[Avodah] The Relationaship between the Written and Oral Law

Professor L. Levine llevine at stevens.edu
Sun Feb 11 02:35:33 PST 2018

The following is from RSRH's commentary on Shemos 21

2 If you purchase a Hebrew servant, he shall serve for six years; but in the seventh he shall go out free, without paying.

בכִּ֤י תִקְנֶה֙ עֶ֣בֶד עִבְרִ֔י שֵׁ֥שׁ שָׁנִ֖ים יַֽעֲבֹ֑ד וּבַ֨שְּׁבִעִ֔ת יֵצֵ֥א לַֽחָפְשִׁ֖י חִנָּֽם:

This is to be the civil and criminal code of a nation; it is to set forth
the principles and ordinances of justice and humanity that are to regulate
human relationships within the framework of the state. As to be
expected, the first section of the code deals with personal rights. But
with what does this section begin? With laws applicable if a man sells
another man, and if a man sells his own daughter as a slave!!!
This beginning would be unthinkable, inconceivable, were the Written
Law actually the “book of law” of the Jewish people, the sole primary
source of “Jewish law.” What a mass of laws and legal principles must
have already been stated and established, considered and clarified, before
the Torah could even turn to treat these cases, which surely are only
exceptional cases! And yet it is precisely with these verses, which limit
the most sacred of human rights and negate the right to personal freedom,
that the Law begins!

However, the primary source of Jewish law is not the written word,
the “Book,” but the living teachings of the oral tradition; the “Book”

serves only as an aid to memory and a resource when doubts arise. The
Book itself establishes the fact that the whole Torah had already been
transmitted to the people and impressed upon them and lived by them
for forty years, before Moshe — just before his death — turned over
to them the Book of the Torah. Accordingly, it is primarily the exceptional
cases that are recorded; for it is precisely from them that the
principles of ordinary life can be derived most clearly.

On the whole, the “Book” records not principles of law, c'lalim, but
individual concrete cases, and they are recorded in such an instructive
manner that one can easily deduce from them the principles that were
entrusted to the living consciousness of the oral tradition. The language
of this “Book” was so skillfully chosen that in many instances an unusual
term, a change in sentence structure, the position of a word, an extra
or missing letter, and so forth, can imply a whole train of legal concepts.
This Book was not intended as a primary source of the Law. It was
meant for those who were already well-versed in the Law, to use as a
means of retaining and reviving, ever anew, the knowledge that they
had already committed to memory. It was intended as a teaching aid
for teachers of the Law, as a reference to confirm the Oral Law, so that
the students should find it easy, with the aid of the written text before
them, to reproduce in their minds, ever anew, the knowledge they received
by word of mouth.

The relationship between Torah sh'b'kasav and Torah sh'baal peh is like that
between brief written notes taken on a scientific lecture, and the lecture
itself. Students who attended the oral lecture require only their brief
notes to recall at any time the entire lecture. They often find that a
word, a question mark, an exclamation mark, a period, or the underscoring

of a word is sufficient to bring to mind a whole series of ideas,
observations, qualifications, and so forth. But for those who did not
attend the instructor’s lecture, these notes are not of much use. If they
try to reconstruct the lecture solely from these notes, they will of necessity
make many errors. Words, marks, and so forth, that serve the
students who listened to the lecture as most instructive guiding stars
for the retention of the truths expounded by the lecturer appear completely
meaningless to the uninitiated. The non-initiate who will attempt
to use these same notes in order to construct (as opposed to reconstruct)
for himself the lecture he did not attend will dismiss what seems unclear
as baseless mental gymnastics and idle speculations leading nowhere.

God’s Law, the Torah, wants to instill in us the principles of justice
and humanity, on the basis of which it commands us to respect human
rights. It starts off with the criminal, specifically one who takes the
property of his fellow man, a crime that in all other states is punished
by severe corporal punishment and imprisonment. Let us see what is
to be done with such a criminal according to God’s Law in His state.

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