The halakhic disputes between the Sadducees and the Pharisees and between
these groups and the Qumran community are disputes between groups that attempted
to develop coherent halakhic systems. When a religious community develops a
judicial system one of the essential questions is: by what authority are you
acting – ?? ???? who gives you the right to interpret, to develop, to
The loyalty of the priests was to the Torah and to its spirit and ideas. They tried to solve contradictions and to develop a system of laws that was both faithful to the Torah and could be practiced by the people. The result is what we call ‘priestly halakha’.
I will mention briefly 3 examples of the priestly halakha known to us from Qumran literature and the Tannaic Literature.
7 years ago I published a paper regarding the attitude toward slaughtering
and toward the handling of blood. The priestly rule in this subject, expressed
in Jubilees and in other sources from Qumran, is a product of an effort to
solve the contradicting chapters – Lev. 17 and Deut. 12 by applying Lev.
17 to Deut. 12. We do not know of such an effort among the Pharisees nor do
we find it in the Tannaic literature. Another, related example is the law concerning
a perjurer in a capital offence (Deut. 19:19, M. Makot 1:6). Following the
ideas expressed in other laws in the Pentatuech, in Num 35 and Leviticus 24:
17-21, of “soul for soul” and of “blood for blood” the
priests (who cite the verse from Leviticus in the Mishna) held that the perjurer
in a capital offence case would be executed only when the victim was already
put to death. As we know from the Mishna, the Sages ruled otherwise.
It is reasonable to assume that during most of the Persian period and during the beginning of the Hellenistic period the priestly halakha ruled, at least in Jerusalem. With the emergence of the Hasmoneans as the leading party in Judea, new groups came to power, among them the Pharisees whose loyalty was more to the ancestral tradition than to the written Torah and its spirit. The Qumran Community is the product of this period -- its members could not accept the Pharisees as partners. Their withdrawal was accompanied by the adoption of a new calendar, that of 364 days. The Sadducees decided to stay, and indeed their way was proven to be right since, after a few decades, under John Hyrcanus, they returned as the leading party.
Since the Qumranites were no longer at the political and spiritual center, the claim of authority from the Temple could not be used by them. Therefore they had to create a new claim. Contrary to the common view among scholars, none of the Qumran corpus presents itself as a product of Prophesy. However, the claims of authority found in Qumran writings embrace divine revelation of halakha as their starting point.
In a paper published a few years ago in Tarbiz, I distinguish between two different points of view regarding halakhic authority in Qumran: Sinaic revelation and divinely inspired human exegesis. Sinaic revelation is the claim found in the book of Jubilees (written at around 100 b.c.e.) [and in the Temple Scroll]. Jubilees represents itself as the second written Torah, dictated to Moses on mount Sinai while he came to receive the first Torah, the Pentateuch.
Using important and difficult verses from Exodus and Deuteronomy the book
of Jubilees draws a picture of two written torot handed down at Sinai. One
Torah is written on the two stone tablets: “The Lord said to Moses, Come
up to me on the mountain and remain there that I may give you the stone tablets
[and] the Torah and the commandment which I have written to instruct them” (Exodus
24:12). The other Torah is written on the Heavenly tablets and is copied by
Moses: “And the Lord said to Moses: Write down these words, for in accordance
with these words I make with you a covenant and with Israel. (Exodus 34:27).
The purpose of the second Torah, the one copied by Moses, is to be a witness
when the Israelites will forget all the true interpretation of the first Torah.
Here, a verse from Deuteronomy is alluded to: “Therefore, write down
this poem and teach it to the people of Israel; put it in their mouths, in
order that this poem may be my witness against the people of Israel… then
the poem shall confront them as a witness” (31: 19-21).
It seems to me that the two claims in Qumran make us more aware of the claim of authority found in the Tannaic literature and more sensitive to its existence. I would like to suggest that in the Tannaic literature we find the same two claims as those found in Qumran. However, there are two differences between Qumran and the Sages. First, in the Tannaic literature the Sinaic revelation is oral, not written. Second, in the Tannaic world the two claims did not co-exist at an early period. The Sinaic revelation claim was the one that was held already during the second Temple period and was presented by the tannaim’s forefathers, the Pharisees. It seems reasonable that Jubilees’ two written torot are a reply to the two different torot of the Pharisees. The second claim, that of divinely inspired human exegetical process, belongs to later generations, more precisely it is related to R. Akiba.
Let me try to present and prove my suggestion. I will concentrate first on
the Tannaic oral Torah. My intention is to show that the notion of an oral
law passed from Sinai already existed in the second temple period.
The first source is Josephus. Indeed in most of his writing Josephus, while
relating to the Pharisees, mentions the term ancestral tradition pa??
