On Tradition and Dynamism: C. Between Factual and Normative Tradition (Column 624)

In the previous two columns I presented two conceptions of tradition: a rigid tradition (the cedar model) that advocates transmitting information through a hollow conduit, without touching it; and, in contrast, a dynamic tradition (the reed model) that advocates transmitting information while processing, interpreting, and refining it. I argued that, as a matter of fact, tradition is clearly dynamic (the “telephone game”), and whoever thinks otherwise simply lives within an ethos that ignores—or at least is unaware of—the dynamism necessarily embedded in tradition. I also argued, in favor of the dynamic conception, that it has two advantages: an instrumental one—it aids survival and coping with changing opinions and circumstances; and an essential one—it enables us to reveal further facets within the very tradition we received, facets we had not previously noticed. In many cases these additional facets are revealed (or erupt?) through controversy and plurality of views. In the previous column I focused on the survival advantage of dynamism, which rescued us from a dead-end controversy that threatened to break apart the people of Israel and the Torah. In the next column I will turn to the essential advantage of a dynamic tradition.

Before that, however, I wish to touch on the difference between an ethos and factual truth, and to clarify the odd state of living within an ethos that does not reflect reality. From this we can understand how a person can live with the feeling of a cedar-style tradition and hollow conduits, while in practice he himself processes, interprets, and refines it.

A reminder: The Ra’ayah on R. Eliezer the Great

At the end of the previous column I tried to illustrate this through the words of the Ra’ayah (Rav Kook) about R. Eliezer the Great. On the one hand, he thought he merely transmitted his teachers’ words and had never said anything he had not heard from his master; yet in practice he innovated and processed that tradition, saying things no ear had ever heard. He lived with the sense of being a hollow conduit, though the truth is he was very far from it. R. Eliezer feels that everything he says was given to Moses at Sinai (as you’ll recall, Abaye and Rava studied in Yiddish), but the truth is altogether different. Desire blinds a person from seeing reality; he interprets it according to the wishes of his heart. We will return to R. Eliezer below, but I will begin with a discussion of Maimonides’ conception of tradition.

Maimonides on tradition and on “halakha le-Moshe mi-Sinai”

Maimonides takes a very firm stance regarding tradition. In his Introduction to the Commentary on the Mishnah, after describing how the Torah was transmitted from Moses to the people following the Sinai revelation, he writes:

“The rulers would disperse throughout all Israelite households to teach and review until they knew that Scripture and mastered its reading; and they would teach them the explanation of that Scripture which was given by God, and that explanation encompasses general matters. They would write the Scripture and remember the received interpretation orally; and thus the sages, peace be upon them, say: the Written Torah and the Oral Torah. And they said, peace be upon them, in the baraita: ‘And the Lord spoke to Moses at Mount Sinai’—why ‘at Mount Sinai’? Was not the entire Torah said at Sinai? Rather, to tell you: just as with [the laws of] the sabbatical year its general principles, particulars, and fine details were said at Sinai, so too all the commandments—their general principles, particulars, and fine details—were said at Sinai.”

Up to this point, one might understand that the laws of the Torah themselves were all given to Moses at Sinai. But his intent is not that everything in the Oral Torah as we have it in all its particulars was handed to Moses. Everything written in the Written Torah was indeed given to Moses, but over the generations Sages added interpretations and expansions. I do not mean rabbinic decrees (derabbanan) here, but Torah-level laws (de’oraita), for the overwhelming majority of them are the product of Sages across the generations and do not appear in the Torah and were likely not given to Moses orally.

Immediately afterward he continues and writes:

“Here is an example: God said, ‘You shall dwell in booths (sukkot) seven days,’ and He also made known that sukkah is an obligation for males and not females, and that the sick and travelers are exempt; and that it may be covered (sakhakh) only with that which grows from the ground; and it may not be covered with wool, silk, or garments—even if from that which grows from the ground, such as mats and clothes; and eating, drinking, and sleeping shall be in it all seven days; and its interior space shall not be less than seven handbreadths by seven handbreadths; and its height shall not be less than ten handbreadths. And when the messenger [Moses], peace be upon him, came, he received this commandment and its explanation. And thus it is with all the 613 commandments—them and their interpretations. The Scripture is written on scrolls and the interpretation is oral.”

It appears that in his view, all Torah-level laws with their particulars were given to Moses at Sinai.

He then writes:

“And when [Moses] died, peace be upon him, and he had already transmitted to Joshua the explanations that were given to him, Joshua and the men of his generation engaged in them. Everything that he [Joshua] received from [Moses] or from one of the elders involves no disputation and no controversy ever arose about it; but regarding that which they had not heard from the prophet, peace be upon him, its branches involve disputation, and the law is learned through analytical methods—the Thirteen Principles given to him at Sinai—namely, the Thirteen Middot by which the Torah is expounded. And among those matters learned there are some about which no dispute arose, for all agreed; and some about which a dispute arose between two opinions—this one adjudicated one way and it was strengthened in his eyes, and that one adjudicated another way and it was strengthened in his eyes—for the paths of demonstrative analogy may, in their outcomes, be subject to such contingencies. And when such disputes arise, they follow the majority, as Scripture says, ‘After the majority you shall incline.’”

