Rabbi Yehoshua, the Bat Kol, and Legal-Religious Epistemology

There are two passages from the Talmud Bavli that, perhaps more than any other, are taken to be fundamental to our understanding of the legal process of Halakhah. The first is the story known as Tanur Shel Akhnai, found in Baba Metsia.

It has been taught: On that day R. Eliezer brought forward every imaginable argument , but they did not accept them. Said he to them: If the halakhah agrees with me, let this carob-tree prove it!Thereupon the carob-tree was torn a hundred cubits out of its place others affirm, four hundred cubits. No proof can be brought from a carob-tree,they retorted. Again he said to them: If the halakhah agrees with me, let the stream of water prove it!Whereupon the stream of water flowed backwards — ‘No proof can be brought from a stream of water,they rejoined. Again he urged: If the halakhah agrees with me, let the walls of the schoolhouse prove it,whereupon the walls inclined to fall. But R. Joshua rebuked them, saying: When scholars are engaged in a halakhic dispute, what have ye to interfere? Hence they did not fall, in honor of R. Joshua, nor did they resume the upright, in honor of R. Eliezer; and they are still standing thus inclined. Again he said to them: If the halakhah agrees with me, let it be proved from Heaven!Whereupon a Heavenly Voice cried out: Why do ye dispute with R. Eliezer, seeing that in all matters the halakhah agrees with him!But R. Joshua arose and exclaimed: It is not in heaven.What did he mean by this? Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to a Heavenly Voice, because Thou hast long since written in the Torah at Mount Sinai, After the majority must one incline.[1]

This passage depicts a debate between R. Eliezer and the rest of the sages, wherein R. Eliezer calls on increasingly impressive miracles as verification for his argument, culminating in a heavenly voice that proclaims explicitly that R. Eliezer is correct. To this R. Yehoshua responds that the Torah itself says we do not care what revelation has to say about halakhah, and instead we follow the Torahs own law that the majority vote is decisive. Halakhah was given to the Israelites to decide; It is in human, not Divine, hands.

The second gemara is revolves around yet another heavenly voice, this one in regard to a dispute between Bet Hillel and Bet Shammai, recorded in Masekhet Eruvin.

Abba stated in the name of Samuel: For three years there was a dispute between Beth Shammai and Beth Hillel, the former asserting, The halakhah is in agreement with our viewsand the latter contending, The halakhah is in agreement with our views. Then a Heavenly Voice issued announcing, [The opinions of] both these and these are the words of the living God, but the halakhah is in agreement with the rulings of Beth Hillel. Since, however, both are the words of the living Godwhat was it that entitled Beth Hillel to have the halakhah fixed in agreement with their rulings? Because they were kindly and modest, they studied their own rulings and those of Beth Shammai, and were even so [humble] as to mention the actions of Beth Shammai before theirs.[2]

This passage depicts a debate that seems to have been unresolvable. It dragged on for three years, until such time as a heavenly voice came forth to decide it, with a surprising and radical conclusion. Instead of declaring which opinion is correct, the heavenly voice declares that both opinions are correct, and it is only because practice cannot simultaneously uphold both opinions that the voice must declare which one is right.But it is technical right,a practical necessity rather than an ontological fact. The halakhic system is such that there are issues regarding which reasonable people might disagree, in which case both of them are essentially correct, even if the demands of practical law are not so forgiving.

While these two passages are often touted for giving basic principles of the Oral Law and the Jewish Tradition, there is an essential contradiction between them that is often overlooked. The essential point of the first passage is that we do not listen to revelation when it comes to deciding halakhah, with the particular form of revelation under discussion being a heavenly voice. Yet the second passage hinges on the information learned from a heavenly voice. These two passages cannot coexist. Of course, numerous commentators have gone to lengths to show how they can and in fact do coexist, usually by putting conditions on R. Yehoshuas blanket statement that we do not listen to revelation.

The Talmud Bavli itself, however, maintains that these two passages are indeed contradictory, and that one should not attempt to resolve them by limiting one of them.

For it has been taught: The halakhah is always in accordance with the ruling of Beth Hillel. Nevertheless one who desires to adopt the view of Beth Shammai may do so, and one who desires to adopt the view of Beth Hillel may do so. One who adopts the view of Beth Shammai only when they incline to leniency, and likewise the view of Beth Hillel only when they incline to leniency, is a wicked person. One who adopts the view of Beth Shammai only when they incline to strictness and likewise the view of Beth Hillel only when they incline to strictness, [is a fool and] to such a one applies the verse: But the fool walks in darkness. But one must either adopt the view of Beth Shammai in all cases, whether they incline to leniency or strictness, or the view of Beth Hillel in all cases, whether they incline to leniency or strictness. Now is not this statement self-contradictory? At first it says: The halakhah is always in accordance with the ruling of Beth Hillel, and immediately after it says: Nevertheless one who desires to adopt the view of Beth Shammai may do so? This is no difficulty. The latter statement relates to the practice before the Heavenly Voice was heard, whilst the former states the law as it is after the Heavenly Voice was heard. Or, you may even say that the latter statement too was made after the Heavenly Voice was heard. [and yet there is no contradiction], for that statement is the view of R. Joshua who exclaimed: We pay no attention to a Heavenly Voice![3]

This third passage says that the ruling of the heavenly voice, that the halakhah is like Bet Hillel, was considered legally binding, except by R. Yehoshua who did not accept revelation as legally binding.

