of Sabbath, without actually specifying in detail what the laws of Sabbath actually are. That was left for the Oral Law to do (as we shall soon discuss).
Gaps in the Written Law
This perspective of the Written Torah, as a historical record rather than a source of Law, is bolstered by the fact that so many ambiguous laws in Torah are missing key details on how to perform those Mitzvot. It would seem that these details were already known to the Israelites, since Moses verbally communicated with them these details prior to writing the Torah.[ii] Therefore, when writing the Torah, some several years later, Moses needed only to refer to Sabbath laws without actually needing to specify the details of the Sabbath law. Below are just a few examples:
Shabbat: “Do not do any work on the Shabbat.”[iii] The violation of intentionally working on Shabbat results in Capital Punishment. Yet despite this strict consequence of violating this law, nothing about the law is explained. What does “work” (or melacha in Heb.) mean? It is an extremely generic term to use without a context clarifying its specific meaning. After all, the High Court should be given criteria to know when to execute this harsh punishment for “working” on Shabbat. [One cannot say work is simply business, for if so, why does the Torah forbid lighting fire on Shabbat[iv] if it has nothing to do with business? In addition, in commerce itself, there are many levels and practical questions.][5] Is painting a portrait allowed? Stitching a garment? Collecting food from the field not for the sake of selling the produce, but for his own family to consume? Are only laborious jobs disallowed or also a writer or a therapist? And there are many more basic questions on this unexplained commandment that must have been accompanied by an Oral Law to clarify the Torah’s stance on these issues.
Yom Kippur: Regarding Yom Kippur the Torah writes that “you shall ‘panic’ (or ‘inflict pain’) upon your soul.”[v] How should we “afflict pain”? By scratching ourselves? By walking barefoot? By getting beaten? By meditating on bad thoughts? Or by fasting? Bear in mind there has to be a clear-cut definition; for its violation’s punishment is Capital Punishment.[6]
Sukkot: “On the first day you shall take the fruit of a nice tree, branches of palm trees, boughs of leafy trees, and willows of the brook, and you shall rejoice before the Lord your God seven days.”[vi] Now, simply try to understand what this command means without the Oral Law! Pure riddles! How should we understand “you shall take” without a follow-up command telling us what to do with those objects? Are we to dance with these objects? Juggle them? Adorn ourselves with them? Or just buy these items from the market and leave them on the shelf at home? Maybe we are to eat this “fruit of a nice tree”?[7]
Rosh Hashanah: Rosh Hashanah is known by Jews worldwide as the holiday of New Years. Yet, ironically, while this holiday is mentioned in the Torah, exactly what we are celebrating is nowhere to be found except in the Oral Law. This is what the Torah tells us regarding Rosh Hashanah: “In the seventh month, on the first day of the month, you shall observe complete rest, a sacred occasion commemorated with loud blasts.”[vii] In another instance the Torah tells us: “In the seventh month, on the first day of the month, you shall observe a sacred occasion: you shall not work at your occupations. You shall observe it as a day when the horn is sounded.”[viii] For starters, what are we commemorating?[8] The Written Torah gives us no clue. Imagine a holiday that commemorates absolutely nothing! Second, what does “commemorated with loud blasts” mean? Who blows? What does he (or we) blow? How many times? Where are we to do so; at the Temple or simply anywhere?[9]
Many days: “If a woman’s blood flows for many days… she is contaminated.”[ix] How many days are defined as “many”? This would seem to have been a law the Israelites were already familiar with (either since it was widely practiced at the time or because Moses verbally explained it to them), and therefore the written text did not need to write the specifics of what is considered “many days.”
Besides for gaps in the actual laws recorded in Torah, there are essential questions that Torah doesn’t address. The answers to these questions must have either been a part of the oral tradition or intentionally left for the High Court and religious authorities to decide. For example:
> Are women required to keep all the laws? Perhaps they are exempt from many laws due to their ancient standards at the time the Torah was given? This would in fact explain why the Torah was written in masculine terms. Yet the Written Torah gives us no insight on the matter.
> At what age is one reliable for the death penalty, lashes, or monetary payment for transgressing certain commandments?