Everything received from Sinai never became the subject of controversy. Only what was not heard from Moses (but was later derived by the Thirteen Middot or by interpretive methods) can fall into dispute.

And later he wonders:

“One might claim: if the explanations of the Torah were received from Moses, as per the rules we cited when we mentioned that ‘all the Torah was said with its general principles, particulars, and fine details at Sinai,’ then what are those particular laws that they called ‘a law given to Moses at Sinai (halakha le-Moshe mi-Sinai)’?”

If everything was given at Sinai, why are the laws that the Sages label “halakha le-Moshe mi-Sinai” so few? Not everything transmitted from Sinai and never disputed is called “HLMM.” In short, what distinguishes those particular laws called “HLMM”?

At the start of his explanation he prefaces that there are laws transmitted from Sinai that nonetheless were given a scriptural anchor:

“Know this foundational point. The explanations received from Moses involve no dispute whatsoever, for until now we have not found any time from Moses our Teacher to Rav Ashi where one sage said that one who blinds another’s eye is himself blinded, as the verse says ‘eye for eye,’ while another said he owes only monetary payment. Nor have we found dispute about the meaning of ‘fruit of a beautiful tree’—that one says it is the etrog and another says it is the peach or the pomegranate or other; nor have we found dispute that ‘boughs of thick-leafed trees’ means the myrtle; nor dispute that the phrase ‘you shall cut off her hand’ [Deut. 25:12] refers to monetary compensation; nor regarding ‘and the daughter of a priest, should she begin to commit harlotry, she profanes her father—she shall be burned in fire’—that this punishment is enforced only if she is a married woman. Likewise with the punishment for one found not to be a virgin who is stoned—we have never heard anyone dispute since the days of Moses that this applies only if she was a married woman and, with witnesses and warning, committed adultery after betrothal. And all such matters throughout the commandments have no dispute, for they are explanations received from Moses; and it is with respect to these and the like that they said: all the Torah was said with its general principles, particulars, and fine details at Sinai. Yet although they are received and undisputed, from the precision of the Scripture given to us, it is possible to learn these explanations via methods of law, supports (asmachtot), hints, and indications in the text. Thus, when you see in the Talmud that they debate and dispute analytically and bring proof for one of these explanations and the like—as when they discuss the verse ‘fruit of a beautiful tree’ and suggest perhaps it is the pomegranate or the peach or others, until they bring proof from ‘fruit of a tree’—‘a tree whose wood and fruit taste alike’; and another says ‘a fruit that remains ‘beautiful’ (hadar) on its tree from year to year’; and another says ‘a fruit that dwells (hadar) upon all waters’—this is not because they were in doubt until they learned by these proofs. Rather, we know without any doubt from Joshua until now that the etrog is taken with the lulav every year and there is no dispute about this; they were only investigating the indication in Scripture for the received explanation.”

What was transmitted to Moses is not subject to dispute. At times, however, they seek a supporting derivation from Scripture. In any case, even if a derivation is brought to support that tradition, it is still an HLMM. He must still explain which laws are labeled “halakhot le-Moshe mi-Sinai”:

“Any matter that has no hint in Scripture, no support, and cannot be derived by any of the Middot—only about such do we say ‘a law given to Moses at Sinai.’ Therefore, when we said measures (shi’urim) are a law given to Moses at Sinai, we challenged this: how can you say they are HLMM when the measures are hinted at in the verse ‘a land of wheat and barley…’? The answer: they are HLMM, with no basis to derive them by any Middah and no hint anywhere in the Torah; they merely attached them to this verse as a mnemonic so they would be kept and remembered—this is not the meaning of the verse. And this is what they mean when they say ‘it is merely an asmachta’ wherever that expression appears. I will arrange here the majority—perhaps all—of the laws said to be HLMM, so that it will be clear that none of them is learned by any Middah and cannot be learned from a verse except by way of asmachta, as explained; nor do we find any disputation about them at all nor any proofs brought for them—rather they were received from Moses as God commanded him.”

That is, only laws with no textual anchor are called “HLMM.” But there are far more laws that were given to Moses at Sinai; in light of the above, these are all the laws about which no dispute arose.

Two possible readings of Maimonides

There is room to debate his intent. One may understand that anything about which a dispute did arise was necessarily not transmitted at Sinai—the assumption being that tradition is completely reliable and no error or disagreement ever occurred within it. Alternatively, if a dispute arose about some law, then what we possess is the majority ruling or the consensus of the Sages and not necessarily what was originally given to Moses. Therefore it is not termed “a law given to Moses at Sinai,” not because God did not transmit it to Moses but because what we presently hold is not necessarily that which was transmitted. Note that this second approach does not assume absolute reliability of tradition: some things were given at Sinai and became corrupted and disputed; yet after the dispute was resolved and the binding law established, we cannot refer to it as HLMM.