This passage leaves one thing unclear, however. While R. Yehoshua is explicitly said to be rejecting the decision that the practical law is always like Bet Hillel, it is unclear to how he treats the first half of the heavenly voices declaration. Does R. Yehoshua agree that both these and these are the words of the living God? There are arguments in either direction. On the one hand, this information is received via revelation, something R. Yehoshua apparently rejects. On the other hand, the information is not halakhically decisive, and it is possible R. Yehoshua only denies revelation a decisive legal capacity, rather than the ability to convey information about halakhah more generally, in which case he would only reject the second half of the heavenly voices statement, but not the first.

While its impossible to know for certain, it may be fruitful to speculate a little. If we go back to the original statement of the heavenly voice in the second passage we looked at, the two halves of the proclamation are connected. The first half tells us that more than one halakhic opinions can be essentially correct. While this clarifies why the debate under discussion in that passage had raged on for three years, it presents an immediate practical problem. Once you know for certain that two contradictory opinions are correct, how do you decide the practical law? No matter which one you choose you will know that you are violating a different, but also correct, opinion. Therefore the proclamation has a second half, where it gives a decisive ruling as to what should be done practically. No matter what is essentially correct, there is a different practical measure of correctness, and what is most correct in that sense is the opinion of Bet Hillel.

As connected as the two halves of the heavenly voices proclamation are, it is entirely possible that R. Yehoshua not only rejects both the second and first halves of the proclamation, but rejects the second half because he rejects the first half. The heavenly voice appears in the middle of a debate which apparently could not be resolved through the normal methods of halakhic jurisprudence. Given a Divine source of information, it is easy to determine who is ultimately correct and to then establish practice accordingly (notwithstanding a surprising turn of events wherein both opinions are deemed to be essentially correct). R. Yehoshua does not have this option. Instead, he sees that there are times when the halakhic discussion will have no single, obviously correct, answer. In such cases the answer is not to declare all answers equally correct or incorrect, but to simply allow every capable person to attempt to determine what seems to them to be correct in that situation. While R. Yehoshuas entirely human conception of the halakhic system leads him to reject R. Eliezers opinion by Tanur Shel Akhnai, it leads to certain cases where the only option is not to be so decisive. Thus R. Yehoshua’s different conception of viable sources of halakhic information also leads, in some cases, not only to different halakhic conclusion, but to different types of conclusion, to conclusions that are very human attempts at arriving at halakhic correctness, as opposed to divine concessions to practicality.

[1] TB Baba Metsia 59b. Translations from halakhah.com, with some adaptation for ease of reading and clarity.

[2] TB Eruvin 13b.

[3] TB Hulin 43b-44a.

Parashat Yitro 5775 – When Judges are Priests: On the place of the Teachers in Relation to the Law

When Judges are Priests: On the place of the Teachers in relation to the Law

Leading up to the Revelation at Har Sinai, the people are commanded not to approach the mountain (Shemot 19:12-13). Bizarrely, right before the ten commandments, perhaps the most pivotal moment of  Sefer Shemot, Moshe is commanded to once again tell the people to stay away from the mountain (19:21-24). While superficially redundant, this second command differs from the first in that it refers not only to “the people” but also to “the priests that approach God” (19:22). This immediately presents a problem as the priests (כהנים) that the Torah normally speaks of, Aharon and his sons, have not been appointed yet, nor has the Mishkan, their place of work, been built yet, nor have the relevant laws even been given yet. Though there are multiple approaches within the traditional commentators when it comes to understanding this phrase, we will focus on the rather unique approach of R’ Hezekiah ben Manoah (more commonly known as the Hizkuni). In order to fully understanding why he chose the approach that he did, we will first look at some of the more common understandings, enabling us to appreciate the unique and powerful message of the Hizkuni’s approach.

The most common understanding of the “priests that approach God” is that they are the firstborns of the Israelite nation. This approach originates in the gemara (Bavli, Zevahim, 115b), and is taken by R’ Avraham Ibn Ezra, Rashi, Rashbam, and Rabbeinu Behaye, as well as being mentioned as a possibility in the Ohr HaHayyim and the more modern Daat Mikra commentary. This interpretation is based on a few factors. First is the dedication of the firstborns to ‘א in Shemot 13, as a consequence of ‘א saving them from the death of the firstborns in Egypt. Perhaps more crucial though is the replacement of the firstborns with the Leviim in Bamidbar 3 (mentioned again in Bamidbar 8). The Leviim are dedicated to the work of ‘א’s Sanctuary, the Mishkan (Bamidbar 18:6). This implies that, before they were replaced by the Leviim, the firstborns were in charge of the work of the mishkan. However, this approach suffers from several problems. First is the understanding of the phrase “that approach God.” Ibn Ezra mentions two understandings of this phrase. The first is that this “approach” is their position during the Revelation at Sinai, that the firstborns will be standing closer to the mountain than the rest of the Israelites, though still beyond the border mentioned in Shemot 19:12-13. The problem with this is that the context of the phrase “that approach God” is the command for the priests to stay beyond the fence, implying that for some reason the firstborn would think they do not need to stay beyond the border. Thus the command has to be in response to something that happened in the past that would give the priests this impression. This is presumably what motivates Ibn Ezra’s second understanding, that the “approach to God” described in this verse is a reference to the priests bringing sacrifices on the altar that Moshe built after the war with Amalek. While this is certainly possible, and the altar was built just two chapters previous to our verse making it somewhat contextual, it suffers from not being explicit in the text. Without any explicit textual mention of sacrifices being brought on the altar, it is more likely that the altar was built as a memorial and as an act of gratitude to ‘א, in the manner of the Avot (cf. Bereishit 12:7-8, 13:18, 33:20, 35:7). However the larger issue with understanding the “priests” as the firstborn is that when the sanctified firstborn are replaced, it is not by the priests, but by the Leviim, so to say that they are priests here in Shemot 19 would be a little strange.