As to the source from the Tannaic period. In the Sifra there is a dispute
between an anonymous voice and between R. Akiba:
Tana-kama, pointing to the plural form of Torah in the verse, states that two Torot were given to Israel. R. Akiba is the one who raised a disputing voice, rejecting the idea of two torot, and pointing to the many torot referred to in the Pentateuch. As it is stated here, the anonymous opinion, that of Torah ????(written Torah) and Torah ?? ??(oral Torah) is the accepted, assumed one while R. Akiba challenges it. If we would like to stay on the safe side we can sate that the anonymous opinion is from the early Tanaaic period. I would add and say that it might come from the generation of the Second Temple period.
The third source, the scholium to Megilat Taanit, is the most detailed one and would be the most convincing if it would not come from the Amoraic period. In the scholium to Megilat Taanit, the same verses we find in Jubilees’ description of two torot are the core of the dispute between priests and the Sages. The priests however are the Boethusians:
????? ????? ???? ??????? ?? ??? ????? ???? ??????? ?????? ????? ???? ????
The scholium describes the Boethusians as those who attempt to convince others of the validity of their halakhic tradition by dint of its being written in a book, handed down at Sinai. The Sages present a contradictory argument, that the written Torah is accompanied by oral torah, Torah?? ?? , handed down from generation to generation. I would like to suggest that the dispute described here in the scholium, is a reflection of the dispute between the Pharisees and between groups close to the Qumran community. My suggestion relies on the fact that the verses found here cited in the Sages’ mouth are the same verses cited in Jubilees, a book written a few centuries earlier.
The accumulative evidence from the three sources brings me to conclude that the claim of oral law from Sinai was found already among the Pharisees, and was adopted by the tannaim in their effort to defend their way of halakha.
I would like to explicate more the notion of the oral Torah. As I noted, the Pharisees\Tannaim’s aim was to reject the claim of authority held by the priests. In the book of Jubilees the priest are the Qumran Community. In the scholium the priests are the Boethusians. The following midrash refers to priests in general.
???? ????? ??? (??' 408)
“They shall teach Your statutes to Jacob” (Deut. 33:10): This
teaches that all decisions (horayot) can issue only from their mouths, as it
says, “Every matter of dispute or assault is subject to their ruling” (Deut.
21:5): “Dispute” (rib) refers to disputes concerning the [red]
heifer (Num. 19), disputes concerning the heifer [whose neck is broken ] (Deut.
21:1-9), disputes concerning the suspected adulteress (Num. 5:11-31). “Assault” (nega)
refers to leprosy affecting a person and leprosy affecting clothing and leprosy
As was noted by Fraade (whose translation I use here) the sages here confront Scripture’s assignment of didactic authority to the priests. The midrash does not read the two parts of the verse as synonyms but as two units that are complementary to each other: two parts with two different messages. The first part of the verse does admit that the priests have didactic authority, though it is very limited. The priests can teach ?????? - cultic laws. The midrash refers here to the laws in which the priests are assigned by the Bible a specific role (negaim –leprosy, red heifer, heifer whose neck is broken and Sotah). The second part of the verse, according to the midrash, informs us that Torah was given to Israel. Since the priests can teach mishpatim and at the same time Torah was given to Israel, we must infer that two torot were given.
At this point the midrash inserts the question of Agnitus to R. Gamliel, a strange question indeed, since it assumes that the Roman General knows what Torah is and knows that there might be more than one. I would like to propose that the one who formulated the story intended to state that also from an external authoritative point of view, the law that the people of Israel are abide by, is the oral law. Thus, the unit starts and ends with an argument against ascribing a high position to the priests, beginning with internal proof, depending on a biblical verse, and ending with an external declaration.
To what degree was the claim of oral torah transmitted at Sinai a rhetorical
device, giving the sages the authority to rule and how many ancient traditions
actually shaped the Pharisees halakhah? I do not think this question can be
answered. What we can state is that other, later midrashim, hold the claim
of an Oral Torah from Sinai, yet they also cope with the tension between this
claim and the awareness that they are developing new laws and rules. For example
the next midrash:
??????? ??? ?"? ?"?, ?? ?"?
The verse from Deuteronomy stands as a proof that in addition to – upon them - (vealeihem) the two stone tablets, very detailed learning was transmitted by speech at Sinai, for the purpose of interpreting what was written on the stone tablets. From the extra preposition found in the verb (“upon them – and upon them; all - corresponding to all; words – the words”) R. Yehoda ben Levi deduces that it is not only the halakhot that were given at Sinai, but also mishna, talmud and agadot. The verb from Ecclesiastes solves the tension between the claim of old and the awareness of new: “everything that a knowledgeable disciple will teach before his master was already said to Moses at Sinai” since “One says “Look, this is new!” His friend replies and says: “it happened long ago”.
The tension between the traditional claim of oral law from Sinai and the current
development of halakha is expressed also in the following quotation from the
At the beginning of my talk I argued that there are two claims of authority among the sages. Until this point I examined the claim that to my mind is the ancient one – the oral law\Torah from Sinai. I will proceed now to examine the other one, that which seems to be related to R. Akiba. As I said before, there is resemblance between the second claim of the Tannaic literature and the second claim of Qumran, that of ?????and?????? . In the Rabbinic version the second claim of authority states that Israel received one written Torah at Sinai, a Torah that embraces all the fields and the subjects that are to be develop later in the Sages’ world.