In light of what Maimonides wrote above, it seems he holds that everything was given to Moses at Sinai, but some things were forgotten, and thereby disputes arose; those are not called HLMM. That is, he is not claiming that nothing given to Moses at Sinai ever became disputed, but rather that once a dispute exists we cannot assert that what we have is what was given to Moses at Sinai (for the Sages may have erred in reconstructing it).

But as we saw above, he explicitly writes otherwise:

“Everything that he [Joshua] received from [Moses] or from one of the elders involves no disputation and no controversy ever arose about it.”

It thus appears that he really does claim that what was transmitted from Sinai cannot become the subject of dispute. Especially regarding HLMM—about which it is clear they were given at Sinai—no dispute can arise. Several later authorities understood him this way (such as the Chavot Yair, §172, and others).[1]

In his book Nata Betokhenu, Rabbi Shmuel Ariel suggests that according to Maimonides only when a sage says “I received [this]” about some law is it immune from dispute; but he does not make a sweeping claim that HLMM can never be disputed (see the reproduced pages there, starting at the end of the first page). But it seems to me that Maimonides’ words above show otherwise. For example, in the following sentence:

“And this is a foundational point you must know: the explanations received from Moses involve no dispute whatsoever.”

And at the end of the last passage we cited:

“I will arrange here the majority—perhaps all—of the laws said to be HLMM … and we have not found that they engaged in disputation regarding any of them at all, nor did they bring any proof—rather they were received from Moses as God commanded him.”

It seems explicit that in his view there is no dispute at all regarding HLMM.

Moreover, the assumption that a person’s declaration that a law in his hands is by received tradition prevents the possibility of dispute is naïve and factually false. In the previous column we saw that R. Eliezer held all his teachers’ Torah, and yet his proclamations that these were received from Moses at Sinai did not help him; his colleagues and students disputed him nonetheless. Likewise in the sugya of the rebellious son: a person can declare that he himself sat upon the grave of a rebellious son, and that does not prevent his disputant from claiming that a rebellious son “never was and never will be” (see Sanhedrin 71a, and more below). In short, facts do not impress us much. I think the reason is actually a healthy sobriety regarding tradition: the assumption that tradition does not get corrupted—that if you announce you have a tradition you must be right—is incorrect. The telephone-game effect is a fact we cannot deny. Therefore the Sages sometimes preferred their own reasoning (at least when they had great confidence in it) over traditions that reached them. Traditions can be corrupted, and logic, in their view, is a stronger tool.

The difficulties

How does this square with Maimonides’ claim that all Torah-level laws in all their particulars were given to Moses at Sinai? One would expect that no dispute should arise regarding any Torah-level law. Alternatively, one must say that there are many Torah-level laws that are not from Sinai—this, however, does not sit well with his words cited above.

Moreover, in previous columns we saw that, factually, this thesis is highly implausible. The telephone-game phenomenon should have introduced distortions into the transmission of tradition. It is very hard to suppose that everything received at Sinai passed down verbatim without any distortion. As just one example, the Talmud (Shevuot 26a) brings the following case:

“The Master said: ‘[The verse] “when a man [takes an oath]” excludes one who is coerced.’ What are the circumstances? As in [the case of] Rav Kahana and Rav Assi: when they would stand before Rav, one said, ‘By oath: thus did Rav say,’ and the other said, ‘By oath: so did Rav say.’ When they came before Rav, he ruled like one of them. The other said to him, ‘Then I swore falsely!’ He said to him, ‘Your heart coerced you.’”

Two of Rav’s choicest students, Rav Kahana and Rav Assi, heard a halakhah from his mouth, and each was convinced he had heard the opposite of the other—to the point that each swore to it. In a single act of transmission of a single detail—from Rav to two students—a controversy arose from one extreme to the other. Can one seriously claim that in the entire Oral Torah transmitted from Moses at Sinai over tens and hundreds of generations no disputes and distortions arose?!

Moreover, the Talmud (Temurah 16a) describes a massive forgetting that befell the Torah we received from Moses:

“Rav Yehudah said in the name of Shmuel: Three thousand laws were forgotten during the mourning for Moses. They said to Joshua, ‘Ask [prophetically]!’ He said to them, ‘It is not in heaven.’ They said to Samuel, ‘Ask!’ He said to them, ‘These are the commandments—no prophet may innovate anything henceforth.’ R. Yitzḥak Nappaḥa said: Even the law of a sin-offering whose owners died was forgotten during the mourning for Moses. They said to Pinḥas, ‘Ask!’ He said to them, ‘It is not in heaven.’ They said to Elazar, ‘Ask!’ He said to them, ‘These are the commandments—no prophet may innovate anything henceforth.’ Rav Yehudah said in the name of Rav: When Moses our Teacher was about to depart to the Garden of Eden, he said to Joshua, ‘Ask me all your doubts.’ He said to him, ‘Master, did I ever leave you for even an hour? Is it not written of me, “His attendant Joshua son of Nun, a youth, did not depart from within the tent”?’ Immediately Joshua’s strength weakened and three hundred laws were forgotten from him, and seven hundred doubts arose. All Israel rose up to kill him. The Holy One, blessed be He, said to him, ‘It is impossible to tell you [now]. Preoccupy them with war,’ as it is said, ‘And it was after the death of Moses, the servant of the Lord, that the Lord said…’”