Though mentioned by fewer commentators, there is an approach that avoids this issue. Both Rabbeinu Behaye and the Ohr HaHayyim mention the possibility that the “priests that approach God” of Shemot 19 are the sons of Aharon, who will in the future be appointed as priests. This however suffers from the same lack of precedent as the previous interpretation. Simply put, before Aharon’s sons are explicitly appointed as priests in Sefer Vayikra, they have no reason to think they should stand closer to the mountain than anyone else, and so it is unlikely that they would have to be told not to do so.

This brings us to the comment of the Hizkuni. The Hizkuni actually presents two possibilities. His first suggestion makes use of the initial understanding, that the priests are the firstborns, but changes it in a way that avoids the problematic lack of precedent. Hizkuni says that it was the 70 Elders that were firstborns.[1] This has the advantage of the firstborns approach in that they are sanctified to ‘א, but it also has an explicit textual precedent. In Shemot 18, the chapter immediately prior to the one we’re dealing with, the Elders eat a meal with Yitro and Moshe “before ‘א” (18:12). While the exact meaning of this phrase is unclear, it would seem to indicate a degree of closeness or familiarity with ‘א that would require them to be specifically told that they need to stay back. However, this approach can be understood in one of two ways. The first is that the “Elders” is essentially a subcategory of the “Firstborns.” While this is possible it is also somewhat strange, and not only because it is unlikely that every single one of the Elders was also a firstborn. More importantly, in this understanding the seventy Elders are firstborns, but there were plenty of other firstborns who aren’t in this category. Thus the fact that the Elders are firstborns would be merely coincidental, and it is strange that the Hizkuni would mention it. More likely is the second reading, that the Elders and the Firstborns are two separate but identical categories, both of which contributed to them being called “priests.” Thus both the sanctification to ‘א and the eating before Him are significant. This too however suffers from a strangeness, namely that not only would all of the Elders be firstborns, but that there would only be 70 firstborns in a group with 600,000 men. This is likely what prompted Hizkuni to offer his second, more original, understanding.

Hizkuni’s second suggestion is that the “priests that approach God” of Shemot 19:22 are the Judges and Officers appointed in Shemot 18. While his assigning of the term “priests” to the judges is quite original, this understanding has a certain logic to it, as Hizkuni explains. As support for this approach, Hizkuni quotes Devarim 1:17, “for the judgment is God’s.” Thus their very nature as judges has a certain logic to it. Meanwhile, Sefer Devarim also conflates the priests with the teachers of the Law (31:11, 33:10), a job specifically referenced in context of the appointment of the Judges in Shemot 18 (vss.16, 20). So while the priest would be the teachers once they get into the land, Hizkuni sees the teachers as the priests before the giving of the Torah. Their special positions as teachers and Judges makes them automatically closer to ‘א , not to mention it separates them from the rest of the people who they would have seen as students. This alone might have been reason enough for them to think that they should stand closer to the Revelation at Sinai, but, as Hizkuni points out, there is another reason for them to think that. The Revelation at Sinai is the revelation of the Law, and as those responsible for teaching and adjudicating that law, it is quite natural that they would have thought they should be closer. This would not have been a privilege, but a responsibility, to be as intimately involved in the giving of the law as possible. In this, however, they are rebuffed, as Moshe is specifically sent down to tell them that they are not separate, that the entire people is equal before the law. The only exception is Moshe (Aharon is included only in his capacity as Moshe’s spokesperson), who throughout Bnei Yisrael’s journey in the Wilderness receives the law via prophecy, while the judges in the desert and after Moshe’s death do not (I have written about this here). Thus, while the judges and teachers of the Law are close to ‘א, there is an important distance between them and the revelation of the Law.

The Hizkuni’s comment has an important lesson to teach us about the relationship between the people of Israel, rabbinic authority, and the Torah. We know from Devarim that, “Moses commanded us a law, an inheritance of the congregation of Yaakov” (33:4). The law was not given to its teachers, to the judges, but to the entirety of the people of Israel. Rabbinic authority is not inherent in the rabbis, but comes from their familiarity with the law; not from creating the law but from understanding it. Thus it is incumbent upon all of Israel, each and every one of us, to approach the Torah personally, not to depend upon rabbinic intermediaries. The Torah belongs to all of us, and we each have our own portion in it. It’s not enough to trust that someone knows the law, we have to understand and appreciate it ourselves.

