The dispute over the nature of the Oral Law in the nineteenth century sheds light on fundamental developments in modern Jewish thought. An attitudinal shift can be discerned in the modern period. If in the medieval period, oral transmission was perceived as preserving the accuracy and authentic meaning of the tradition, in modern times it was described, to the contrary, as a crucial means of adapting Jewish tradition to constantly changing environments and to the demands of each generation. This radical new assumption that the existence of an oral tradition reflected the ability of the halakha to change gave rise to countless arguments: if the writing of a text signifies stagnation, when did Jewish tradition lose its vitality? Who was responsible for thus turning the halakha into a fixed or even, according to some, a lifeless system by writing it down? The article addresses these and similar questions raised by the nineteenth-century Jewish scholars throughout Europe and shows how their answers reflect the governing ideologies of the various camps in Jewish society.
Our Rabbis taught: A certain heathen once came before Shammai and asked him: ‘How many Toroth have you?’ ‘Two,’ he replied: ‘the Written Torah and the Oral Torah.’ ‘I believe you with respect to the Written, but not with respect to the Oral Torah; make me a proselyte on condition that you teach me the Written Torah [only]. [But] he scolded and repulsed him in anger. When he went before Hillel, he accepted him as a proselyte. On the first day, he taught him, Alef, beth, gimmel, daleth; the following day he reversed [them] to him. ‘But yesterday you did not teach them to me thus,’ he protested. ‘Must you then not rely upon me? Then rely upon me with respect to the Oral [Torah] too’.
At the same time, many questions surround this vague concept. Perhaps the most significant question involves the theory of the OL: Why was there a need for an oral tradition alongside with the written one? Is a written text not more accessible and reliable? Why was the OL not committed to writing from the very beginning?
The following discussion does not attempt in any way to resolve the mystery of the OL itself but rather to illuminate the ways in which the OL was conceived throughout Jewish history. To be precise, the discussion focuses on a major shift that took place in the conception of the OL from the medieval to the modern period. The discussion includes a description of the shift itself, a search for its possible roots in earlier periods, and traces its impact and further developments in the course of the nineteenth century. However, before proceeding to the discussion, several clarifications regarding the perception of OL in Rabbinic literature itself are essential.
2 The Theory of OL in Rabbinic Literature
R. Judah b. Nahmani the public orator of R. Simeon b. Lakish discoursed as follows: It is written: Write you down these words, and it is written: the mouth of these words. What are we to make of this? It means: The words which are written you are not at liberty to say by heart, and the words transmitted orally you are not at liberty to recite from writing.
A Tanna of the school of R. Ishmael taught: [It is written] These--these you may write, but you may not write halakhot. R. Johanan said: God made a covenant with Israel only for the sake of that which was transmitted orally, as it says: For by the mouth of these words, I have cut with you a covenant, and with Israel.1
Although various verses are quoted in the sugya to justify the prohibition of writing the OL (=halakhot), the Talmud does not provide a reason: Why not allow recording the OL? In attempting to decipher this question, scholars have often consulted two central texts. The first appears in BT Eruvin (21b). Referring to the words of the Scribes (דברי סופרים), the Talmud states: “In case you should object: If they are of real value why were they not recorded [in the Torah]? Scripture stated: ‘Of making many books there is no end’.”2 Based on this text, some scholars suggest that the prohibition be linked to the canonization process of the Bible.3
Rabbi Judah bar Shalom said: When God said to Moses: ‘Write down’, Moses requested that the Mishnah be transmitted in writing, too. But God foresaw that, in the future, the nations of the world would translate the Torah in order to read it in Greek and would claim, “We are Israel.” So far the scales are balanced [i.e., there is no way of deciding definitively if the Jewish people are Israel or the foreign nations making the claim are Israel]. God says to the idolatrous nations: “You claim to be my children. I only recognize as my children those who possess my secrets...
Rabbi Judah bar Shalom said: God said to Moses: “Why are you requesting that the Mishnah be transmitted in writing? What’s the distinction between the Jewish people and the idolatrous nations? 4
According to this Midrash, the distinction between a written and an oral tradition involved its exposure. Whereas a written tradition is accessible to everyone, and is unavoidably subject to distorted interpretations, an oral tradition can remain secure within the Jewish people and thus maintain its true (=Jewish) original meaning.5
The significance of these two texts for understanding the perception of OL in ancient times is apparent. These sources were, no doubt, known to medieval scholars. Nevertheless, in trying to clarify the reasons for the prohibition against writing down the OL, they did not hesitate to pave their own paths, while reflecting the challenges of their day.