The Talmud says that in the forty days of mourning for Moses thousands of HLMM were forgotten. Interestingly, it then adds that derivations too were forgotten:

“A tannaitic teaching states: One thousand seven hundred ‘light-and-heavy’ [kal va-ḥomer], ‘gezerah shavah,’ and ‘fine points of scribes’ were forgotten during the mourning for Moses. R. Abbahu said: Even so, Othniel ben Kenaz restored them through his dialectic, as it is said, ‘And Othniel son of Kenaz, Caleb’s brother, captured it; and he gave him Achsah his daughter as wife.’”

But the derivations Othniel restored through dialectic (he simply re-derived them). The laws, by contrast, cannot be reconstructed; they are information, and once lost, they are lost.

Maimonides himself brings the passage about the students of Hillel and Shammai who did not serve their teachers sufficiently, and so disputes abounded. What is that if not distortion through forgetting? Indeed, in his Introduction to the Mishnah Maimonides classifies laws into five types, and regarding the third type—laws derived by the Middot—he addresses the disputes of the students of Hillel and Shammai and writes:

“But the opinion of one who thinks that even laws in dispute were received from Moses, and the dispute came about due to an error in receiving or forgetting—so that one side is correct in his receipt and the other erred, or forgot, or did not hear all that he needed from his master; and he brings proof from ‘when the students of Shammai and Hillel multiplied, who had not served their masters sufficiently, dispute multiplied in Israel and the Torah became like two Torahs’—I swear by the life of God, this is a repugnant and strange notion, incorrect and inconsistent with principles, and it casts aspersions on those from whom we received the Torah; all this is null. What led them to this fallacious view was their scant knowledge of the words of the Sages in the Talmud, for they found that the explanation is received from Moses—which is correct according to the principles we prefaced—but they did not distinguish between received general principles and novelties derived [by analysis].”

“But if you have any doubt, certainly you will not doubt the dispute between Beit Shammai and Beit Hillel about whether one first sweeps the house and then washes the hands or first washes the hands and then sweeps the house; neither view is received from Moses nor heard at Sinai. The cause of their dispute is, as they said, that one forbids using an am ha’aretz [ignorant person] and the other permits, and so with all similar disputes that are branch-of-branch-of-branches.”

“As for their statement, ‘When the students of Shammai and Hillel multiplied, who had not served their masters sufficiently, dispute multiplied in Israel’—the meaning is very clear: two people equal in understanding, analysis, and knowledge of the principles from which one learns by any of the Middot will not have disputes about what is learned by a Middah at all, and if they do, it will be minimal—just as we do not find many disputes between Shammai and Hillel themselves—because the manner of their study in anything they learned by a Middah was close to each other, and the correct principles possessed by one were possessed by the other. But when the study of their students diminished and their methods of law weakened compared to their masters, disputes fell among them during debate in many matters, since each adjudicated according to the power of his intellect and the principles known to him. They are not to be blamed for this: we cannot compel two disputants to argue at the level of Joshua and Pinḥas; nor are we permitted to cast doubt on what they disputed because they are not like Shammai and Hillel or above them, for God did not obligate us thus. Rather, He obligated us to heed the Sages—whatever generation they may be—as it says, ‘and you shall come … to the judge who will be in those days’ [Deut. 17], and you shall inquire. And in this way dispute arose—not that they erred in their reception, with one’s reception true and the other’s false. How clear these matters are to one who contemplates them, and how great this foundation is in the Torah.”

He explains that these disputes arose only regarding laws not transmitted from Sinai but newly derived by the Middot. The fact that they “did not serve [their teachers] sufficiently” led to diminished intellect and decline in understanding of the methods of legal and interpretive inference, and thus disputes arose. But I do not see how forgetting and dispute can apply to the methods of derivation (which themselves are HLMM, according to Maimonides), yet cannot apply to the content of the transmitted laws. This is puzzling.

The Chavot Yair, §172, discusses Maimonides’ words at length and surveys many HLMM about which we explicitly find disputes in the Talmud. He offers explanations (some more convincing, some less) for a portion, but not all. In the end, Maimonides’ words require analysis. It is unclear how he can assert that nothing transmitted to Moses at Sinai was ever disputed and that nothing was forgotten, when factually and logically it is clear that such things always become distorted, forgotten, and subject to interpretation.

There the Chavot Yair asks (I think, with some irony):

“From the Talmudic discussion we can also answer the question: God should have given the entire Oral Torah as HLMM in order that it not be forgotten—meaning, we would thereby gain that we not come to forgetting and stammering, which is the source of disputes. And our Talmud answers why it was not written: ‘Of making many books there is no end’—and this answer applies to both. Thus the words of Tosafot and Maimonides align.”