[1] In this he combines Zevahim 115b with מכילתא בחדש פ״ד.

Parashat VeZot HaBerakhah 5775 – The Written Torah, The Oral Torah, and the Post-Mosaic Void

וְלֹא קָם נָבִיא עוֹד בְּיִשְׂרָאֵל כְּמֹשֶׁה

Parashat VeZot HaBerakhah closes Sefer Devarim, as well the Torah as a whole, with two final passages. The first records Moshe’s final farewell blessings to the Tribes of Israel, and the second depicts his death on Har Nevo. Beyond creating a sense of closure to a Torah that has been in large part marked by Moshe’s presence, the 34th chapter of Sefer Devarim goes out of its way to make it clear just how large the void of Moshe’s absence is. It first does this by stating in no uncertain terms that Moshe was totally and irrevocably gone from the midst of Bnei Yisrael. “So Moshe the servant of the Lord died there, in the Land of Moav, at the command of the Lord. He[1] buried him in the valley in the land of Moav, near Bet-Peor; and no one knows his burial place until this day” (Devarim 34:5-6). More important, however, is what might be considered the Torah’s final epitaph for Moshe Rabbeinu. “Never again did there arise in Israel a prophet like Moshe—whom the Lord singled out, face to face” (34:10). Not only is Moshe gone, but he can never be replaced. This begs the question, in what way will he be missed? What absense is Bnei Yisrael left  with after Moshe’s death that can never be filled? Discovering the answer to this requires exploring a verse that contradicts the final chapter of the Torah, taking a look at some peculiar midrashim, and comparing the functions of prophecy before and after Moshe’s death. All this in turn will point us toward the mean of Moshe and his Torah.

The basic idea of Devarim 34:10 is that there would never again be a prophet “like Moshe.” This would seem to be contradicted by Moshe’s statement that ‘א would raise up a prophet like him. “The Lord your God will raise up for you a prophet from among your own people, like myself; him you shall heed” (Devarim 17:15). In contradiction to the idea that there will never be a prophet like Moshe, Devarim here seems to be saying that ‘א will specifically raise up a prophet like Moshe. This contradiction can be solved by looking at ‘א’s statement in Bamidbar 12:6-8.

When a prophet of the Lord arises among you, I make Myself known to him in a vision, I speak with him in a dream. Not so with My servant Moshe; he is trusted throughout My household. With him I speak mouth to mouth, plainly and not in riddles, and he beholds the likeness of the Lord.

Devarim 34 seems almost to build on these verses. Both refer to Moshe as ‘א’s servant (Bamidbar 12:7; Devarim 34:5), and where Bamidbar depicts Moshe speaking to ‘א “mouth to mouth” and seeing His “likeness” (12:8), Devarim combines these two as Moshe speaking to ‘א “face to face” (34:10). More importantly, this passage groups Moshe with other prophets while simultaneously distinguishing him from them. While Moshe is a prophet, and therefore other prophets can be said to be “like Moshe,” his prophecy is somehow unique and qualitatively different from that of all other prophets. Unfortunately, these verses are not quite clear regarding the nature of this qualitative difference.

The most obvious and understandable difference stated is that Moshe was able to receive prophecy while awake, where other prophets dreamt their prophecies. Secondarily, Moshe was spoken to by ‘א, “plainly and not in riddles,” implying that other prophets received cryptic messages they then had to interpret, rather than clear instructions. While these differences are clear, they are also most technical, and do not quite seem to be the qualitative difference implied in the verse. Presumably that difference can be found in the last distinction, which is the most striking, and unfortunately also the least clear, which is that Moshe spoke to ‘א face to face. It’s impossible to know for certain what this might mean, all that is really clear is that it is very significant. Ultimately, all these verses can give us is technical differentiation in terms of how the prophecy was conveyed, and the a vague statement that tells us of Moshe’s greatness.

Another route to determining exactly what was different about Moshe’s prophecy would be to compare Moshe’s prophetic behavior in the Torah with that of other prophets throughout Tanakh. This would seem to be a more fruitful approach, as there is one distinction that is immediately obvious: Moshe is a lawgiver, and the other prophets are not. Throughout Tanakh, prophets are sent to Bnei Yisrael when they are breaking the laws of Moshe, but not in order to remind them of the laws, or to bring them new laws, but in order to rebuke and exhort them, to motivate them to be better. Not only did Moshe transmit the commandments to the people, but in cases of doubt, such as Benot Tselophehad (Bamidbar 27:1-11) or the Blasphemer (Bamidbar 24:10-16), Moshe was able to speak to ‘א and to receive the new law. Post-Mosaic prophecy is meant to remind the people of the stakes of their covenantal obligations, not to create new ones. When Bnei Yisrael lost Moshe, Prophetic Law was lost with him.

