Halacha, A User’s Guide I: Oral Torah

Halacha. It’s often translated as Jewish or ritual law. Orthodox Jews tend to spend time learning, discussing, and wrestling with what Halacha asks of us, but often devote less time to exploring what Halacha is .

What are the guiding principles behind this diverse, detail-oriented body of law? What is the glue that binds together the rules of how we tie our shoes in the morning to whether we tear toilet paper on Shabbat? What is the process behind the bottom-line ruling of being stringent or lenient, of an act being prohibited or permitted, of allowing something le-chatchila (from the outset) or only be-di’avad (after the fact)?

The topic of halachic methodology is as vast and detailed as Halacha itself; this series makes no claim to cover it exhaustively. We’ll just explore some of the ingredients—like the Biblical text, oral tradition, and rabbinic innovation—that go into transmitting, teaching, forming, and deciding Halacha. It is our hope and intention that this will serve as a foundation and source of inspiration for future learning.

Halacha is learned from a composite of two key elements: “Torah She-bichtav”—“Written Torah,” and “Torah She-be’al Peh”—“Oral Torah”.

Of the two terms, Torah She-bichtav is far easier to define; it refers to the text of the Chamisha Chumshei Torah, the Five Books of Moses.

Torah She-be’al Peh is much more complicated. It loosely refers to the vast body of rabbinic interpretation, commentary, and application of Torah She-bichtav. Though it was once, as its name suggests, entirely oral, much of Torah She-be’al Peh has been written down in works like the Mishna, Midrash, Gemara, and Shulchan Aruch.

In the following sections, we will explore:

• Why do we need Torah She-be’al Peh in the first place? Is Torah She-bichtav not enough?
• What is the significance and purpose of having an oral tradition alongside a written one?
• How was Torah She-be’al Peh transmitted and eventually transcribed?

Any written text assumes some level of background information. A high school textbook requires prior knowledge from elementary and middle school, and children’s chapter books assume a certain level of literacy. The reader is expected to acquire this type of information from other sources, either oral explanations or other written works.

Without a basic trust in and reliance on outside guidance, any text is rendered incomprehensible. The following story about Hillel illustrates a similar principle regarding the written text of the Torah:

Hillel establishes that even something as rudimentary as the names of the letters has been passed down by an oral tradition, and any progress in learning depends on following such traditions.

The problem of transmission is compounded in the Hebrew language, which is often transcribed without vowels. One written word leaves multiple readings open. Often, contextual clues indicate which pronunciation and meaning are most likely. Sometimes, though, context still does not suffice to help us choose between multiple plausible readings of a given text.

For example, the Hebrew word “chet-lamed-bet” can be read in two different ways: as cheilev, meaning “animal fat” or as chalav, meaning “milk” (or even a third way, as chaleiv, meaning “milk of”).

According to our tradition, the word in bold in this verse is vocalized “cheilev” which refers to animal fat.¹ But in a different verse, the bolded word is vocalized as “ba-chaleiv”, and refers to milk :

Without an oral tradition as a guide, we could have arrived at two vastly different readings of the same written text. A prohibition against any animal milk, or against cooking meat in its mother’s fat, would seem as plausible as the prohibitions of cheilev fat or meat and milk.

In addition to the actual words, many commands in the Torah are written in cryptic or ambiguous fashion, without specifying key details. For example:

The plain text here suggests that any beautiful fruit would suffice for use on Sukkot. The meaning of the word “beautiful” is somewhat ambiguous, though. Should one simply choose the largest fruit available? The most valuable? The most fragrant? Does the verse mean “a beautiful fruit from a tree” or “the fruit of a beautiful tree”?

Jews universally, however, observe this mitzva in a particular way: taking an etrog (citron) to shake on Sukkot. This practice, followed for millennia by Jewish communities around the world, is rooted in an independent oral tradition.

Here is another example, one in which the text more explicitly points to an outside source of information:

This verse mandates eating only animals that have undergone slaughter as God has commanded us. Yet none of the hundreds of commands given to Moshe throughout the Torah detail how animals should be slaughtered. Rashi notes that this verse alludes to a pre-existing, unwritten tradition detailing how shechita (Jewish ritual slaughter) is performed:

These are just a few examples where the biblical text cannot be understood correctly without the aid of an oral tradition. Some aspects of Oral Torah date back to before the whole Torah was written down. In the wilderness, the daughters of Tzelofchad approach Moshe to ask what will become of their father’s inheritance—in a sense, seeking Oral Torah from him beyond what had been clearly taught.

In this case, Moshe has an easy way to clarify the Torah’s intent—by communicating with God directly.