He challenges Maimonides: why did God not give the entire Oral Torah in HLMM format—this would ensure it would not be forgotten (for according to Maimonides, HLMM are not forgotten and never disputed). He says that Eruvin 21 answers why not everything was written (not to multiply endless books), and that also answers this question. I wrote that this seems ironic, for what would it even mean to “give a law as HLMM”? All laws were given thus; yet some were forgotten. Would merely calling a law “HLMM” guarantee we will not forget it?!

Relating to laws that were reconstructed and established

The Talmud in Temurah, further on there, says that among the forgotten laws was the rule of a sin-offering whose owners died. In practice we know that law: it is left to die (Mishnah Me’ilah 3:1; Temurah 2:2; Gemara Nazir 21b), and it is codified by Maimonides (Laws of Disqualified Consecrated Animals 4:1). Evidently this is a reconstruction of the law that had been forgotten—perhaps successfully (or not) derived by logic or by some derivation. In any case, the question is how to relate to this law. Can we call it HLMM? We have no way to know that this is indeed the law originally received, for that law had vanished from us. Perhaps what was decided does not match what was transmitted to Moses at Sinai. How can we know we did not err? Note that there is a dispute about how to put it to death (by human hands, by starvation, or by feeding it barley until its belly bursts). See also a tannaitic dispute in Temurah 15a about the very law. This may be the result of forgetting; but the very fact that it dies might still be remembered from the Mosaic law. Even so, this does not resolve our difficulty, for according to each view regarding the mode of death one can still ask whether it is an HLMM or not.

The Encyclopedia Talmudit (vol. 9, entry “Halakha le-Moshe mi-Sinai”) brings a list of HLMM that were forgotten and later restored by Sages:

“In several HLMM they said that they were received at Sinai and were forgotten and later restored, such as the measures for punishments—what amount of forbidden foods incurs liability—which are HLMM, and they were forgotten and the court of Yabetz—Othniel ben Kenaz—restored them. So too with the final forms of the letters (the five final letters), which were HLMM, and the ‘Watchers’—the prophets—restored them. Likewise, the willow [ceremony] at the Temple was HLMM, was forgotten, and the prophets re-established it. So too the law of two kinds of barley for pe’ah—they had an HLMM about it, they forgot it, and then it was recalled. And they said three thousand laws were forgotten during the mourning for Moses, and one of them was the sin-offering whose owners died, which is an HLMM. Some wrote that these are among the three thousand forgotten laws; others wrote that when later courts restored them, they did not restore them as HLMM, and therefore a later court could revoke them.”

Indeed, in Mar’eh HaPanim to the Jerusalem Talmud, Shabbat 1:4 (s.v. “Five sin-offerings”), he writes that one should not regard this as an HLMM (implying that in his view it is not even de’oraita, which is very puzzling), for the purpose of allowing a later court to change or abolish it. This, of course, is not the common approach, and we will return to it imminently.

Ethos versus historical facts

It seems to me we have no escape from the conclusion that Maimonides’ intent is not to make a historical claim but a normative one. We are to relate to these laws as though they were given to Moses at Sinai as they stand. His intent is to instruct us to ignore the disputes, the debates, and the rulings issued there. From our standpoint these are laws given through a hollow conduit, and the product of the debates is precisely the law given to Moses at Sinai. According to my suggestion, Maimonides means: if some law is defined as HLMM, we must treat it as a law that was given to Moses at Sinai as we have it, even if factually it passed through interpretations and disputes and a decision was reached about it. This is a normative, not a factual-historical, claim. Among other things, it appears he opposes the above-noted Mar’eh HaPanim, who sees every such reconstruction as rabbinic. Once we possess the law of the sin-offering whose owners died, then for us that is the original HLMM. Again: not factually, but normatively.

So too we must understand the Talmudic statements mentioned in column 622—that all the Torah we possess was said to Moses at Sinai. For example, in the Jerusalem Talmud, Pe’ah 5 (end), we find:

“R. Yehoshua b. Levi said: ‘Concerning them and them, all of it—the words—Scripture, Mishnah, Talmud, and Aggadah—even what a diligent student is destined to teach before his master was already said to Moses at Sinai.’ What is the proof? ‘There is a thing of which one says, “See, this is new”’ (Eccles. 1:10)—his companion answers him and says, ‘It has already existed for ages.’”

Any sensible person knows this cannot be factually true. Many Torah-level laws were innovated over the generations; their source is not in a Sinai tradition. Take, for example, Shabbat 64b:

“As it was taught: ‘And she in her impurity (vehaddovah beniddatah)’—the early elders said: she shall not paint her eyes, nor rouge, nor adorn herself in colorful garments, until R. Akiva came and taught: If so, you are making her repulsive to her husband and he will end up divorcing her. Rather, what does ‘and she in her impurity’ teach? She shall remain in her state of niddah until she comes into water [i.e., immersion].”

We are dealing with a Torah-level law, for it is derived from a verse; yet R. Akiva, by reasoning, changes what had been practiced in earlier generations. It therefore seems that such Talmudic dicta are normative rather than factual: any innovation a sage derives from the Torah is, for us, to be considered as if it were given to Moses at Sinai. It is the word of God, and it binds us just like what is written in the Torah.