This loss is expressed profoundly in an aggadah depicting Yehoshuah’s early experiences as leader of Bnei Yisrael[2]. The gemara depicts Yehoshua standing before Moshe in his final days, and Moshe tells Yehoshuah to ask any questions he might have. Yehoshua responds that as he never left Moshe’s service even for a moment, there is nothing he does not know, at which point he promptly forgets 3,000 laws. Fast-forward to the period of mourning for Moshe, when the people approach Yehoshuah and ask him to restore the laws via prophecy, as Moshe would have, to which Yehoshuah responds “It is not in Heaven,” meaning that the time for prophetic law has passed, and therefore he cannot use prophecy to restore the forgotten laws.

Initially, Yehoshuah failed to appreciate the vast chasm separating himself from Moshe. Despite the verses making it clear that ‘א would be with Yehoshuah as he was with Moshe (Yehoshuah 1:5), the one supreme difference between them is that only Moshe could prophesy the law. The midrash represents this failure as 3,000 halakhot being forgotten, caused by misplaced confidence in his ability to prophesy the law when necessary. It is clear from the midrash that Yehoshuah figured out his mistake quite rapidly, as within the thirty days of mourning for Moshe he has already realized that the law “is not in Heaven” anymore.

This is a reference to the famous aggadah of Tanur Shel Akhnai[3], in which the halakhah is decided according to the majority of the sages against not just miracles, but even against a voice calling out from Heaven. After the voice rings out, R’ Yehoshuah stands up and says, “We do not listen to a Heavenly Voice,” and the law is decided like the majority. The reason[4] for this is that the law of the Torah, as laid down by Moshe, is that the halakhah follows the majority[5], and no prophet or heavenly voice thereafter is able to go against it[6]. The Law was sealed with the death of Moshe, and it cannot be changed. It can only be interpreted.

The Written Torah came from Heaven, and now the Oral Torah lives on Earth[7]. The switch from Prophetic Law to earthly law has significant ramifications. the most significant, perhaps, is according to what the law is decided. When Moshe did not know the law, he went to ‘א to ask what the law was (Bamidbar 27:1-11; 24:10-16), and ‘א would relate to the Moshe the Heavenly Truth of the Law. When Moshe asked ‘א about the case of the Daughters of Tselophehad, the midrash said that they had spoken the Law as it was written before ‘א in Heaven, according to the Heavenly Truth. Post-Moshe, in the era of the Oral Torah, a judge must decide the law only according to what his eyes see[8]. The law is not decided according to divine ideals, but in the application of divine law to gritty human reality.

Perhaps the most important difference between prophetic and earthly legislations is the function and purpose of the Law. In a situation where laws not only spring forth from the mouth of the prophet but can be updated, abrogated, and revised by the divine impresario at a moment’s notice, the law functions as a way of responding to or manifesting the will of ‘א. Moshe told the people what ‘א commanded them to do at that moment and they responded by carrying out that command. After Moshe’s death, the law serves a very different function. Instead of representing what ‘א thinks the people should do in that specific case, the law expresses what ‘א thinks should be done by the people in general. The law code becomes a framework for living a life according to godly principles, rather than a specific set of commands fulfilling a specific set of godly purposes. The Torah of Moshe becomes the guiding story through which we interpret, experience, and contextualize our lives.

After Moshe’s death, the Torah went from being a set of immediate divine commands to a legislated framework for Jewish society. We stopped looking to ‘א to see what to do next, and started creating a society. Thus Moshe dies as Bnei Yisrael are about to enter the land of Israel, as a human society in an earthly land requires laws organized around its living reality, not around a divine ideal. Moshe gave Bnei Yisrael a Torah of divine commands, and we have inherited as a communal way of life (Devarim 33:4). This is not to say that the divine ideal is cast aside, but rather that it is applied practically. The laws of the Torah became horizontally oriented, focused on creating a godly society, instead of being vertically oriented, focused on fulfilling the immediate Will of ‘א. Though that change is not necessarily a bad thing, that dynamic connection is what we lost when we lost Moshe.

[1] The Hebrew here allows for a delightful ambiguity wherein the subject of “He buried” could just as easily be Moshe or ‘א, as brought up in the gemara (Talmud Bavli, Masekhet Sotah, 14a), and it is left up to the reader to decide if it is more logical that Moshe buried himself or that he was buried by ‘א. The simplest explanation of the phrases “he buried him,” namely, that a person whose identity was unimportant in context, possibly Yehoshuah or one of the tribal leaders, buried Moshe, is ruled out by the end of the verse, “and no one knows his burial place until this day.”

[2]  Talmud Bavli, Masekhet Temurah 16a.

[3]  Talmud Bavli, Masekhet Baba Metsia, 59b.

[4] Tosafot, Masekhet Hulin, 44a; Rambam, Yesodei HaTorah 9:1; Kesef Mishneh Ad Loc.

[5] The fact that Hazal derived a biblical commandment to follow a majority from a verse that states quite plainly that the majority should not be followed into error is part of a much larger discussion about the relationship of the Written and Oral Torahs and the nature of Midrash, for which this composition is not the place.

[6] The question of a “Time to act for God” (“עת לאשות להשם”) or a “Temporary Instruction” (“הוראת שעה”) wherein a prophet violates a biblical commandment, or instructs others to do so, is a function of what Rambam describes, in Moreh Nevukhim 3:34, as the nature of a generally-applied system. Any system that is created to function on the general scale (for all the individuals of a group, for all moments in time, etc.), will inevitably come across specific points on the scale where it does apply perfectly, as it is intended for the general situation, and thus cannot account for every possible eventuality. In such a case the Prophet can be instructed by ‘א to violate the general law in a specific instance.

