Sunday, February 1, 2015
Irrefutable Proof That Oral Torah was a Necessary Complement to the Written Torah [Menachem Elon]
I'd like to hear someone try to refute the following analysis:
"One may conclude from even a cursory examination that Biblical commandments and laws were accompanied by many explanations and detailed rules--given orally or preexisting in practice--which supplement and give meaning to what is written in the Torah. The following are a few illustrations.
With regard to the law of the Hebrew slave it is stated:
'When you acquire a Hebrew slave, he shall serve six years; in the seventh year he shall be freed, without payment.'
The basic intent of this and the ensuing verses is to limit the number of years of work and to establish the law applicable to a slave who enters his master's service either with or without a wife. Scripture postulates that it is possible to acquire a Hebrew slave and that how to do so is known, even though the Torah itself gives no details as to how such a slave may be acquired.
Later in the same passage it is said: 'When a man sells his daughter as a slave, she shall not be freed as male slaves are,' and also 'if he [the buyer] designated her for his son, he shall deal with her as is the practice with free maidens.' What is 'the practice with free maidens' to which the verse refers? Neither this verse nor any other part of the Torah explains the nature of this legal institution. It necessarily follows, therefore, that these were laws that were known and accepted by the people, and the Torah's provisions were additions and refinements.
Divorce is another illustration of the same point. The Torah states:
'A man marries a woman and lives with her. She fails to please him, because he has found something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house....[Then, if the woman marries a different man and that man divorces her or dies, her first husband] who divorced her first shall not take her to wife again.'
The thrust of the passage is to prohibit remarriage to one's former wife after she has married someone else. The passage is premised on certain legal assumptions: that the woman was married to the first man; that he divorced her with a bill of divorcement, which he handed to her; and that she then married someone else. The Torah is silent as to any details concerning how marriage is effected, the nature of a bill of divorcement, etc. If no Oral Law existed to explain and give content to these legal institutions, it would have been impossible in practice to carry out the provisions that are stated in this Scriptural passage.
The Book of Deuteronomy provides still another illustration:
'When there is a dispute between men and they go to law and a decision is rendered declaring the one in the right and the other in the wrong; if the guilty one is to be flogged, the judge shall have him lie down and be given lashes in his presence, by count, as his guilt warrants. He may be given up to forty lashes but not more, lest being flogged further, to excess, your brother be degraded before your eyes.'
The point of this section is to teach us that if the accused is adjudged to undergo flogging, the rule is 'He may be given up to forty lashes but not more.' But when is a person to be sentenced to flogging? How does the court declare the one in the right and the other in the wrong? This, too, was necessarily law that was customary or transmitted orally, and the Torah builds on this law and merely complements it.
Finally, many commandments by their very nature require at least some explanation in order to understand their meaning and delineate their scope. For example, the prohibition of work on the sabbath is repeatedly stated in very general terms: 'You shall not do any work,' 'And on the seventh day you shall cease from labor,' etc. But what manner of work is prohibited? The Torah lists only three: plowing, harvesting, and the kindling of fire. However, is there any logic to prohibiting only these forms of labor and not others that are similar and even more onerous? From the Torah itself we learn that there forms of labor were not the only ones prohibited. The Book of Numbers states:
'Once, when the Israelites were in the wilderness, they came upon a man gathering wood on the sabbath day. Those who found him as he was gathering wood brought him before Moses, Aaron, and the whole community. He was placed in custody, for it had not been specified what should be done to him.'
Thus, the people that found the man knew that he was violating the sabbath, in that this was one of the forbidden labors, but they did not know what punishment was destined to be prescribed for him.
In short, the existence of oral laws necessarily follows from what is revealed by examination of the Written Law. The undefined terms and vague references in the Written Law simply cannot be understood, and therefore the Written Law cannot be carried out, without the Oral Law, which provides the necessary explanation and complementation," Menachem Elon, Jewish Law: History, Sources, Principles, Vol.1, pgs. 200-203
Posted by Peter at 5:53 PM