Law, Authority and Writing
Cana Werman

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 create

During the Second Temple Period only the priests, the elite of Jerusalem and the forefathers of the Sadducees and the Qumranites, had an adequate answer to this question – they. The priests devoted themselves to explicating and interpreting the Torah – the five books of Moses edited a few centuries earlier – and they derived their authority from their position as leaders of both the spiritual and the political life of the land. Furthermore, the text that they studied, the Pentatuech, not only gave them the right but enjoined them to learn it – “They shall teach Your statutes to Jacob and Your Torah to Israel”. What Prof. Kugel calls “early biblical interpretation,” and what Prof. Kister coined the “common biblical heritage” is apparently the fruit of this elite community’s learning.

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 seems to me that the Boethusians’s rule regarding the date of the waving of the Omer (and hence also regarding the date of the Feast of Weeks) is another example of the attitude of the priestly halakha toward the biblical text. We do not know whether the Boethusians and the Sadducees held the same opinion in this case (both the Mishna and the Tosefta mention Boethusians when relating this dispute, while the Sadducees are not mentioned). However the date the Boethusians chose, Sunday, is the result of the priestly halakha that tries to solve contradictions and to create a coherent system. The dispute between the Boethusians and the Pharisees (who held that the morrow of the first day of the Feast of Matzoth is the right date of the Omer harvest) apparently derives from the double commandments in the Torah. In Leviticus (23:15-16) the rule is to count 7 Sabbatical weeks, starting Sunday: “and from the day on which you bring the sheaf of elevation offering the day after the Shabbat, you shall count off seven Shabbats, they must be complete”. In Deuteronomy (16: 9-10 see also: Exod. 34:22; Num. 28:26) the law speaks of ordinary weekly units: “You shall count off seven weeks. Start to count the seven weeks when the sickle is first put to the standing grain.” The ancient Israelite tradition apparently did not demand Sabbatical weeks. According to the book of Joshua the Israelites started eating the new grain on the day after the Passover offering regardless of its day of the week (5:11). The Boethusians, ignoring the ancient tradition, chose the date that is in accordance with both laws – that of Deuteronomy and that of Leviticus. Beginning the count on Sunday suits the requirement of both Sabbatical week units and ordinary weekly units.

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).

The second claim of authority, divinely-inspired human exegetical process, is found in the Damascus Document. As was shown by A. Shemesh and myself, in the Damascus Document we find the division of the commandments into revealed ones, explicitly found in the Torah, and “hidden” ones, which are interpretations and expansions revealed only to the members of the community. The Damascus Document describes the process by which the hidden things are revealed via a homiletical interpretation of Num 21:18, the song of the well, and by citing the verse from Isaiah regarding a smith. The community leader, the Interpreter of the Torah has been sent by God to create the appropriate tools to interpret the Torah. These tools were bequeathed, in turn, by the Interpreter to the community’s members. The author of the Damascus Document depicts halakhic creativity as a combination of human activity and divine inspiration.

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.

There are three sources which are important to our discussion: One from the second Temple period; one from the Tannaic period and one from the early Amoraic period.

The first source is Josephus. Indeed in most of his writing Josephus, while relating to the Pharisees, mentions the term ancestral tradition pa??
t?~? p?esß?t???? (?ata` t?`? pat??a? pa??d?s??) which the Pharisees abide by. However, in one place (Ant. 18.12) he uses the term logos. The Pharisees follow the laws which the logos declare as good and handed them down for later generations. I am aware of the many meanings of the term logos. A possible one, that does fit here, is speech, word. What the Pharisees perceived as committed to is the law passed down from one generation to the other by speech.

As to the source from the Tannaic period. In the Sifra there is a dispute between an anonymous voice and between R. Akiba:
???? ??????? (??? ?"? [?? ?? ??? ?? ????? 31]:
" ??? ?????? ???????? ???????" (????? ?? ??) ???? ???? ????? ????? ??? ??????
??? ???? ???? ?? ??. ??? ??? ?????: ??? ??? ????? ??? ??? ??????? ???? ?????
???? ????? ??? ??????, "??? ???? ?????", "??? ???? ?????", "???
???? ????", "??? ???? ??? ??????", "??? ????? ??? ?? ????
“ These are the laws, the statutes and the instructions” (torot) (Lev. 26:46) this teaches (us) that two torot were given to Israel, one in writing and one oral. R. Akiba said›: Did Israel have two torot? Were not many torot given to Israel: “This is the Torah for the offering up… (Lev. 6:2); “Now this is the Torah for the grain-gift” (Lev. 6:7); “Now this is the Torah for the Asham-offering” (Lev. 7:1); “Now this is the Torah for the slaughter-offering of Shalom” (Lev. 7:11). “This is the Torah – a human who dies in (his) tent” (Num. 19:14).