3 Perceptions of OL in Medieval Literature
As we approach the medieval period, new interpretations arise, perhaps less legendary and more philosophical in nature. Some Rabbis suggested that the prohibition indicated the importance of the WL and was meant to encourage scholars to pursue the study of the Bible,6 whereas others claimed that the prohibition was actually a reflection of the superiority of the OL.7 Maintaining the tradition orally required students to repeat it constantly and thus internalize it.8 Additional Rabbis claimed that the wide scope of the OL did not allow its recording in writing.9
Even the traditional Law, as you are well aware, was not originally committed to writing ... With reference to the Law, this rule was very opportune, for while it remained in force it averted the evils which happened subsequently, viz., great diversity of opinion, doubts as to the meaning of written words, slips of the pen, dissensions among the people, formation of new sects, and confused notions about particular subjects.10
The faculty of speech is to transmit the idea of the speaker into the soul of the hearer. Such intention, however, can only be carried out to perfection by means of oral communication. This is better than writing. The proverb is: ‘From the mouths of scholars, but not from the mouth of books.’ Verbal communication finds various aids either in pausing or continuing to speak, according to the requirements of the sentence, by raising or lowering the voice, in expressing astonishment, question, narrative, desire, fear or submission by means of gestures, without which speech by itself would remain inadequate. Occasionally the speaker even has recourse to movements of eyes, eyebrows, or the whole head and hands, in order to express anger, pleasure, humility or haughtiness to the degree desired.11
Because this interpretation can not be in writing, else the same uncertainty of which we spoke will attach to this writing as to the first, and we should require an interpretation of the interpretation, and so on without end. Thus the Mishnah, which is an interpretation of the written Torah, gave rise to doubt and confusion and required another interpretation namely the Talmud ... The Talmud, in turn, which is an interpretation of the Mishnah, required another interpretation, and so there is a multiplicity of commentaries on the Talmud and a variety of opinions....14
By adopting this view on OL, medieval scholars certainly revealed their conservative attempt to maintain and transmit the original tradition as accurately as possible.
4 The Revolutionary Approach to OL in Modern Literature
And if the Oral Law had been in writing, the rabbis would not have been able to make any innovations, and also the masses would not have accepted their decrees, relying instead only on what is written.16
Systems and Laws ... were not bound to words or written symbols which were to continue always the same, for all men, for all ages, all periods, amidst all the changes of language, manners, modes and relations of life ... They were entrusted to living, intellectual instruction, which may keep pace with all the changes of times and circumstances, and can be altered according to a pupil’s exigencies, and suited to his abilities and power of comprehension ... In the beginning it was expressly forbidden to write more about the law than God had caused Moses to signify to the nation.17
Like Levison, Mendelssohn portrayed the OL as playing an essential role in granting the rabbis a degree of flexibility, allowing them to adjust the law to the changing environment.
5 Earlier Inspiration
It is not surprising that Mendelssohn and Levison were vested in describing the OL as a means for introducing changes to, and allowing flexibility in, the halakha. In the Enlightenment period, when Jewish law was often perceived by Christians as obsolete, it was crucial to emphasize the relevance of the halakha and its ability to adjust to modern times. However, Levison and Mendelssohn were undoubtedly familiar with the predominant medieval understanding of OL, Maimonides’ above-quoted statement from the Guide in particular. And if so, what explains their drastic deviation from his theory on the concept of OL as ensuring preservation of tradition and preventing dissension?
