Questions about the laws in Deuteronomy in comparison with those in earlier biblical books assume a process of prophetic transmission at Mt. Sinai and in the Sinai Desert. However, without even minimally exploring that transmission, we can never even begin to answer those questions. Jewish tradition teaches a dual transmission–the Written and the Oral Torahs. Distinguishing between these two traditions helps us understand the law and resolve texts that otherwise appear contradictory. What follows is a section of R. Yehuda Copperman’s Peninei Meshech Chochmah. R. Moshe Schapiro translated the text, which was not reviewed by R. Copperman and contains additional paragraph breaks and section headers.
The point of departure for the study of Torah is the belief in the transmission of the Torah by the Holy One, blessed be He (HKBH) to Moshe and the nation of Israel, at the occasion which is called Ma’amad Har Sinai. The point of departure, however, is not the biblical text, as is usually the case with literary study, but the will of the Giver of the Torah, HKBH. While an examination of a text composed by human beings can suggest any interpretation that is loyal to the principles of grammar and syntax, style etc. and any such interpretation is perforce legitimate – even though it may generate new meanings that the author had not even considered!- but such is not the case with the words of Torah. Here the Giver of the Torah, HKBH, is central and one must study the text that He gave us “from HKBH’s mouth to the ear of Moshe” (introduction of Ramban to Torah), as an expression of the general will to teach Torah to the Children of Israel- that “Torah” which was transmitted partly in writing and partly orally.
Transmission of the Oral Torah
As is well known, the Oral Torah preceded, from a historical perspective, the Written Torah. This is not only expressed through the commandments that were given orally to the forefathers of the nation, but also through the simple fact that when Moshe Rabbenu ascended Mt. Sinai (if we exclude from our discussion the Ten Commandments which have a different status) he received the Oral Torah before the work on the Written Torah had begun. We can understand this if we distinguish between the terms “Torah from Sinai” and “Torah from Heaven”. It is clear that we do not intend to obligate the great ones of the generations (medieval and modern) to use this terminology (for example, Rambam in Hilkhot Teshuvah 3:8 writes about “Torah from Heaven” when he means “Oral Torah”). We are using this distinction here between these two terms in order to emphasize that the receiving of the Written Torah and the receiving of the Oral Torah are two distinct categories, related to different disputes in Chazal and the medieval commentators, as will be explained further on. For the sake of simplicity alone we will use the term “Torah from Heaven” to mean the Written Torah and the term “Torah from Sinai” to mean the Oral Torah.
It makes sense to relate the term “Torah from Sinai” to the Oral Torah, for this is the language of Chazal: “Moshe received the Torah from Sinai and transmitted it to Yehoshua etc.”1 On this matter there is a difference of opinion between two schools of thought, R. Akiva and R. Yishmael.2 R. Akiva maintained that the Torah was given in its entirety – its general principles, derivatives and details – from Sinai, while R. Yishmael maintained that the general principles were given at Sinai, but the details were given [later] in the Tent of Meeting and on the Plains of Moav. This dispute between R. Akiva and R. Yishmael applies, as stated, only to the receiving of the commandments orally by Moshe Rabbenu, but is not relevant to his writing down of the Torah.3
It would seem that the dispute between these two schools of thought of the Tannaim is echoed much later in history, in the dispute of Ramban and Arbarbanel with Radvaz regarding the question of Deuteronomy. Ramban’s opinion4 is that Moshe Rabbenu received all the commandments orally at Sinai, but only taught the commandments that appear in Deuteronomy to the Children of Israel shortly before they entered the Land of Israel. He is therefore troubled to explain why HKBH held back Moshe’s prophecy for all those thirty-nine years. In a slightly different vein, Abarbanel5 argues that Moshe Rabbenu received and taught to the children of Israel all the commandments that he received while they were still at Sinai (and this is the point of contention between him and Ramban).6 In opposition to Ramban and Abarbanel, Radvaz7 argues that the Deuteronomic commandments were not only introduced for the first time to the Children of Israel shortly before they entered the land of Israel, but also to Moshe Rabbenu.
Radvaz stretches the line of the “Torah from Sinai” to the maximum, in that Moshe Rabbenu was in the process of receiving the Oral Torah from the mouth of HKBH, starting from the giving of the Torah at Sinai and ending at the end of his life on the plains of Moav.8 It appears that Abarbanel explains the concept “Torah from Sinai” according to R. Akiva’s approach, whereas Radvaz explains it according to R. Yishmael. It is hard to know, according to Ramban, who distinguishes between the receiving of commandments by Moshe and their transmission to the Children of Israel. All this, as stated, relates to the question of “Torah from Sinai”, in other words the question of the transmission of the Oral Torah from HKBH to Moshe.
Writing the Torah
In comparing “Torah from Sinai” to the concept of “Torah from Heaven” we should note the process by which HKBH dictated the Written Torah to Moshe Rabbenu. The process is defined by Ramban in this way:9 “But it is true and clear that the entire Torah from the beginning of the book of Genesis until the last words “Before the eyes of all Israel” came from the mouth of HKBH to the ear of Moshe.”