The derivational Middot themselves are a fine example. It is accepted among the Rishonim that the Middot for deriving halakhah are HLMM—even though the laws learned by them are, of course, created by Sages. One exception is gezerah shavah, about which it is accepted that a person may not apply it on his own (see Niddah 22b and parallels). Rashi explains that all specific gezerot shavot were given to Moses at Sinai (not only the Middah itself), and from there passed from master to disciple. Yet several Rishonim wrote that disputes did arise regarding these derivations, and clearly the rulings in question were not transmitted as-is from Sinai (see, for example, Ramban’s Hasagot to Sefer HaMitzvot, Shoresh 2, and the Encyclopedia Talmudit, entry “Gezerah Shavah”). This is explicit, for example, in Shabbat 64a: “Before there was [that] gezerah shavah,” indicating that the derivation made by gezerah shavah was innovated at some point. If this is true for gezerah shavah, then for laws not learned by gezerah shavah but by other methods—about which no one even says they were given at Sinai—how much more so that many were created by Sages throughout history.

As long as the tools used to create laws are interpretive tools or the Middot (which themselves are HLMM—even though there are disputes about them, such as between the school of R. Ishmael, who expound by “inclusion and exclusion,” and the school of R. Akiva, who expound by “general and particular”—see Shevuot 26a, the same page that contains the Rav Kahana/Rav Assi mishearing), the products are Torah-level laws.[2] The line between de’oraita and derabbanan is not whether it was given at Sinai or innovated later—since almost everything was innovated later. The difference is whether the Sages produced the law in question by tools of derivation and interpretation from verses (then it is de’oraita) or they legislated a new law by their own authority without deriving it from a verse (then it is derabbanan).

False consciousness?

We have seen that Maimonides says HLMM are undisputed; in my view this is a normative statement, not necessarily a factual one. There are two ways to understand this about Maimonides:

1. He himself presented it this way while understanding that factually this is not the case. This would be an instance of the esoteric discourse he advocates in sensitive matters (see the Introduction to Guide of the Perplexed).
2. He himself lived with the (mistaken) consciousness that these indeed are HLMM. The ethos he seeks to inculcate seemed to him truly correct, and so he wrote it. Go observe: many Torah scholars today passionately maintain that all the laws we possess were given to Moses at Sinai, though there is no doubt this is nonsense. Anyone with hands-on familiarity with the Talmud (and with logic) should know it is not true. Likely these matters are ideologically difficult for them; even though they know the situation well, “the heart does not reveal to the mouth.”

Yet since Maimonides endorses esoteric discourse and does not seem naïve, I think it is more reasonable to adopt the first reading regarding his words: he is aware of the historical facts but does not present them as they are, in order to create the desired halakhic ethos in the public.

You can see an example of this in the Talmudic discussion of “an eye for an eye.” The Talmud (Bava Kamma 83b–84a) goes on at length to demonstrate through several tannaim that the verse “an eye for an eye” is to be interpreted as monetary payment and not literally. At the end of the sugya, it brings the view of R. Eliezer, who apparently says otherwise:

“It was taught: R. Eliezer says: ‘An eye for an eye’—literally. Literally?! Does R. Eliezer not accept like all these tannaim? Rabba said: [He means] to say we do not assess him as a slave. Abaye said to him: But according to whom—like a free man? Is there valuation for a free man? Rather Rav Ashi said: [He means] to say we do not assess the payment based on the injured, but based on the injurer.”

In the baraita it appears that R. Eliezer held that the verse should be taken literally. But the Talmud refuses to accept that he argues against all the tannaim it has cited, and so the amoraim force the baraita into alternative readings. Most scholars think R. Eliezer did mean that “an eye for an eye” is literal. The Talmud’s forcing of the baraita serves to strengthen the derivation that it is monetary and to remove from people’s hearts the thought that this is not binding law because it is “only” the Sages’ interpretation. We often find statements in the Rishonim that explain Talmudic dicta this way (see, for example, here). One can, of course, be convinced that the Talmud truly thought R. Eliezer did not disagree; but it seems far more reasonable that this is a statement for the sake of reinforcement. That is why the sugya goes to such length presenting all the earlier tannaitic views—to demonstrate that it is monetary and to silence the skeptics, precisely because of the novelty here and its contradiction to the plain sense.[3]

Maimonides, Laws of Wounding and Damages 1:3–6, brings the sources for this rule and then adds that it is a tradition from Sinai that was never disputed (see, for example, the article here):

3. What is said in the Torah, ‘As he has caused a blemish in a person, so shall it be done to him,’ does not mean that we injure him as he injured his fellow; rather, he deserves to lose a limb or be injured as he did, and therefore he pays damages. And it says, ‘You shall not take ransom for the life of a murderer’ [Num. 35:31]—for a murderer alone there is no ransom, but for loss of limbs or for injuries there is ransom [i.e., monetary compensation].