When we studied together at the yeshivah of the wondrous gaon, Rabbi Shachna of blessed memory ... we, his students, begged him time and again to compile all the major laws in the correct order; and he ignored our pleas.18
Numerous times I and many other students asked that he [Shachna] record his decisions. His response evidenced his piety and great humility; he was more humble than any other man on earth. He said, “I know that they [future rabbis] will make their decisions only according to what I have written because of the principle that the halakha is like early authorities, and I do not wish all to rely on me.”19
Despite the obvious resemblance between Shachna’s and Mendelssohn’s theory—namely, the creation of a link between the writing down and the cementing of the Law—there are crucial differences: whereas Shachna desired to maintain the independence of future rabbis, and the pluralistic nature of halakha, he certainly did not allude to the need for halakha to adapt itself to future developments in time and place. Furthermore, Shachna’s theory was meant only to justify his personal policy of not recording his ideas in writing but not to define the essence of the OL. Nevertheless, I suggest that the tradition about Shachna may have inspired Levison or Mendelsssohn’s revolutionary approach to the concept of the OL.
6 Later Impact and Developments
Although it is no simple matter to determine the earlier Jewish sources of inspiration for the revolutionary approach to the OL in the late eighteenth century, its tremendous influence on nineteenth-century Jewish scholarship is clearly evident.
For me, the relationship between the Written and the Oral Law is the same as that between letter and word: the letter exists and the word flourishes; the letter is rigid and the word is vital. Each has its advantages and disadvantages and, taken together, they prevent religious life from dissolution, on the one hand, and from stagnation, on the other.20
To this day Israel’s enemies constantly mock us with passages drawn from various places in the Talmud. And those who attempt to refute them can do nothing. Whereas the true answer is thus: the Sages of the Mishnah and Talmud made many statements that were appropriate for the context in which they made them. And it never occurred to them that everything they said would be committed to writing ... For they were truly wise and did not put their words in writing so leaders of future generations might fix and change them according to the needs of changing times and places.23
In that sense, Luzzatto stood in contrast not only to medieval but also to ancient theories of OL. Whereas the sages were proud and protective of their tradition, Luzzatto felt embarrassed by it and wished to minimize its access to strangers. If students did not violate the prohibition and kept their tradition orally, much confusion and embarrassment could have been avoided.24
As one might expect, Orthodox figures were not eager to adopt this modern liberal theory of OL. Indeed, Rabbi Moses Sofer (1762-1839), the leader of Orthodoxy in Hungary, repeated the notion put forth by the medievalists, describing the literary culture as a threat to tradition and the oral environment as a guarantee for its preservation (as a matter of fact, Sofer did not publish his own writings, claiming that the Talmudic prohibition was still intact).25 Nevertheless, it seems that at least some Orthodox Jewish scholars were influenced by this revolutionary theory, even if they did not accept it as a whole. Such was the case of Rabbi Jacob Zevi Meklenburg (1785-1865).
In his earlier writings, Meklenburg adopted the medieval view of the OL as a tool for its preservation.26 But after the rabbinical assemblies of the 1840s, Meklenburg redefined his conception of OL, perhaps as a reaction to them. According to Meklenburg’s new theory, the purpose of this dual tradition was to increase the challenge and reward of the observant Jew. The lawgiver deliberately provided an ambiguous text that requires additional interpretation. One can easily attribute anything he desires to the text and adapt it to his own taste. The challenge now is not only to adhere to the text but also to interpret it according to the authoritative tradition.27
At first glance, Meklenburg’s view seems to be an attack on liberal thinkers who adapt halakha to their needs. However, it actually demonstrates a great resemblance: Meklenburg agreed that a written text could in theory provide a clear message and that the conception of OL was meant to add some blurriness to the tradition and to allow numerous interpretations of the WL. In other words, what liberal scholars described as an opportunity, Meklenburg viewed as a challenge.
7 From Theory to History
He (=Rabbi Judah the Patriarch) gathered together all the traditions, enactments, interpretations and exposition of every portion of the Torah ... All this material he redacted in the Mishnah, which was diligently taught in public ... Copies of it were made and widely disseminated, so that the Oral Law might not be forgotten in Israel.29
Although several discussions were devoted to this dilemma in the medieval period,30 one does not receive the impression that this matter was dominated by ideological considerations. It was certainly Maimonides’ approach that became the prevailing one among leading scholars in the sixteenth to eighteenth centuries.31 Perhaps, once the printed book had become so dominant in any learning community, it was hard to perceive of a tradition that did not rely on written texts.