Parallel to the dispute in Chazal about “Torah from Sinai” (the Oral Torah), we find in Chazal another dispute about “Torah from Heaven” (the Written Torah), namely the question if the Torah was “given scroll by scroll” or “given complete.”10 Explaining the concept “scroll by scroll,” Rashi11 writes: “When a portion was spoken to Moshe he would write it down, and at the end of forty years, when all the portions were finished he connected them with sinews and sewed them together.” Explaining the concept “given complete,” Rashi12 writes: “It was not written until the end of forty years, after all the portions were spoken. And those that were said to him in the first and second years where arranged by him orally until they could be written down.” Rashi explicitly says that one should not think that the entire Torah was written at Sinai in a form that it is written today, in contrast with R. Akiva’s opinion that the entire Oral Torah was given at Sinai –“its general principles, derivatives and details.”13
What emerges is that “Torah from Sinai” preceded, from a historical perspective, “Torah from Heaven”; in other words, the Oral Torah preceded the Written Torah.14 This is the basis upon which we contended that the point of departure for the study of Torah is not the Torah text, rather the act of the transmission of the Torah by HKBH to Israel. Indeed, it’s important to know that there was a possibility that the Torah would not only have been given orally to Moshe Rabbenu at Sinai like the opinion of R. Akiva, but also that it would remainoral in its entirety. It was HKBH, Who first gave it orally, Who decided to organize it in the form that we have today, namely, the lesser part in written form, but the greater part in oral form. Any deep study of God’s Torah must perforce bring the student to a fundamental question – what is the foundation for this division between the Torah which is written and that part which remains oral? This question is discussed by the great commentators, but this is not the place for a lengthy discussion of that issue.15
From Oral to Written
Part of the Oral Torah remains oral, while a certain part of the God’s Torah was transferred now to the status of the Written Torah. We find this process of “transference” of Oral Torah to Written Torah in all the “newest” commandments in the Deuteronomy, and in the “explicated” commandments therein, as (according to Ramban and Abarbanel) they were written now but were already known to Moshe (and maybe even to the Children of Israel) these forty years. And thus indeed wrote Rashi (Gittin 60a) that “those that were said to him in the first and second years were arranged by him orally until they could be written down.” For example, even according to the opinion that the Torah was given “scroll by scroll” – and already at Mt. Sinai the portion of Mishpatim was given in written form, and there it was written “and in the seventh year he shall go free for no charge” – they knew and learned the content of the commandment “Adorn him generously from your flocks, from your threshing floor and from your wine cellar” which appears in Deuteronomy. It’s possible that they also knew how to derive this law from the Written Torah (without Deuteronomy), through the particular hermeneutical principles through which the Torah is interpreted.
At a later time in history we find a similar process (but not identical) when words of prophecy were spoken orally at a particular time in the life of a prophet (“the fruit of the lips”), part of them were copied down to be written (in general close to the end of the life of the prophet) based on the criterion of “that which is necessary for the generations” (Megillah 12a).
According to this understanding that the Oral Torah preceded the Written Torah, we can perhaps suggest didactically that instead of posing the question: “how did Chazal derive this or that law from the verse,” we should reformulate the question and say “how is the oral component of this commandment connected with the written part of this commandment?” This novel formulation would have spared us many of the problems that accompanied the pure, holy study of Torah and its commentaries in the last few centuries.
Avot 1:1 ↩
Zevachim 115b ↩
See Maharal, Gur Aryeh, Mishpatim (21:1) why, according to R. Akiva, it was necessary to repeat the entire Torah to Moshe Rabbenu at Sinai, the Tent of Meeting and the plains of Moav, and one time was not sufficient. ↩
Introduction to Deuteronomy ↩
Introduction to Deuteronomy ↩
It is upon Abarbanel to explain how Deuteronomy is essentially different from the other chumashim, since the commandments contained in it are apparently equal to the other commandments both in terms of when they were received by Moshe Rabbenu and when they were transmitted to the Children of Israel. See there, at length, in his introduction. ↩
Responsa, 2143 ↩
According to the approach of Radvaz it is better understood why the Torah emphasizes, when speaking of Moshe Rabbenu at the end of his life, that “his eye was not dimmed, nor his natural force abated,” in other words that also at the end of his life, his ability to absorb the commandments of the Torah were not one bit less than his ability to absorb them at the beginning of his career at the giving of the Torah at Sinai ↩
His introduction to Genesis, there. ↩
Gittin 60a ↩
Ad loc ↩
We have emphasized the Written Torah as it is found in our hands today, to the exclusion of the Written Torah in the sense of “the names of HKBH” (according to the language of Ramban in his introduction to Torah), and this is according to the opinion of those commentators who see the Written Torah as being given in its entirety to Moshe Rabbenu in a “closed” form. In other words, with the letters mixed up, not like the peshat or midrash today. See about this in the commentary of R. Ovadyah Seforno to Exodus, Mishpatim 24:14, s.v. “Asher katavti” , and see also in the words of the Netziv of Volozhin there, s.v. “veha-Torah” and see also in the words of the Maharitz Chajes, Yoma 75a. ↩
And there is no contradiction to our words from the words of Maharal to Exodus, Beshalach 15:25 regarding the commandments at Marah which preceded the giving of the Torah at Sinai about which the Maharalwrites: “For behold the Oral Torah did not precede the Written Torah”- look there very carefully! And see about this in the article by R. Mordechai Gifter “The Writing of Torah, Nevi’im and Ketuvim” in the memorial book for ha-Gaon R. Y. Weinberg. ↩
See R. Eliyahu Mizrachi to Numbers, BeHa’alotecha 10:11 s.v. “le-Mishpechotav”. And see our master the Chazon Ish, 125 to Moed, the essay: Siddur Ketivat Parshiyot HaTorah , and also in our article Signon HaKatuv part 3, at length. ↩