[7] The dichotomy depicted in this paragraph is roughly that between Rationalism, which originated in the Greek Theoria (determining via perfection of the mind the nature of the Divine reality, upon which law and behavior could the be based), and Empiricism.

[8] Talmud Bavli, Masekhet Baba Batra, 131a.

Parashat Devarim 5774 – The Oral Torah and The Things That Moshe Said

אֵלֶּה הַדְּבָרִים אֲשֶׁר דִּבֶּר מֹשֶׁה


Parashat Devarim opens the final book of Humash, marking a radical departure from the previous books. It’s uniqueness is encapsulated in the name by which it is referred to in Midrashim and the Gemara, “Mishneh Torah”, meaning “Repetition of the Torah”. This title is probably a reference to the many narratives and laws from previous books of the Torah that are repeated in Sefer Devarim. However, the narratives and laws[1] of Sefer Devarim also include many things not found in previous books, lack many things found in previous books, or outright contradict the laws and narratives of previous books. Parashat Devarim includes a few excellent examples of all of these, such as the appointment of judicial system (Devarim 1:9-18; originally found in Shemot 18) and the incident of the spies (Devarim 1:19-46; originally founding in Bamidbar 13-14). Perhaps the most striking changes from the previous books of the Torah to Sefer Devarim are in the writing style and the perspective of narration. The language and sentence structure used are strikingly different from the other books, to the point that switching from one to the other is actually difficult. Most of the books of the Torah are narrated from a third-person perspective (“And Moshe said…” “And Moshe struck the rock…”), but Sefer Devarim is dominated by first-person narration (“I said…” “We did…”). This final detail, as we shall see, actually contains the explanation for all of the other discrepancies of Sefer Devarim.

Sefer Devarim opens with the phrase, “These are the words which Moses spoke to all of Israel” (Devarim 1:1). Just a few verses later (1:6), Moshe begins a speech that spans for about 4 chapters of Sefer Devarim. Immediately thereafter, Moshe begins his second speech (5:1), which will span 22 chapters. This is followed immediately by the beginning of a third speech (27:1), filling chapters 27 and 28, and then chapters 29 and 30 are a fourth speech (beginning with 29:1).  The last four chapters of Sefer Devarim (31-34) are a narration of Moshe’s Last Acts and Farewells, much of which is still him speaking or singing, though not all of it. This breakdown demonstrates that Sefer Devarim is almost entirely a recording of Moshe’s speeches! 30 out of 34 chapters of Sefer Devarim, give or take a few verses, are entirely his speeches, and the other four chapters include a hefty amount of his speech as well. The sudden switch from third- to first-person narration is therefore obvious and understandable, as Moshe would not narrate from a third-person perspective. Fascinatingly, this also suggests that the style switch is also a matter of Moshe’s narration, meaning a switch from the previous, presumably Divine, perspective, to Moshe’s human perspective.

This raises an immediate issue in terms of our conception of the giving of the Torah. Rabbi Akiva says that the entirety of the Torah, in its general principles and its minor details, was given to Moshe on Har Sinai[2]. If this is true, then Sefer Devarim was given to Moshe on Har Sinai, from ‘א, and for it to be narrated by Moshe, phrased in his own perspective, would be strange at the very least. However, this is not the only opinion in Hazal. Rabbi Yishmael says that the general principles of the Torah were given on Har Sinai, and then the minor details were given in the Mishkan and in the Plains of Moav (where Moshe delivers the speeches found in Sefer Devarim)[3]. Even this does not quite say that Moshe himself said over, of his own volition, the speeches recorded in Sefer Devarim, but it is a step in that direction. The next step is taken by Abarbanel in his Introduction to his commentary on Sefer Devarim.

In truth, Moshe our teacher stated the words of this book and explained the mitzvot mentioned therein as he prepared to part from the people of Israel.  After he completed his words to Israel, God desired that they be included in the Torah as Moshe stated them.  Perhaps God added elements to those words at the time that they were committed to writing.  Thus, although the words may have been stated by Moshe, the authority to include them in the Torah’s text did not derive from him.  Moshe did not decide to commit these words to writing, for how could he compose even a single thing in God’s Torah without Divine sanction?  Rather, all of these words of the Book of Devarim were by the mouth of God, together with the rest of the Torah’s text, for God agreed with his formulations and favored the words of the ‘faithful shepherd’ Moshe.  Thus, God restated them to Moshe and ordered them to be written by him, and Moshe therefore composed them by God’s authority and not by his own

Thus the speeches of Sefer Devarim are actually Moshe’s own narration[4], which then received the Divine imprimatur when ‘א decided to make them part of the Torah[5]. The significance of this idea is powerfully expressed by Rav Tsadok HaKohen of Lublin[6].