The revolutionary understanding of the OL in the latter part of the eighteenth century dramatically influenced the discussion of this historical question in the nineteenth century. The assumption that the existence of an oral tradition reflected the ability of the halakha to change led to endless debates: When did Jewish law lose its vitality? Who was responsible for turning the halakha into a fixed or perhaps a lifeless system by writing it down?
Here, too, we must distinguish between various approaches. Radical liberal scholars, who were not bound by the authority of the Mishnah and the Talmud, continued to maintain the prevailing Maimonidean approach and assumed that it was indeed Judah the Prince who violated the prohibition against the recording of the OL. Such an assumption supported their belief that the Tannaim and Amoraim were the ones who distorted the Jewish religion by introducing endless laws and customs.32
If people could only understand that our sages did not write down as much as one page, but their disciples preserved in their memory every word, every scrap of conversation, they heard from their mentors, because they believed that everything uttered, even conversationally, deserved preservation ... and that only after some generations had passed was everything written down, if all this could be understood, the Mishnah and the Talmud would be regarded in a different light.33
On numerous occasions, in publications and private correspondence, Luzzatto tried to convince the leading scholars of the day to adopt Rashi’s approach, and indeed, Luzzatto succeeded greatly in turning this historical reconstruction of the OL into a popular one. Not only in Italy, but throughout Europe, Jewish scholars such as Heinrich Graetz34 and Solomon Judah Leib Rapaport (Shir, 1790-1868)35 adopted this view. Maimonides’ view of this matter could no longer be taken for granted.
Finally, it is important to note that Orthodox thinkers did not adopt Luzzatto’s approach and, despite his declared wish to defend the Sages, continued to adhere to Maimonides’ reconstruction of the history of the OL. From their perspective, portraying the legal system as dynamic and flexible only contributed to the justification of further changes in the halakha.36 Like the radical liberals mentioned earlier, they too preferred to portray a stable legal system, although for opposite reasons. It was a historical irony that led to agreement between these opposite poles.
8 Concluding Remarks
This, as everyone knows, is the way of the Torah: an individual is not beholden to accept the opinion of his colleague that, according to his own view and discernment, is not true. Can this be the way of truth, that Jewish scholars promulgate something that in their innermost conviction is not true - that they negate an idea that they see as compelling?
But Weiss was certainly an exception. As in other instances, the boundaries of tradition and scholarship were vague and blurry in the work of the pioneering scholars of modern Jewish Studies.
* The following paper is an abbreviated version of a much larger project devoted to the treatment of OL in the nineteenth century and is partially based on lectures I delivered at Oxford University (2013) and at the Katz Center for Jewish Studies in Philadelphia (2014). See also PT Megillah 74d; BT Temurah 14b.
Compare also to Kohelet Rabbah 12: “Anyone who brings into their home more than 24 books- brings a riot into their home.”
See Ya’aqov Sussman, “Torah she-be-’al peh: Peshutah ke-mashma’ah,” Mehqere Talmud 3 (2005), pp. 372-373.
See: Midrash Tanhuma to Exodus 34, 27; PT Pe’ah 17a; PT Hagigah 76d. On this Midrash, see also: Menahem Elon, “The Law, Books and Libraries,” National Jewish Law Review 2 (1980), pp. 1-30.
The clear allusion to the Jewish-Christian polemic was detected by many scholars. See, for example, Ephraim Elimelech Urbach, “Halakha u-nevuah,” Tarbiz 18 (1946-1947), pp. 6-8.
See: Profiat Duran, Ma’ase Efod, Vienna 1865, in the introduction:ומיראתו שלא יתמעט העסק בתורה שבכתב מפני עיון המקובל לא רצה שיעלה על ספר דבר ממנו.
See, for example, R. Isaac ben Joseph of Corbeil, Sefer Mitzvot Qatan, Jerusalem 2005, ch.105:אלתחשובכיעיקרהתורהבכתב, כיאדרבהעלפה... לפיכך.לארצהשתכתב.
As one of the medievalists phrased it:כל חכמה אשר לא תכנס עם בעלה לבית המרחץ אינה חכמה, or another: כדישלאיסמכועלהכתובבעורותהבהמותהמתות.אבלעלליבםיכתבוהדברים.