4. And what is said regarding one who wounds or injures his fellow, ‘Your eye shall not pity’—that you should not pity him in the payment, lest you say, ‘This one is poor’ or ‘He injured unintentionally; I will have mercy on him.’ Therefore it says, ‘Your eye shall not pity.’

5. And how do we know that what is said regarding limbs—‘an eye for an eye,’ etc.—is monetary? For it says, ‘A bruise for a bruise’ [Ex. 21:25], and explicitly it says, ‘If a man strikes his fellow with a stone or with his fist … only he shall pay for his loss of time and he shall surely heal him’ [Ex. 21:18–19]. You thus learn that ‘for’ stated regarding a bruise is payment; and the same holds for ‘for’ stated regarding the eye and the other limbs.

6. Although these matters appear to be part of the Written Torah, they are all explained from the mouth of Moses from Sinai; they are all practical law in our hands, and thus did our ancestors see courts judge in the court of Joshua, in the court of Samuel the Ramathite, and in every court that stood from the days of Moses until now.”

We can, of course, read this simply: because it is an HLMM, it is clear that R. Eliezer did not disagree, and thus we must force his words. But in the sugya there this is not mentioned as an HLMM at all; one would think it would have stated this and thereby silenced all detractors. It therefore seems likely that the Talmud’s and Maimonides’ intent here is normative rather than factual: treat it as an HLMM even if historically it did not come from there. This is why Maimonides does not suffice with calling it HLMM but emphasizes that so the courts judged throughout the generations. He remains faithful to the Talmud’s policy of concealing the dispute here, out of concern for “the evil eye.”

This returns me to the author of that dictum, R. Eliezer. We saw in the previous column that he is the quintessential traditionalist. He clung to the traditionalist stance against all his colleagues and paid a heavy price for it. At the end of that column I brought the Ra’ayah’s words about R. Eliezer—he “did not say anything he had not heard from his master,” and yet “he innovated things that no ear had ever heard.” I suggested there that R. Eliezer may have lived with the awareness that he was merely a hollow conduit transmitting his teachers’ Torah onward, but in truth he had many innovations—all of which he heard, by his very sensitive ear, within his teachers’ Torah. If so, our sugya in Bava Kamma illustrates such an approach regarding R. Eliezer’s own words. In light of the previous column, one may hypothesize that R. Eliezer fought the innovators here too, concerning the interpretation of “an eye for an eye”: they marshaled many arguments that it is monetary (as that sugya details), but he insisted that it is literal, for that is the tradition. When he insisted on his stance against the reasoning of all his disputants, the Sages made an okimta of his words in order to eliminate his principled position that champions tradition over reasoning and debate. If so, perhaps this sugya too is part of the broader picture described in the previous column.

[Parenthetically: it is interesting that in Sanhedrin 71a, which we cited regarding the rebellious son who “never was and never will be,” there is a similar saying of R. Eliezer about the idolatrous city (ir hanidachat):

“In accordance with whom is the teaching: ‘An idolatrous city never was and never will be; why then was it written? So that you may expound it and receive reward.’ In accordance with whom? In accordance with R. Eliezer. For it was taught: R. Eliezer says: Any city that has even a single mezuzah cannot become an idolatrous city. What is the reason? The verse says: ‘And you shall gather all its spoil into the midst of its square, and you shall burn with fire’—but if there is a mezuzah, that is impossible, for it is written ‘You shall not do so to the Lord your God’ [i.e., you may not destroy sacred things]. R. Yonatan said: I saw it, and I sat upon its ruins.”

One who follows R. Eliezer’s approach is not impressed by R. Yonatan’s testimony and holds his ground that an idolatrous city “never was and never will be.” True, here he seems to rely on an argument rather than a tradition, but note that this is not R. Eliezer speaking; he provides the rationale, but it is not he who claims the city “never was nor will be.”]

Implications: commitment to halakhah and autonomy in ruling

As we have seen, factually it is clear that tradition is dynamic (a reed-style tradition). This is evident both empirically (we see that Sages innovated laws, like R. Akiva’s “vehaddovah beniddatah,” and others) and logically (the telephone-game effect). But at times Sages feared that this dynamism would provoke resistance and criticism that could lead to disparagement, loss of trust, and ultimately abandonment of commitment to it; therefore some adopted an esoteric approach—presenting tradition as if it were transmitted by a hollow conduit (a cedar-style tradition), though factually this is certainly not the case.

I suspect some of them really believed this (at least in the sense that “the heart does not reveal to the mouth”), like many of the scholars of our day—these are the naïve ones. But in others, more sober (like Maimonides), we can attribute it to an esoteric policy. They speak of a hollow-conduit tradition, but their intention is not a factual claim; it is a normative one: this is how we are to relate to tradition. Whatever a diligent student innovates receives the normative status as if given at Sinai. The reason is that he uses the Middot and the intellect granted him by his Creator; applying those tools to the biblical text—or any other text—should be viewed as revealing the content latent in it. Therefore, de facto, it was given to us at Sinai. Even if error is possible, and even if in practice that student was not correct (i.e., this was not in fact the original divine intent), if in his judgment this is the best interpretation, then for him it is what was given to Moses at Sinai.

