[Avodah] nature of torah sheb'al peh

[Akiva Miller via Avodah]

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R' Zev Sero wrote:

> I just came across someone who has somehow gained the impression
> that mishnah is torah sheb`al peh, but gemara is not, and we may
> disagree with it. "Mishnah is of course Torah sh'b'al peh; no
> one argues otherwise.  But while Gemara is encompassed within
> the rubric of the oral law, it is fundamentally different from
> Mishnah. It is comprised of debate and dispute and assertions
> made without backup and incorrect statements and statements that
> seem problematic to our minds."
>
> Any suggestions for how to counter this view most effectively,
> assuming he doesn't accept my mere assertion that this is not
> so? Recommended reading? I gather this person, who identifies
> as Orthodox, studies daf yomi in English but isn't very fluent
> in Hebrew.

I could respond in any of several ways.

Are you so sure that this person really is wrong? How do you define
the term "Torah Sheb'al Peh", and how does he define it? It might
simply be that you are talking past each other. (This is not trivial.
I had always thought that Torah Shebiksav is limited to the Chumash,
until a few years ago, when I was told by the listmembers here that
Nach is also included.)

Is there really that much difference between Mishna and Gemara as this
person thinks? Gemara does go into greater detail, but Mishna DOES
contain "debate and dispute and assertions made without backup". From
a quick look in my siddur at Bameh Madlikin, I see that ALL of the
first five mishnayos give opposing views without any scriptural
sources, and with hardly any logical arguments.

Does this person really think that the Mishna is free of "statements
that seem problematic to our minds"? Again I will cite Bameh Madlikin:
What about women who die in childbirth because they weren't careful
about those three mitzvos? (This is not to suggest that I disagree
with the Mishna myself, only to prod that person into examining his
stereotypes about mishnayos.)

This person feels that we may disagree with gemara but not with
mishna? I might be mistaken on this point, but I think one can find
examples of a "stam mishna" (a mishna that contains only one opinion,
and that opinion is not attributed to any specific person) where the
actual halacha is different. I'd think that if someone felt we're not
allowed to disagree with a mishna, then that person would be surprised
to find that the mishna declares the halacha to be ABC, yet our
practice is XYZ.

Akiva Miller