See: Judah ben Samuel, Sefer Hasidim, Jerusalem 1957, ch. 985:ואילוהיהמפרשכלדיבורודיבורהיהצריךלהרבותקלפים...והתורהחסהעלממונןשלישראל.ואיןיכוליןלקנותכלםקלפים, וגםאיןכלםיודעיםלכתוב...ועודאדםעוסקבמלאכתו.
See: Moses Maimonides, Guide of the Perplexed 1:71.
See: R. Judah Ha-Levi, Sefer Ha-Kuzari, 2, 72. On Ha-Levi’s approach, see also: Raphael Jospe, “The Superiority of Oral over Written Communication: Judah Ha-Levi’s Kuzari and Modern Jewish Thought”, in: From Ancient Israel to Modern Judaism, Intellect in Quest of Understanding, Essays in Honor of Marvin Fox, Vol. 3, pp. 127-156.
See: Plato, Phaedros: “writing is unfortunately like painting; for the creations of the painter have the attitude of life, and yet if you ask them a question they preserve a solemn silence. And the same may be said of speeches. You would imagine that they had intelligence, but if you want to know anything and put a question to one of them, the speaker always gives one unvarying answer. And when they have been once written down they are tumbled about anywhere among those who may or may not understand them, and know not to whom they should reply, to whom not: and, if they are maltreated or abused, they have no parent to protect them; and they cannot protect or defend themselves.”
See: Cassl, Teshuvot Geonim Qadmonim, 46 (translated in: Brody, The Geonim of Babylonia and the Shaping of Medieval Jewish Culture, New Haven, Yale University Press 1998, p. 55) : “if you were before us it would be possible to explain them very well... but in writing, how much is possible?”
See: R. Joseph Albo, Sefer Ha-’Ikkarim, 3, 21.
On Levison, see: Moshe Pelli, “Mordechai Gumpel Schnaber, The First Religious Reform Theoretician of the Hebrew Haskala in Germany,” JQR 64 (1973-1974), pp. 289-313; David B. Ruderman, Jewish Thought and Scientific Discovery in Early Modern Europe, Yale University Press, New Haven and London 1995, pp. 332-368; Heinz Mosche Graupe, “Mordechai Shnaber-Levison, The Life, Works, and Thought of a Haskalah Outsider,” LBIYB 41 (1996), pp. 3-20.
See: Mordechai Gumpel Schnaber Levison, Ma’amar Ha-Torah ve-ha-Khokhma, London 1771, introduction, p. 2.
See: Moses Mendelssohn, Jerusalem: A treatise on Ecclesiastical Authority and Judaism, London 1838, pp. 110-111. See also pp. 138-139.
See: Hayyim ben Bezalel, Vikkuah Mayyim Hayyim, Amsterdam 1712, 4b-5a: כיבעתשלמדנויחדבישיבתהגאוןהמופלאמוהר”רשכנאז”ל... אנחנו.תלמידיוהפצרנובופעמיםהרבהללקטולחבריחדאתכלדיניהאיסורוהיתרבסדרנכון, ואמרנואשלדברינ.
See: R. Moses Isserles, She’elot u-Teshvot ha-Rama, Jerusalem 1972, ch. 25:דזמניןסגיאין)=פעמיםרבות( בקשתיעםהרבהלומדיםממנושיעשהפוסק, ותשובתוהיתהמחמתרובחסידותווענותנותו, אשרהיהעניויותרמכלהאדםאשרעלפניהאדמה, ואמר: יודעאנידשובלאיפסקוכיאםכאשראכתוב, מטעםדהלכהכבתרא, ואיןרצונישיסמכוהעולםעלי.. This particular passage was actually written by Rabbi Shalom Shachna’s son, Israel, but inserted in Isserles’ responsa.
See: Rabbi Leopold Stein, Protokolle der dritten Versammlung Deutscher Rabbiner, abgehalten zu Breslau, 1846. This conception of the OL also appeared frequently in the writings of the liberal rabbi, Aharon Chorin, see: Moshe Pelli, “Milhamto ha-Raayonit ve-ha-hilkhatit shel ha- Rav Ahron Chorin be’ad reforma datit ba-yahadut,” HUCA 39 (1968), Hebrew section, pp. 63-79.