Therefore, laws that are innovated over the generations using the various tools of derivation and interpretation receive the status of de’oraita laws. The prohibition of opening bottle caps on Shabbat never existed before—if only because such caps did not exist until our times. But the decisors who see this as an instance of makeh be-patish (final hammer-blow), of building, or of demolishing—for them, this is what was given to Moses at Sinai within the framework of the Sabbath labors. There is no need to suppose that God literally showed Moses at Sinai the shape of metal or plastic bottle caps of all generations. This is, of course, a simple example of a new application of an old law; but note that even here there are disputes among contemporary decisors—i.e., the application is not simple or agreed upon. Beyond that, even disputes about the law itself (not only applications) can receive exactly the same treatment: if in my judgment my interpretation is the correct interpretation of the law we received by tradition, then for me this is what God showed Moses at Sinai—not factually, but normatively.

I have been asked many times: how can one be committed to a tradition that was, for the most part, created by human beings? Are we worshiping R. Akiva? Our commitment is to God, and to Him alone. The apologetic tendency is to reply that the entire tradition was given at Sinai—preferably with hyperbole about the greatness of the transmitters of tradition, who neither erred nor can err. In my replies I explained that none of this is necessary. The transmitters of tradition were people like you and me, and they likely erred quite a bit—like you and me. But my commitment to halakhah is not a function of its authenticity, i.e., its hitting the original will of God. I am obligated to keep the halakhah not because I am convinced that this is what was said to Moses at Sinai, and this is true even when it is not a matter of new contemporary circumstances. Like any person and like the great decisors, the Sages in their times could err—and probably did. But this should not harm our commitment to halakhah. I am committed because, normatively, this is what was given to Moses at Sinai—even if not factually.

Do not infer from this that I advocate clinging to precedents of the great decisors. I do not. On the contrary: precisely because, in my view, tradition is dynamic, what I conclude from analyzing a sugya is what binds me—and for me, that is what was said to Moses at Sinai. Just as earlier Sages processed and interpreted the tradition, so do I. The tradition has always been dynamic and must continue to be dynamic. It must continue to be fruitful and multiply, just as in the days of R. Akiva, R. Yehoshua b. Ḥananiah, and Rabban Elazar ben Azariah. This is also why I am untroubled by errors that occurred in the tradition over the generations. The telephone-game effect is part of life’s facts, and I am certain God knows this as well. He expects us to do our best according to our understanding, for the Torah was not given to ministering angels. If we have done so—we have done His will, even if factually this is not what He intended.

I think this is the gist of the message in the story of the oven of Akhnai: R. Eliezer brandishes authenticity (all the information from Sinai is with him), and the walls of the study hall testify to his correctness and righteousness (that he hits the will of God—even God Himself agrees with him):

“R. Yehoshua stood on his feet and said: ‘It is not in heaven.’ What is ‘It is not in heaven’? R. Yirmiyah said: since the Torah has already been given at Mount Sinai, we pay no heed to a Heavenly Voice, for You have already written in the Torah at Sinai, ‘After the majority you shall incline.’”

The Sages answer R. Eliezer: “It is not in heaven.” Halakhah is decided by what appears correct to the Sages—not only by traditions. As we saw, at times their reasoning outweighs trust in tradition.

Recall that in the previous column we saw that even his brother-in-law, Rabban Gamliel, would examine those entering the study hall by their qualities and reliability as transmitters (a hollow conduit). But after the “revolution,” Rabban Elazar ben Azariah opens the gates and adds benches in Yavneh. I explained that this is because, under his leadership, halakhah is set through dialectic based on arguments, and not on the strength of traditions alone.

And the Talmud continues there:

“R. Natan met Elijah and asked him: ‘What did the Holy One, blessed be He, do at that moment?’ He said to him: ‘He smiled and said: My children have triumphed over Me; My children have triumphed over Me.’”

God Himself smiles and says: “My children have triumphed over Me; My children have triumphed over Me.” The halakhah was accepted not because this is the authentic will of God. On the contrary—it was accepted even though it is clear this is not what He intended. But His will is certainly that we decide halakhah in this manner. God Himself wants a dynamic, not a frozen, tradition.

[1] In the Encyclopedia Talmudit, entry “Halakha le-Moshe mi-Sinai,” note 89, it cites those who questioned the Chavot Yair and other later authorities who understood Maimonides to hold that no dispute can arise regarding HLMM, arguing that Maimonides never wrote such a thing. See, for example, Maharatz Ḥayyot, Torat HaNevi’im, essay “The Oral Torah,” p. 18.

[2] Specifically regarding the Middot of derivation, Maimonides’ view in the Second Principle (Shoresh Sheni) is that these are not truly de’oraita laws. I expanded on this in my article on the Second Principle in the book Yishlaḥ Shoreshav, and in my book Ru’aḥ HaMishpat, Gate Two.

[3] Contrary to the common image, there are few derivations that uproot and contradict the plain sense. Usually, derash adds another interpretation to the peshat. “An eye for an eye” is a blatant and very unusual example.