> Are converts allowed into the nation of Israel? If yes, then how (i.e. what procedure must be done)? Which Mitzvos must they accept? [The Torah only speaks of a ger toshav, a foreigner living within the actual Land of Israel, but doesn’t mention the possibility for a convert outside of Israel.]
> What defines a Jew? Maternal descent, paternal descent, or both are needed?[11]
> Are the sick and crippled responsible for transgressing the fasting on Yom Kippur? If not, then how sick (e.g. just bed-ill or even discomfort)?
These are just selective examples of many to bring-out the point that there had to have been an Oral Law to explain these commandments and have answers to very practical questions we encounter on our day-to-day lives.
Hints to extrabiblical laws throughout Tanakh
Yet another method in which the scripture validates the Oral Law is where mention is made of details of the law that are not explicated elsewhere. The wording of scripture indicates that no new law is being presented, but rather the reader is expected to be familiar with these details. Deuteronomy 26:14 has the farmer declaring that he has not eaten of the tithes while in a state of mourning nor has he given of them to the dead, details that are mentioned nowhere in the five books of Moses. Numbers 31:23 has Elazar telling the soldiers details of the purity laws that are not presented elsewhere. We can see that the laws came with details that are not written in the scriptures. However, it can be argued that the actual inexplicable reference to those laws are precisely the source for them. So while here as well skepticism is possible, the implications of this do point in favor of the Oral Law.
Yet another astonishing reference to the Oral Law is found in the book of Ezra:
“Now then, let us make a covenant with our God to expel all these women and those who have been born to them, in accordance with the bidding of the Lord and of all who are concerned over the commandment of our God, and let the Teaching be obeyed.” (Ezra 10:3)
Apparently, there’s some law that the children of the foreign non-Jewish wives are not considered Jewish. This law is nowhere to be found anywhere in the Five Books of Moses. Yet, Ezra describes the Law as being a Torah commandment (Mitzvah). It is only in the Oral Torah that we are taught that the children’s Jewishness is determined by the mother[x] and accordingly these children were indeed Gentiles. Accordingly, Ezra validates the Oral Law’s tradition as a part of the Torah (Mitzvah).
Some skeptics will suggest that in those days the children would stay with the mother in cases of divorce. Hence, it was a technical consequence of divorcing their wives that their children were to be abandoned. This answer is weak for two reasons. First, the Bible has no reason to tell us this consequence (especially because it’s not like the Bible over here is telling us a narrative of what happened but is telling us what they should do). Besides, from the wording it seems that the abandoning of the children was part of the commandment (Mitzvah) and covenant with the Lord.
Second, this interpretation clashes with verse 44 of this chapter: “All these [priests] had married foreign women, among whom were some women who had borne children.” This verse comes after a document Ezra writes in which he includes the names of all (priests) who had married foreign wives. He then for some reason found it fitting to write the aforementioned verse as well. I wonder why Ezra found concern in this fact, if not for the Oral Law which teaches that those children aren’t Jewish and are therefore to be separated from the Jewish community.
And finally, I question the source for this that the law of those days was that the mother has custody of the children. Even in Roman times, which was far more progressive than the Persian Era, the father had custody of the children under the law.[xi]
Bear in mind that the proofs brought here for the validity of the Oral Law shouldn’t be compared to someone, theoretically, attempting to prove that another book, say, the New Testament has an Oral Law. Because over here the Oral Law already exists, unlike by other sacred or mundane books, and the only question is whether or not there is evidence for the need of its existence. If the Oral Law hadn’t existed in the first place, the evidence brought would be weakened by the fact that there’s simply no Oral Law that does explain the commandments etc. Accordingly, the very existence of the Oral Law for the Torah already gives it a step ahead in comparison to other documents which by default we claim don’t have or need an Oral Law (which is essentially a weird concept).
Why some biblical laws are detailed and others not
Having established that there are both written and oral laws, the question is why God decided to choose specific laws to be written and others not. As a whole the answer would be that it’s literally God’s decision that we cannot ask on—just like we cannot ask on most things that He does. But perhaps we can suggest a sequence and pattern we find between the laws that are written and the laws that are within the Oral Law.