I tend to relate the second claim to R. Akiba since, as was shown, R. Akiba
rejects the notion of two torot:
It seems to me that the claim that the written Torah embraces the detailed
laws that are developed by the Sages might be expressed in the next Midrash:
Notice the very important statement “so too words of Torah are all one”. They are one, but at the same time they enrich many forms of learning – mikra and mishna talmud halachot and agadoth. This list here is the same one we found in the midrash from the yerushalmi we read before. There the list formed an addition to the written tablets of stone (vealeihem). Here the list is presented as one unit with the Torah. The Torah appears in many forms which are the results of a human exegetical process.
Thus, one Torah was given at Sinai, which embraces the many forms of the Sages’ learning.
If I am right, do we have any Midrash or saying that deals with delegation
of authority to the sages, a midrash or saying that is parallel to the ?????
and ?????? of Qumran. I would like to suggest the next midrash as fulfilling
“He instructed him” (Deut. 32: 10) With the ten commandments. This teaches that when [each] divine utterance [commandment] went forth from the mouth of the Holy One, blessed be He, Israel would observe it and would know how much midrash is in it, and how much halakha is in it, how many a fortiori arguments are in it, how many arguments by verbal analogy are in it.
When the divine utterance went forth from the mouth of God, Israel was instructed by God, more precisely, God caused them to understand – gave them the ability to b.y.n,, to perceive the ten commandment rightly. So Israel would observe it (mentally) and could notice that each one of the commandments includes midrash and halakha and ????? ?????? ????? ???. While God delegated the ability to learn, the learning itself is done by Israel.
The connection between R. Akiba and the second claim of authority, that of
inspired human exegesis, can be an explanation for the following known source:
Rab Judah said in the name of Rab: When Moses ascended on high he found the
Holy One, blessed be He, engaged in affixing coronets to the letters. Said
(Moses) to Him: ‘Lord of the Universe, who stays your hand? Said to him:
There will arise a man at the end of many generations, R. Akiba b. Joseph by
name, who will expound upon each tip of letter heaps and heaps of halakhot.
He (Moses) said to Him: Lord of the Universe, permit me to see him. Said (God)
to him: Turn you round. He went and sat down at the end of eight rows. Not
being able to follow their argument his strength abated, but when they came
to a certain subject and the disciples said to the master whence do you know
it and the latter replied it is a halakha given unto Moses at Sinai, he was
Moses sits at R. Akiba’s school and does not understand Akiba’s teaching. The assumption is that R. Akiba is developing, by his midrash, detailed laws that Moses never heard of. At R. Akiba time a new Torah appears. There are new laws in R. Akiba’s generations, a new system, which is however rooted in the Pentateuch. There are very few halakhot coming from the past that can not be tied to the Written text –???? ???? ????? . It is this halkha that Moses recognized and hence was comforted.
(3) The Question of Writing.
We have now reached the last part of our discussion and at this point I would
like to relate the question of authority to the question of writing. We know
that the Qumran Community did not hesitate to write down its system of Halakha.
Its claims of authority did not prevent them from writing. Furthermore, as
we saw, one claim of authority demands writing – the written book from
Sinai. We should note, however, that in Qumran the writing itself is not the
source of authority!
The verse from Deuteronomy is the basis for the Sages’ authority. It bestows authority to the sages: “You shall act in accordance with the Torah that they instruct you”. Furthermore, The phrase al-pe, here translated “in accordance with,” but derived from the word pe (mouth), is presented as a proof for the validity of an orally transmitted Torah. Employing a hermeneutical inference similar to Gzera Shava, the text concludes that the covenant (mentioned in the verse from Exodus) is also al-pi, that is orally transmitted.
Thus, Torah was given to Moses at Sinai orally – al pe - and was handed down to the people throughout the generations. We now understand that this name al-pe derives not from the mode of transmission but from the biblical verse?? ?? . There will be no ban on writing as long as the people are aware that the writing is a human act, recording what was given orally from God. Yet, more hesitation to write will arise when the claim of authority is indeed ?? ?? .
It is quite clear that the second claim of authority, that of the right and the ability to expound has nothing to do with any ban on writing. One who justifies his laws by pointing to the permit to develop drashot has no reason to avoid putting them in writing. Furthermore, he has no reason not to write down the outcome of his drasha – the halakhot.
Remembering that the second claim of authority described above is related to R. Akiba, we can now understand why the prohibition on writing is found (and only in the Bavli) in the name of R. Ishmael’s school.
A Tanna of the school of R. Ishmael taught: [It is written] These: these you may write but you may not write halakhot. R. Johanan said: God made a covenant with Israel only for the sake of that which was transmitted orally, as it says, for by the mouth of these words I have made a covenant with you and with Israel. (Gitin, 60b)