To this day, when Oral Torah helps us to understand the biblical text, it functions as another, enduring form of communication with God. Rav Yosef Albo compares the workings of Oral Torah in these cases to a specialized language between God and the Jewish people.

Torah She-be’al Peh is an essential component of God’s covenant with the Jewish people, since the Divine law cannot be understood properly without it.

Ran points out another advantage of orality when matters are unclear: it forces students to learn from a human teacher, rather than read the text on their own. Face-to-face instruction, where the teacher can provide context and tailored explanation, ensures the text is understood as intended:

So far, we’ve discussed the need for and value of an oral tradition. Next, we’ll discuss where and when this tradition was taught, and how it was transmitted.

The Talmud teaches that the oral tradition originated at the giving of the Torah, when oral explanation was provided along with the written text. This idea is rooted in the following verse:

The setting of this verse is just after matan Torah, when God summons Moshe to come up to the summit of Mount Sinai. One possible, straightforward reading is that God is inviting Moshe to receive the luchot, tablets, a written form of the Ten Commandments that the Jewish people just heard at the foot of the mountain.

But the Sages are not satisfied with this reading. Why does the verse use so many different descriptors for that object? If that’s all the verse meant, wouldn’t less description suffice? Rabbi Shimon ben Lakish thus explains that each word in the verse refers to a distinct aspect of Law:

At Mount Sinai, God invited Moshe to accept not just the written commandments, but also a broader corpus of Torah that included applications and explanations.² The Talmud describes how exactly this body of Oral Torah was taught:

The Oral Torah was not reserved exclusively for the elite. Rather, the Jewish people as a whole were taught the Oral Torah and entrusted with learning and transmitting it. Parent to child, teacher to student, it has been passed through the generations. (We discuss women’s roles in transmitting this tradition here.)

The spiritual leaders of the Jewish people bore special responsibility for preserving and promulgating these traditions. The first mishna of tractate Avot describes the main generations of spiritual leadership:

Each generation of spiritual leadership also had a primary authority on the Oral Torah. Rambam, in his introduction to the Mishneh Torah, records the chain of transmission of these prime authorities from Moshe to Rav Ashi, a member of the final generation of the Talmudic sages.³

The Oral Torah continued to expand after Moshe’s death, as the Sages needed to use specific interpretive techniques to apply the laws taught by Moshe to new situations, and sometimes disagreed about them:

The Oral Torah is at once grounded and dynamic. It is adaptable to new situations, but rooted in transmitted principles, open to diversity of opinion and debate, but ultimately shaped by accepted ground rules.

Indeed, this elasticity might be a reason why part of Torah law was kept oral in the first place. Having only part of the Torah cemented in the text, with rules of interpretation being placed in the hands of the sages, provides the flexibility needed to apply the laws of the Torah to ever-changing times and places. As Rav Yosef Albo puts it:

Maintaining Torah She-be’al Peh in its oral form was not just recommended; it was mandated. The Talmud records a full-fledged prohibition against writing down Torah She-be’al Peh.

As we discussed above, there are many virtues to orality: the Divine connection it creates, the flexibility it provides, and the teacher-student relationship it fosters. In addition to these benefits, Rav Yehoshua Falk points out there is inherent value in the very act of oral transmission:

The rigor and review necessary to keep an oral tradition alive are themselves rewarding. As the age of the internet search engine and the Torah database has taught us, easy access to knowledge alone does not create a scholar. It is the act of toiling in study that produces mastery and breeds insight.

With this prohibition in place, what led the Mishna, the Talmud, and the plethora of codes and commentators that followed, to be consolidated, and ultimately written down?

A Talmudic passage makes cryptic reference to a turning point that took place in the era following Hillel and Shammai:

This account highlights a lack of “shimush” – apprenticeship, the intense daily contact at the heart of the teacher-student relationship. Why were students’ relationships with their teachers disrupted so suddenly and severely, with such drastic consequences for the transmission of Torah She-be’al Peh? Rashi fills in the gaps, and paints a picture of intense persecution at the hands of the Romans that threatened to obliterate the carefully preserved oral tradition:

Rashi is likely, at least in part, referring to the persecution under the emperor Hadrian (117-138 CE). Hadrian’s decrees echoed those of the Seleucid Greeks several centuries before him, including the outlawing of Jewish rituals like circumcision. He even planned on erecting an idolatrous shrine to Jupiter on the Temple mount, a move to which some scholars point as the catalyst for the Bar Kochva revolt. After putting down the revolt, the Romans intensified the decrees against Jewish ritual with a view to undercutting nationalist impulses.

