[Cross-Posted from Galus Australis]
It is no secret that the weight of our traditions, and the vast bulk of our legislation, derives not from an explicit reading of the Torah, but instead from the long and methodical distillation of rabbinic halakha. This halakha, while it is earlier given expression in various legalistic midrashim (the Midrash Halakha), is best exemplified in the 3rd century redaction of the Mishna. It is a most curious feature of this text that, unlike all other examples of Jewish literature before and since (with the exception only of the stylistically correlative Tosefta), the Mishna provides no reasons for its laws, all of which are predicated upon statements found within the Torah, but none of which are actually from the Torah itself.
It would be a mistake to assume that the earliest generations of rabbis were unaware of this problem. While many today are content with the traditional schema, which posits the origin of rabbinic legal methodologies, and even the origin of rabbinic halakhot themselves, at Sinai, the Mishna itself evinces a certain discomfort with the provenance of its own dicta. Consider the following pronouncement (Hagigah 1:8):
התר נדרים פורחין באויר ואין להם על מה שיסמכו הלכות שבת חגיגות והמעילות הרי הם כהררים התלוין בשערה שהן מקרא מעט והלכות מרבות הדינין והעבודות הטהרות והטמאות ועריות יש להן על מה שיסמכו הן הן גופי תורה
[The laws concerning] the annulment of vows are floating in the air, and have nought on which they can be based. The laws of Shabbat, festival offerings and transgressions [incurred through the misuse of consecrated goods]: these are like mountains suspended on a hair, for there is little scripture and a great many halakhot. Financial laws, sacrifical procedures, purities and impurities, and sexual transgressions have that on which they can be based. These ones are the essence of Torah.
The translation above, which is slightly idiomatic, is my own. Where the Hebrew notes that הן הן גופי תורה, I have understood the repetition of the demonstrative pronoun as noting that “these ones” – the latter category – are the essence of Torah, to the exclusion of those that came before. Support for this can be found within the Tosefta (Hagigah 1:11; also Eruvin 8:17), which in this instance is clearly a commentary upon the mishna in question. Consider its conclusion:
הדינין העבודות הטהרות והטמאות והעריות מוסף עליהן הערכין וחרמים וההקדשות מקרא מרבה מדרש והלכות מרבות יש להן על מה שיסמכו אבא יוסי בן חנן אומר אלו שמונה מקצעי תורה גופי הלכות
Financial laws, sacrificial procedures, purities and impurities, and sexual transgressions, to which can be added valuations [of people and property], that which is banned, and that which is consecrated – a great deal of scripture, a great deal of midrash and a great many halakhot – have that on which they can be based. Abba Yose ben Hanan says, “These are the eight corners of Torah, the essence of halakhot.”
It is evident in the Tosefta’s reformulation that these eight things mentioned last (which number only four or five in the Mishna’s formulation) constitute the essence of Torah, while that which came before, although important and constituting the bulk of rabbinic legislation, is not of the essence. Those are the areas of the halakha, concerning which the rabbis could find no justificatory basis within the explicit wording of the Torah itself, and concerning which they were aware of their inability to do so.
It goes without saying that while so radical an idea might have found expression within certain examples of early rabbinic literature, later examples of the same disavowed it. Consider the terse response of the gemara to this problem (Hagigah 11b):
הן הן גופי תורה הני אין הנך לא אלא אימא הן והן גופי תורה
“These ones are the essence of Torah”? [Meaning] these ones are and these ones aren’t? Rather, say that “these and these are the essence of Torah”.
In other words, rather than suggesting that only these latter examples (הן הן) are the essence of Torah, which is what the Mishna does suggest, declare instead that all of these examples (הן והן) are the essence of Torah, whether or not they have anything on which they can be based, or whether they have only very little on which they can be based, within the explicit phraseology of the Torah itself.
That the gemara finds the Mishna’s assertion so problematic only serves to underscore the philosophical rift that divides the two. Prof. Menahem Kahana of Hebrew University refers to the statement in the mishna as being one that “frankly reveals the problematic nature of finding biblical support for numerous halakhot in several realms of Jewish law”¹.
Nonetheless, the recognition of this problem is one that comes fraught with all manner of ideological baggage. Were one to suggest that certain realms of halakha indeed lack textual basis, might not the individual halakhot that they comprise be called into question?
Consider a recent guest post at Hirhurim. Rabbi Yonatan Kaganoff proposes a model for comprehending Orthodox Judaism (although the model applies beyond Orthodoxy as well), in which he divides it into two different philosophical approaches.
One of Rabbi Kaganoff’s approaches is the one that sees of Judaism a masorah, or tradition. By believing his practises (however erroneously) to be constitutive of historical practises, and by perceiving a clear line of development from the earliest texts to the most recent, the adherent of such a philosophy must surely feel uncomfortable with any indication that there might be discontinuation between one stage in the process and the next. That the earliest generations of rabbis may have been originating ideas, the better to derive practical halakha from the little that the Torah gives them, is anathema to such a perspective. As a result, the mishna’s assertion that the “real Torah” lies with those things that possess a scriptural basis is in need of the sort of emendation that the gemara provides.
The first of his approaches, however, and the one to which I assent, is the approach that sees of Judaism a system of legal exegesis. While we might remark upon the ways in which it operates, we seek to appraise it rather than to lend it justification. Or as I have heard Rabbi Raymond Apple note on a number of occasions, our objective is to understand the literature and not to judge it. Were the rabbis ever responsible for innovating halakhot? Both then and now, and throughout all of Jewish history, this has been the modus operandi. While innovation was and is conducted in line with both the content and the principles of the rabbinic literature, it stands to reason that the earliest examples of this literature testify to innovation made on a more subjective basis.
Indeed, the introduction to the tosefta that I quoted (Hagigah 1:11) makes this abundantly clear for itself:
היתר נדרים פורחין באויר ואין להם על מה שיסמכו אבל חכם מתיר לפי חכמתו
[The laws concerning] the annulment of vows are floating in the air, and have nought on which they can be based, but the wise one will permit things in accordance with his wisdom.
While later generations came to understand the Mishna as being the faithful representation of a memorised body of law, rather than the results of a dynamic process of creative legislation, so much of the information that we have at our disposal belies this assertion. The abundance of disagreements within the early rabbinic literature, the honest appraisal of this particular passage in the Mishna, and the assertion made by the corresponding tosefta that “the wise one will permit things in accordance with his wisdom” all testify to a certain state of elasticity in the earliest days of the halakha.
Jewish law may have become inflexible in many respects, permitting change and development when in line with a particular methodology only, but this has not always been the case. Recreating the rabbis of the past in our own image does nobody any favours: neither those earliest generations, so anachronistically represented, nor ourselves, divested of an appreciation as to our ideological roots.
¹ Menahem Kahana, “The Halakhic Midrashim”. Pages 3-105 of The Literature of the Sages (vol. II; ed. S. Safrai, Z. Safrai, J. Schwartz and P. Tomson; Compendia Rerum Iudaicarum ad Novum Testamentum; Minneapolis: Fortress Press), 11 n36.