The laws that are written are laws that are done on a much smaller scale than the ones that are oral. A large portion of the Written Torah includes the detailed documented sacrificial system, because it wasn’t a national ordinance and observance, having been limited primarily to the Kohanim priests. On the other hand, the Oral Law encompasses mainly the details of the nationally observed Shabbat and holidays.
The reason for this general categorization between oral and written laws seems obvious: because the oral laws were practiced nationally on a frequent basis, they were subject to oral preservation. The other less performed Mitzvos (either performed by less people or on less occasions) would have been riskier to preserve orally because they are not relevant to the majority of the populace or majority of the time.
For an alternative view of the Oral Law, see “An Alternate View of the Oral Law.”
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[1] More on a technical level, it should be noted, that the Torah wasn’t specifically given at Sinai. Sinai is the way it’s referred to since the Ten Commandments were given there. From Torah it is clear that laws were given to the Israelites both before they traveled to Sinai and after, throughout a 40-year period.
[2] This also seems to be the position of Maimonides in the introduction to his commentary on the Mishnah (and Hilchos Mamrim 1:3). See Gittin 60b where a dispute between Rabbi Elazar and Rabbi Yochanan is recorded. One taking the approach that there are more written laws than oral laws and the other arguing that there are more oral laws than written laws (note that Rashi explains the Gemara in a different, more novel way). This would seem to be a maximalist versus a minimalist approach to Sinaic Oral Law.
[3] For the question of Rabbinic authority on Torah Law, see “The Rabbis: Supermen or Fallible Humans Beings” and “Is Rabbinic Law Binding.”
[4] The Torah seems to be a historical record, for the most part, which is why it dedicates chapters to historical details unrelated to Judaism as a religion. This includes the Edomite kingdom dynasty and ancestry in Gen. 36 and the travel map of the Israelites in Num. 33, among many other examples.
[5] Some Oral Law skeptics suggest that the fact that we don’t understand much of the laws is not because it was intended to have an oral law accompanying them. Rather, it is simply that the ancient Israelites were aware of these concepts and laws, which were widespread in their time.
But we have absolutely zero reason to assume the ancient Israelites were aware of religious concepts that we are not aware of today, because the Jewish religion is extremely different than other religions—especially in those days, when everyone was pagan. As a matter of fact, there are many laws which forbid us to practice common, gentile, or pagan worships. The Torah, as well, tells us our laws are unique and no other nation has them (Deuteronomy 4:8). Hence, the ancient Israelites would have had no source of information unavailable to us now.
Similarly, some skeptics suggest that the term melacha used in the Torah is a word whose meaning was more accurately known to the ancient Israelites. Therefore, their claim continues, we cannot make assumptions based off our lack of understanding and conclude there must have been an Oral Law. Yet the issue with this suggestion is that it’s not as though we don’t understand Hebrew; it’s simply that the Torah frequently uses rather generic terms to describe specific aspects of the Law, as in the above example of Shabbat. Additionally, this knowledge of the early Israelites would perhaps be sufficient for the very generation leaving Egypt and perhaps some more generations thereafter; however, these “concepts” known to the original Israelites wouldn’t last too long, and from thereon we would need to rely on tradition (which can also be called Oral Law), something which apparently the anti-rabbinic scholars don’t allow for.
Even if one is to assume the term melacha doesn’t intend to be as detailed as the rabbinic interpretations put it, the fact still remains that melacha is a generic term. “Work” is simply the excess involvement in an action. Are not all actions considered “work” if one puts in much effort? Or perhaps it’s a matter of how much time is put into them? How hard-working the person is (e.g. if they are sweating)? If it’s business which is intended here, what of making a sales transaction that is not business-related? Is it just agricultural work intended? (If so, I wonder why the Torah forbids lighting a fire on Shabbat.) There are dozens of more obvious questions which arise when one tries to keep this law!