These decrees threatened the preservation of the Oral Torah. With such dire stakes, Rabbi Yehuda Ha-nassi found it necessary to make an official compilation of the Oral Torah, known as the Mishna.

How could any of the Oral Torah ever be written down? License for this type of action is alluded to in the following verse and its Talmudic explanation:

According to Rava’s second reading, the conclusion of the verse, “they have violated your Torah,” states a religious imperative rather than lamenting a transgression. At unusual times of crisis, a leader might be enjoined to suspend one Torah law in order to preserve the whole.

Rashi, in his commentary on that passage, gives an example of one of the other rare times when this concept was applied:

The same Talmudic passage that records the prohibition of transcribing the Oral Torah quotes this verse as well:

Rabbi Yochanan and Reish Lakish chose to transgress the ban on reading written texts of the Oral tradition, for the greater purpose of ensuring the Torah’s preservation.

This principle is generally referred to as “Et La’asot La-Shem,” “a time to act for God.” It is not invoked lightly; rather it is applied carefully, reluctantly, sparingly. Rambam uses striking imagery to convey both the gravity and necessity of this rabbinic override power:

Committing the Oral Torah to writing was a sort of spiritual amputation in order that the entirety of the Torah might live, one which apparently began in more unofficial and limited manner, but ultimately expanded as part of an ongoing process of consolidating and preserving the Oral tradition.

The Mishna and Other Works

As Rambam describes, Rabbi Yehuda Ha-nassi gathered sages together to compare the teachings they had inherited, finding contradictions, analyzing the rationale behind differing views, and deciding which should be authoritative, and thus compiled the most authoritative collection of Torah She-be’al Peh to that point in history, the Mishna.

The Mishna is organized topically and is written in very concise language. This concision preserves some of the virtues of orality—the need to learn with a teacher, and the need for rigor and review—even in text. At the same time, it reflects the need for the Mishna to be as easy as possible to transmit, due to the fear of impending dispersal and exile that led to its creation in the first place.

Various students of Rabbi Yehuda Ha-nassi compiled other collections to supplement and complement the material in the Mishna. Rambam describes them:

The Mechiltas, Sifra, and Sifri are known as midrash halacha. They cover many of the same halachot that are in the Mishna, often attributing them to the same sages, but they are organized by verse in the Torah, rather than by topic. This is what the Rambam means by “explaining and clarifying the source of the Mishna.” Connecting the Halacha to a biblical verse links the Oral Torah to its written source. Some of the teachings in these collections are more homiletic, preserving the traditional stories, values, and ethical lessons linked to the biblical text.

Other collections, such the Tosefta, were organized more topically, like the Mishna. As hinted by their names—Tosefta means “addition.” The term baraita includes the Aramaic “bar” for “outside.” A baraita is a selection of material from Tannaitic sages that didn’t make it into the Mishna.

Study of these materials, considered less authoritative than the Mishna, often adds detail and explanation to the Mishna’s presentation of Torah She-be’al Peh.

The Jewish library is constantly expanding, as more and more books are added with each generation since the era of Rabbi Yehuda Ha-nassi. There are several reasons for this, many of them parallel to the reasons Torah She-bichtav didn’t suffice to begin with.

First, a written work, particularly one as concise as the Mishna, has ambiguities that necessitate explanation and commentary—a bit like the cryptic nature of the biblical text. Second, our world is ever-changing, prompting rabbinic authorities to discuss how to apply Halacha to new technologies or social norms.

New laws and customs are also introduced over time. Each generation and each community has unique needs, necessitating novel rabbinic rulings in response. Additions also come from the bottom up–many customs, stringencies, and leniencies have been adopted by Jewish laypeople themselves. We’ll learn more about them in the next sections of this series.

Dr. Merav Tubul-Kahana describes Torah She-be’al Peh as an ongoing reciprocal process that continues to this day and beyond:⁴

New halachic works are written every year. Some might be collections of responsa to contemporary halachic issues, others might be practical guides to a particular area of law, still others might be higher order analysis of a halachic concept. All of these are varied and unique, but also cut from the same cloth, branches of the same tree, water from the same source.

To use the imagery of the prophet Yirmiyahu:

The Midrash expounds:

Like a single rock splintering into many, like a raging bonfire lighting many torches aflame; like a ray of light refracted to produce a rainbow of color; our single Torah is the source of an ever-expanding canon.

Further Reading

• Rav Baruch Gigi. “The Written Law and the Oral Law.” VBM Shiur. Available here.
• Rav Michael Wygoda. “The Writing of the Oral Torah.” Da’at (Hebrew). Available here.