The latter version of the Decalogue, that in Sefer Devarim, was said by Moshe, on his own account. Nonetheless, it is part of the Written Law. In addition to the mitzvot themselves that Moshe had already received at Sinai, by the word of God, these words as well [in Sefer Devarim], which were said on his own account, which are not prefaced with the statement, “And God said…”, these, too, are part of the Written Law. For all of his (i.e. Moshe’s) are also a complete “torah”, just like the dialogues of the patriarchs and other similar passages are considered part of the Written Law. But the material that begins “And these are the things” (i.e. the first verse of Sefer Devarim and the rest of the book that follows), material that was said on his own account, represents the root of the Oral Law, the things that the sages of Israel say of their own account.

Rav Tsadok is saying that as part of the ‘א’s Divinely commanded text, Sefer Devarim is part of the Written Torah, but as the words of Moshe Rabbenu, Sefer Devarim is the beginning of the Oral Torah. Therefore it is not strange that Sefer Devarim should depart from previous books of the Torah in retelling past events. As part of the Oral Torah, it is a completion and an interpretation of the Written Torah. It is Sefer Devarim’s nature as interpretive retelling that explains its divergences from previous recordings of laws and narratives in the Torah.

The first great example of that in Parashat Devarim is the Appointment of the Judges. This first occurs in Shemot 18, when Yitro arrives at Har Sinai and suggests the appointment of judges as a way to lighten Moshe’s burden. Yitro tells Moshe that he should take “able men, such as fear God, men of truth, hating unjust gain; and place such over them, to be rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens” (Shemot 18:21). Moshe does as Yitro recommended, and goes from being the sole judiciary authority to being the final authority when lower judiciary authorities were not enough. In Sefer Devarim, Moshe initiates the appointment of the leaders, due to his inability to lead the people.

And I spoke to you at that time, saying: “I am not able to bear you myself alone; the Lord your God has multiplied you, and, behold, you are this day as the stars of heaven in multitude. The Lord, the God of your fathers, made you a thousand times so many more as you are, and blessed you, as He has promised you! How can I myself alone bear your trouble, and your burden, and your strife? Get you, from each one of your tribes, wise men, and understanding, and full of knowledge, and I will make them heads over you.’ And you answered me, and said: ‘The thing which you have spoken is good for us to do.’ So I took the heads of your tribes, wise men, and full of knowledge, and made them heads over you, captains of thousands, and captains of hundreds, and captains of fifties, and captains of tens, and officers, tribe by tribe. And I charged your judges at that time, saying: ‘Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him. You shall not favor persons in judgment; you shall hear the small and the great alike; you shall not be afraid of the face of any man; for Justice is God’s; and the cause that is too hard for you you shall bring to me, and I will hear it.” And I commanded you at that time all the things which you should do. (Devarim 1:9-18)

There are many differences between this passage and the passage in Shemot. First off is the lack of any mention of Yitro is Sefer Devarim. More interesting, however, is the description of the judges, both in terms of their innate qualities and their assigned duties. Whereas in Shemot the men are described as “able men, such as fear God, men of truth, hating unjust gain,” in Devarim they are referred to as “wise men, and understanding, and full of knowledge.” Moshe appoints the men in Shemot as “rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens,” whereas in Devarim they are additionally appointed as “officers.” In Shemot Moshe chooses the men, whereas in Devarim the nation chooses them. These differences all flow from differences in the initial cause for the appointment in each passage. In Shemot the men are appointed to create a necessary Judicial structure, whereas in Devarim Moshe is appointing ‘heads” over the tribes, to help him lead a nation that has grown to large for his singular leadership. Therefore only Shemot mentions Yitro, while he isn’t part of the story in Devarim. The traits of the men chosen in Shemot are appropriate for judges, while the traits of the men chosen in Devarim are more generally useful for leadership. That’s why in devarim they are “officers” as well as judicial “rulers”. Shemot emphasizes the issues of jurisprudence, right before the giving of ‘א’s Law, where Devarim emphasizes matters of leadership. These two issues came up simultaneously, and we only get the full picture due to their being split apart textually.

The second such example that appears in Sefer Devarim is the Sin of the Spies. The first recording of this narrative occurs in Bamidbar 13-14, instigated by ‘א commanding Moshe to send men to scout out the land. The men bring back a misleading and evil report that causes Bnei Yisrael to rebel. Despite the protestations of the good spies, Yehoshua and Calev, Bnei Yisrael refuse to enter the land, leading to ‘א condemning the entire generation to die in the desert. The departures from this representation in Devarim are few, but significant.

And I said to you: “You have come to the hill-country of the Amorites, which the Lord our God gave to us. Behold, the Lord your God has set the land before you; go up, take possession, as the Lord, the God of thy fathers, has spoken to you; do not fear, nor be dismayed.” And you came near to me every one of you, and said: “Let us send men before us, that they may search the land for us, and bring us back word of the way by which we must go up, and the cities to which we shall come.” And the thing pleased me well; and I took twelve men of you, one man for every tribe; and they turned and went up into the mountains, and came to the valley of Eshcol, and spied it out. And they took of the fruit of the land in their hands, and brought it down to us, and brought us back word, and said: “Good is the land which the Lord our God gives to us.” Yet you would not go up, but rebelled against the commandment of the Lord your God; and you murmured in your tents, and said: “Because the Lord hated us, He has brought us forth out of the land of Egypt, to deliver us into the hand of the Amorites, to destroy us. To where are we going up? Our brothers have made our heart to melt, saying: The people is greater and taller than we; the cities are great and fortified up to heaven; and moreover we have seen the sons of the Anakim there.” Then I said to you: “Dread not, neither be afraid of them. The Lord your God who goes before you, He shall fight for you, according to all that He did for you in Egypt before your eyes; and in the wilderness, where you have seen how the Lord your God bore you, as a man bears his son, in all the way that you went, until you came to this place. Yet in this thing you do not believe the Lord your God, Who went before you in the way, to seek you out a place to pitch your tents in: in fire by night, to show you by what way you should go, and in the cloud by day.” And the Lord heard the voice of your words, and was angry, and swore, saying: ‘Surely there shall not one of these men, even this evil generation, see the good land, which I swore to give to your fathers… (Devarim 1:20-35)