The rabbinic sages unanimously interpreted the Shabbat working prohibition within the thirty-nine general categories of work formulated in the Talmud, some of which may seem insignificant and trivial acts. An example would be carrying a small object from a private domain to a public domain. How does the word “work” encompass this trivial act? A possible explanation is that the Torah established the principles of work in which at times it will be a significant act of work, and at times it won’t. For example, the general prohibition of carrying an item from one domain to another includes both laborious activity of commerce and trading and the trivial act of carrying a small object. Because it becomes difficult to draw lines of what is considered “work,” the Torah therefore established these thirty-nine categories, of which some of the offshoots will indeed be trivial, in order that we refrain from (almost) any sort of “work.” So the Torah prohibited carrying even a small item from domain to domain lest one come to carry a heavy load or carry for the sake of commerce and trade.
By prohibiting the thirty-nine categories of work, the Torah accomplishes the spirit of Shabbat in which no work of any sort is done. These categories can be divided into the specific procedures of three or four major labors: they are all the steps required for baking bread, tanning leather to use as writing-parchment, and weaving a garment; the remainder consists of kindling a fire or building structures. It is similar to the concept of rabbinic enactments for the sake of preserving and protecting biblical laws, except that here these “enactments” are biblical and not rabbinic in origin.
Some skeptics argue that as throughout the Second Temple-era there have been groups, such as the Sadducees and Essenes, and in modern times the Karaites and some Christians, who observe (or at least think they observe) the Shabbat. Its meaning and practical applications are therefore obviously self-understood. Therefore, even if they differ in the details of the reading, the general idea of resting is observed by many coalitions. So why the need for an Oral Tradition?
This argument fails to answer how we define “work” on Shabbat; all it says is that many people use their own emotional or intellectual decisions to define their personal Shabbat. Who is, therefore, to say they are actually keeping the Shabbat that God intended? So, please tell me what are we meant to do in order to keep the Shabbat? Perhaps it will be suggested that we simply do “something” to rest and change our normal schedule. But this suggestion fails because it still does not illustrate if that means we should rest in bed, or refrain from sweating, or conduct no business or no agriculture or nothing excessive.
The next question is how far we take this logic. Though the Oral Law deals with more details than the Written Law, there are still minor details, rare situations, it does not address. Hence, this logic can go on forever, getting increasingly detailed, without getting any conclusions. Just as we don’t conclude there was an Oral Law for these minor details, why should we conclude so about the major details?
Rather, we must use common sense where to draw the line. If one’s doctor told them, for example, that they must “inflict pain” (see upcoming Yom Kippur evidence for the Oral Law) upon themselves or else they would die, they obviously wouldn’t understand what he’s saying, because it is much too general of a term—to the point where it is impractical. But what if the doctor explains that he must “inflict pain upon himself through fasting tomorrow—no eating and no drinking.” Would he then continue to ask the doctor ‘what if this’ or ‘what if that’? It would appear that not. In such a case we would not assume the doctor has a deeper intent. (Although he may indeed have all the answers to the gray area questions and rare cases, the patient doesn’t need that information.)
So too in our case. If the Torah would state to “inflict pain through fasting, no eating and no drinking,” we would not conclude from this that there is an Oral Law to explain its details, and we can manage dealing with the rare cases, such as practically being stricter to accommodate all possible options. Yet the Torah only tells us to “inflict pain,” which is clearly too general to understand practically—as understood in the parable as well.
[6] “Mark, the tenth day of this seventh month is the Day of Atonement. It shall be a sacred occasion for you: you shall inflict pain upon your soul, and you shall bring an offering by fire to the Lord” (Leviticus 23:27). Its violation is punishable by death. “Indeed, any person who does not inflict pain upon his soul throughout that day shall be cut off from his nation” (verse 29).
The term inui throughout Scriptures is used generally to describe any sort of pain or infliction, and depending on the context this meaning varies. Perhaps one can argue that inui nefesh (that means to say, when the words are combined) meant “fasting” in ancient Hebrew terminology. Hence, all Jews knew this specifically meant fasting, so therefore no oral tradition was then required?
The answer makes the question seem foolish. If inui nefesh meant fasting, why then does every single instance in the Torah, without exception, use the term tzom when expressing the idea of fasting (fifty times in total)? As a matter of fact, there is only one other instance where the term inui nefesh is used in the Bible, and that’s in Psalm 35:13. The term inui nefesh is not self-understood, to the point that the Psalmist had to write tzom in order to clarify: aniti batzom nafshi.
