Letter and Spirit

For the week ending 13 February 2021 / 1 Adar 5781

Notes to the Oral Law

by Rabbi Yosef Hershman
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Suppose you were reading a text which began:

An RNA-based sequencing approach has been applied to characterize the genome of SARS-CoV-2, which is 29,881 bp in length, encoding 9860 amino acids.

It would be clear to you that this is intended for someone with some background of the subject. It presupposes knowledge of what RNA is, what sequencing is, what a genome is, what amino acids are, and some familiarity with nomenclature. It would not be the first paragraph in a molecular biology textbook. You might find it in someone’s notes after reading a chapter in such textbook.

This is how Rav Hirsch explains the presentation of civil and criminal law in the Torah, or, more specifically, how the presentation is ordered so as to demonstrate the authenticity of the Oral Law.

This is to be the civil and criminal code of a nation. It is to set forth the principles and laws of justice and humanity that are to regulate human relationships. It is, perhaps, expected that the first section should address personal rights. But the choice of which rights are the ones first addressed is less expected: the laws applicable when a man sells another man, or when a man sells his daughter as a slave!

This beginning would be inconceivable were the Written Law actually the “book of law” — the primary source of law of the Jewish People. 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 exceptional cases — the cases that discuss limitations on the most sacred of human rights!

Clearly, the primary source of Jewish law is not the Written Word, but the living teachings of the Oral Tradition. The “Book” serves only as an aid to memory and a resource when doubts arise. The entirety of Torah was taught to the people in a system of oral transmission by Moshe over the course of their sojourn in the wilderness. It was given over in writing shortly before his death. Here we see exceptional cases recorded, because it is from them that the principles of ordinary life can be derived most clearly.

The Written Book does not set forth organized general principles, but instead records individual concrete cases. From those cases, the general principles are deduced. Moreover, the wording of the Written Book is so precise that in many instances an unusual word, a change in sentence structure, an extra or missing letter, and other nuances can imply a whole train of legal concepts.

The Written Law was intended not as a primary resource to those unfamiliar with the law, but as an aid to those already well-versed in the law. This can be compared to the written notes taken on a scientific lecture and the lecture itself. When consulting notes, a particular word, punctuation mark, highlighting or underline is sufficient to bring to mind a whole series of ideas heard in the lecture. The Written Law is used in these ways in the Talmud to support or refute interpretations passed down through the Oral Tradition in cases of doubt, uncertainty or controversy. He who did not attend the lecture will not understand these nuances and clues. If he attempts to use those notes to construct (as opposed to re-construct) the lecture he did not attend, he will dismiss what seems unclear. So too, to the unlearned in the Oral Law, the Written Law remains incomprehensible.

  • Sources: Commentary, Shemot 22:2

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