Of the many differences here, a few stand out in particular. Where in Bamidbar 13, ‘א commanded the sending of the scouts, in Devarim the people asked to send spies. In Bamidbar the spies bring back a false report that incites the people, which is ineffectually countered by Calev and Yehoshua, while in Devarim the report of the scouts appears only in the words of the people after they have already rebelled. The people rebel of their own initiative and are rebuked not by Calev and Yehoshua but by Moshe himself. While here too there seems to have been two different things occurring simultaneously, two different missions performed by the same twelve men at the same time[7], depicted separately in two different places, this is not the reason for the differences here. Instead, here it seems to be simply a matter of a different perspective. By focusing on the initiatives and failures of Moshe and Bnei Yisrael, by excluding ‘א and the spies from the story, emphasis is placed on the actions and responsibility of the Nation and their Leader. Thus this retelling does not contradict or change the story, so much as it simply presents the narrative from a different point of view, emphasizing different things.

Sefer Devarim is a retelling of much of the laws and narratives of the Torah, but it is a complex retelling. It has additional information, intentional lacks of information, and apparent contradictions. However, far from posing a problem for the Torah’s integrity and for the religious reader, these complexities open up the Written Torah by anchoring it to our most precious gift, the Oral Torah. The Oral Torah is the god-given ability for the wise of Bnei Yisrael to interpret and apply the Written Torah, and it started with Moshe. Moshe took events and laws from the 40 years that Bnei Yisrael traveled in the wilderness and presented them in new ways, in order to convey the aspects he felt were most important for Bnei Yisrael to appreciate before entering the Land of Israel. Throughout the entirety of Sefer Devarim, many different aspects are emphasized, but a few themes, such as have been presented above, are dominant. The laws and events of Sefer Devarim highlight the ability, and corresponding responsibility, of Bnei Yisrael. Upon entering the land, everything will change for Bnei Yisrael. They will have to be responsible for themselves on a much greater level. They are losing Moshe, their faithful shepherd through the wilderness, and ‘א will begin to reduce His miracles and open Presence among them. The people can’t rely on Moshe or ‘א to take charge and save them. They will have to lead themselves, and they will have to take responsibility for their own mistakes. Correspondingly, the texts emphasize the ability of the people to do so. All of this is a function of Oral Torah. The Oral Torah allows for the expression of whatever aspects of the Torah are most relevant at any given time. “Since the destruction of the Bet HaMikdash, ‘א has no place in this world outside the 4 Amot of Halakhah.”[8] When the Bet HaMikdash was destroyed, the Oral Torah took us from the community-centered worship of the Bet HaMikdash to the individual-centered life of Halakhah. And when Bnei Yisrael were preparing to enter the Land of Israel, Moshe spoke to them the speeches of Sefer Devarim, that would take them from a people entirely dependent on ‘א to a people able to create a godly society, according to His laws, in His land.

[1] This composition will not discuss legal contradictions with previous books, as that is a separate topic. In brief, halakhic midrashim have their own method of solving it in relation to determining halakhah, and in terms of understanding the internal contradiction of the Torah text, it revolves around the institution of common law. For more on that and the specific case of Sefer Devarim, see essays 5-8 by Prof. Joshua Berman of Bar Ilan University, here.

[2] Talmud Bavli, Masekhet Zevahim, 115b.

[3] Ibid.

[4] While some struggle with the idea of a human hand in the composition of the Torah, it is important to remember the level of Moshe in his prophecy, to the point where the midrash describes his as half man and half elohim (Devarim Rabbah 11:4).

[5] This is actually suggested by the gemara: One does not pause [to call up another reader] in [the reading of] the curses, but one person reads them all.  Abaye said: This applies only to the curses in Torat Kohanim [Vayikra], but in Mishnah Torah [Devarim], one may pause.  Why is this so? The former are in plural form and Moshe spoke them in the name of Hashem, and the latter are in singular and Moshe spoke them on his own. (Talmud Bavli, Masekhet Megilla, 31b).

[6] Pri Tzadik, Kedushat ha-Shabbat, article 7. Translation from Professor Joshua Berman, here.

[7] One of the missions was about military intelligence, while the other was more about surveying the land. The first indicator of this is the different verbs used for what the “spies” will do in each case, “לרגל,” “to spy,” or “לתור,” “to scout”. For more on this see Rav Elchanan Samet’s excellent essay, here.

[8] תלמוד בבלי מסכת ברכות דף ח עמוד א