So the question remains: how do we know what to do on Yom Kippur? The Oral Law also has three other restrictions prohibited on Yom Kippur that are included in “inflicting pain.” That, perhaps, explains why the Torah used the more general term and didn’t simply write “fasting” (tzom).
Some suggest that inui nefesh simply means to humble oneself, as the word inui is frequently used to indicate “humble” because Yom Kippur is the day of atonement and we must humble ourselves before the Lord. Either way it evades the question: does it actually mean to humble oneself or inflict pain (or fast, as by the term aniti batzom nafshi brought earlier from Psalm)? Even if it does mean humble, does this mean it is a day of non-stop prayer and humility or is just one part of the day required for us to humble ourselves and pray for forgiveness? (Please, let me know, because I don’t want to get Capital Punishment for it!)
[7] Karaites believe that the Four Species mentioned are to be taken for the actual building of the Sukkahs (booths). They attempt to prove it using Nehemiah 8:15: “They must announce and proclaim throughout all their towns and Jerusalem as follows, ‘Go out to the mountains and bring leafy branches of olive trees, pine trees, myrtles, palms and [other] leafy trees to make booths, as it is written [in the Torah].’”
Their interpretation falls short. From the verses of the Torah (in Leviticus) there is no implication, or even hint, as to what they mean, as the idea of the Sukkahs (booths) is only introduced two verses later without being connected in any shape or form to the Four Species. It seems that Nehemiah was only giving practical examples of what material the booths can be made of. In addition, the Karaites need to give their own interpretation of the definitions of the Hebrew terms for the Four Species in order to be able to make the passage in Nehemiah resemble the species. Yet they still cannot explain all five species mentioned in Nehemiah to be identical to the four mentioned in Leviticus (the source for the command of the Four Species). The fact that only some of the five species mentioned in Nehemiah are similar four species mentioned in Leviticus is far from enough to link the verses.
[8] Even according to the minority Talmudic opinion that the world was created on the first of Nissan (Rosh Hashanah 10b), there is still significance to the day of Rosh Hashanah beyond what is recorded in the Written Torah. Rosh Hashanah is the day that commemorates the inauguration of the Lord as our King. We also repent on this Day of Judgment.
[9] The Karaites understand this verse as not to be referring to the Shofar that is sounded, but rather the “loud noises” (which is what teruah, the word used in the verse, actually means if translated literally) that are to be done by our crying during prayer. They point to Joshua 6:5 where the word teruah is used for a “loud cry.” Yet their interpretation doesn’t avoid the question: what are we crying about? What are we commemorating if, after all, the verse does say a teruah “remembrance”? Does teruah actually mean crying, or does it perhaps—as is usual in Scripture—refer to the instrument blow (although the other verses usually contain an instrument word before or after)? Most importantly, their interpretation at most is a cute attempt to avoid the Oral Law and rabbinic understanding of Rosh Hashanah. Because when we look at Nehemiah 8:9-10, we see that Ezra and the leaders all understood the idea of Rosh Hashanah nothing like the Karaites and actually told the Jews not to cry but to fast and celebrate with joy!
[11] Even though Ezra 10:3 makes it clear that Jewishness is determined by the mother, the question still remains how the generations until Ezra’s times were to know the law—if not for the Oral Law.
[i] Dr. Joshua Berman in his book Ani Maamin p. 142-143 and in his book Inconsistency in the Torah p. 145-146; Myths of the Archaic State by Norman Yoffee p. 104.
[ii] The Torah seems to have been written over the 40-year period, as per the Talmudic opinion in Gittin 60a (this also seems to be the accepted view among later rabbis; see Rashi on Ex. 24: 4).
[iii] Leviticus 12:3.
[iv] Leviticus 35:3.
[v] Leviticus 23:27.
[vi] Leviticus 23:40.
[vii] Leviticus 23:24.
[viii] Numbers 29:1.
[ix] Leviticus 15:25.
[x] Talmud Kidushin 68b and Yevamot 23a.
[xi] http://www.womenintheancientworld.com/divorceinancientrome.htm
I agree. The Oral Torah began as early as the time of Moses. Deuteronomy is the first Oral Torah, and it continued since.