See: Leopold Zunz, Die gottesdienstlichen Vorträge der Juden historisch entwickelt in Beitrag zur Alterthumskunde und biblischen Kritik, zur Literatur- und Religionsgeschichte, Frankfurt 1892, pp. 62, 182. This concept of OL appeared in Zunz’s sermons as well.
See: Heinrich Graetz, Geschichte der Juden, 4, Leipzig 1908, pp. 202, and note 35, pp. 459-460. It seems that this was also the opinion of Zacharias Frankel, Darkhe ha-Mishnah, Warsaw 1923, pp. 229-230.
See: Samuel David Luzzatto, “Teshuva,” Hamaggid 9 (1865), pp. 61-62.
See also: Morris B. Margolies, Samuel David Luzzatto: Traditionalist Scholar, Ktav Publishing House, New York 1979, pp. 65-67.
See: She’elot ve-Teshuvot Hatam Sofer, Jerusalem 1970, vol. 2, introduction to Yoreh de’ah.
See: Meklenburg, Ha-Ketav ve-ha-Kabbalah, 4th edition, Berlin 1880, pp. vii-x, note 2.
On Meklenburg’s view of OL, see: Jay Michael Harris, How Do We Know This? Midrash and the Fragmentation of Modern Judaism, State University of New York Press, New York 1995, pp. 212-220.
See Rashi on Shabbat 6b, 13b, 96b; Eruvin 21b, 62b; Sukkah 28b; Bava Mezia 33a. A similar approach was taken by the Tosafot on Hulin 110b.
See: Maimonides’ Introduction to his Commentary on the Mishnah, translated and annotated by Fred Rosner, Northvale, New Jersey 1995. See also: Abraham Ibn Daud, Sefer ha-qabbalah, edited and translated by Gerson D. Cohen, Philadelphia: Jewish Publication Society of America 1967, Hebrew section, p. 23.
See especially in the lengthy introduction of Rabbi Isaac Stein’s commentary to Sefer Mitzvot Gadol of Moses ben Jacob of Coucy, Jerusalem 1993-2003. Rabbi Isaac Stein died in 1495, but his commentary was edited by his son and was published only in 1547.
See: Shelomoh ben Yehi’el Luryah, Sefer Yam shel Shelomoh ‘al Masekhet Bava kama, Jerusalem 1995, introduction; Yom Tov Lipman Heller, Tosafot Yom Tov, Prague 1615-1617, Bava kama, 10, 3; Gedalyah ben Yahya, Sefer Shalshelet ha-Kabalah, Amsterdam 1696, introduction, and many more.
See, for example, Abraham Geiger, “Einiges über Plan und Anordung der Mischnah”, WZJT 2 (1836), pp. 474-492.
See: Samuel David Luzzatto, Iggrot Shadal, Jerusalem 1967, vol. 2, p. 1062.
See: Heinrich Graetz, Geschichte der Juden, 4, Leipzig 1908, p. 202, and note 35, pp. 459-460, and Heinrich Graetz, “Die Mischnah in mündlicher Überlieferung erhalten,” Monatsschrift für Geschichte und Wissenschaft des Judentums 22 (Breslau, 1873), pp. 35-41.
See: Solomon Judah Rapoport, Iggrot Shir, Jerusalem 1885, pp. 93; Solomon Judah Rapoport, ‘Erekh milin, Jerusalem 1970, pp. 6-13, but in other places as well.
See, for example, Rabbi Israel Hazzan’s (1808-1862) critique of Samuel David Luzzatto, in his commentary to Sefer Teshuvot ha-Geonim, Livorno 1869, p. 103b:אםמטעםכילפיהדורבסכנתתורהשבעלפהשאנובו- ראוילהכריענגדדעתוז”למבלישוםריחספק.
See also the comment of Elia Benamozeg (1822-1900) to Israel Hazzan, in: Sefer Teshuvot ha-Geonim, Livorno 1869, pp. 103b: חוששניכיייתןמקוםלמיניםלרדותעלדברתההכרעהלפיהדור, כיהאמתלאתשתנהבשוםזמן, ומהלנולטרוחאלתכליתזמניי, אםלאיקובלבכלעתובכלמצב, והאמתהיאאהובהמצד.עצמה, ומצוהנוהגתבכלמקוםובכלזמן.