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:

????? ????? ???? ??????? ?? ??? ????? ???? ??????? ?????? ????? ???? ????
???? ?????? ?? ????. ???? ??? ????? ???? ??? ???? "?? ?? ?????? ???? ????
??? ???? ??? ?????" (???? ?? ??), "?? ?? ????? ??? ?????" (??'
?? ??) ???', ???? ???? ?????? ????. ??? ???…???? ??? ????? (????????):
???? ??? ???? "?????? ?????? ??? ????? ???????" (??' ?? ??) ????? "????
???? ??? ?? ????? ???? ????? ?? ??? ????? ???? ?????" (??' ?? ??) : "?????" – ??
????, "???? ?????" – ??? ?????. (??? ?? ????????, ?????? ???,
??' 35-36).
One the Tenth of Tammuz ??? ????? was annulled and removed. For the Boethusians would write the laws in a book, so that when a person asks, they show him [the answer] in the book. The Sages said to them: Has it not been said already [in Scripture]: ‘…for in accordance with these words I make with you a covenant and with Israel’ [Exod. 34:27]; ‘in accordance with the Torah that they shall teach you etc.’ [Deut. 17:11]--implying that it is forbidden to write [these laws] in a book. Another interpretation:…The Sages said to them: Has it not been said already [in Scripture]: ‘the Torah and the Commandment which I have written down to instruct them’ [Exod. 24:12], and it is further written, ‘Therefore, write down this poem and teach it to the people of Israel; put it in their mouths’ [Deut. 31:19]? [That is to say]: ‘teach it’--that is the Written Law, ‘put it in their mouths’--these are the halakhot [the Oral Law]. [MS. Oxford, Noam edition, 35-36]

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 affecting houses.
“ Your instruction (your torah) to Israel” (Deut. 33:10): This teaches that two torot were given to Israel, one oral and one written. Agnitus the General once asked Rabban Gamliel: How many torot were given to Israel? He replied: Two, one oral and one written.

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:

??????? ??? ?"? ?"?, ?? ?"?
?' ????? ?? ??? ???: "???? ?' ??? ?? ??? ????? ?????? ?????? ????? ?????
?????? ??? ?????? ??? ??? ?' ???? ??? ???? ??? ???? ????" (??' ? ?); "??????
??? ??????" ????? ??????, ?? ???, ????? ?????? – ???? ?????; ?????
[????? ??????]; ?? ?? ?????? ???? ???? ?????? ???? ???, ??? ???? ?? ???? ?????.
?? ????? “?? ??? ????? ?? ??? ??? ??? ??? ???????" (???? ? ?)– ???
????: ??? ?? ??? ???; ????? ???? ????? ??: ??? ??? ???????.
R. Yehoshuah the son of Levi said: “But God gave to me the two tablets of stone, written by the finger of God, and upon them, corresponding to all the words that God spoke with you on the mountain, from the midst of the fire, on the day of the Assembly” (Deut. 9: 10). “and upon them, corresponding to all the words” upon them – and upon them; all - corresponding to all; words – the words: mikrah and mishnah; talmud halakhot and agadot; everything that a knowledgeable disciple will teach before of his master was already said to Moses at Sinai. What is the reason? “Sometime there is a phenomenon of which they say, Look, this is new! – it happened long ago” (Eccl. 1:10). One says “Look, this is new!” His friend replies and says: “it happened long ago”.

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 Tosefta:
?????? ???? ?"? ?"?? (??' 194-195, ?? ?? ????? ?' ???):
" '???? ????? ???????? ???????? ??????" (???? ?? ??) - ?? ????? ?? ????? ?? ???? ????? ???? ????? ?? ???? ???? ???? ???? ????? ????? "?? ???? ???" (???? ? ??) ???'.
?? ?? ????? ?? ??????, ???? ?? ?? ???? ????? ????? ????: "????????".
" ??????" – ?? ????? ??? ???? ?? ???? ???? ???? ?????.
" ???? ??????" – ???? ??????? ??????? ?????? ?????? ??????? ?? ??? ??? ??? ???? ????, ?? ??? ?????? ??? ???? ??????.
" ???? ????? ???" – ?? ??? ????, ???? ??? ????, ???? ?? ?????? ???? ??? ????

“ The saying of the wise are like goads, and like nails firmly planted” (Eccl. 12:11). Just as this goad leads the cow to bring life to the world, so the words of Torah are life for the world, as it is said: “it is a tree of life” (Prov. 3:18)
Or might one propose: just as goads are movable, so also are the words of Torah? Scripture says: “and like nails”
“ firmly planted” just as a plant flourishes and grows, so the words of Torah flourish and grow.
“ codifiers“ these are those who enter and come into session and sit groups by groups, ruling for the unclean ‘unclean’, and for the clean ‘clean’ for the unclean in its place and for the clean in its place.
“ They have been given by one Shepherd” one God made them, one Provider gave them, the Lord of all deeds blessed be He has spoken them.

As was pointed out by Naeh, this verse from Ecclesiastes is the one required for the sages’ claim. There is no another conjunction in the whole bible where the words of the sages are tied together with the giving of the torah by one Shepherd. What is important for our discussion is that the words of the sages are both steadfast like nails and flourish and grow like a plant. Furthermore, the flourishing words of the sages were given by the shepherd, by God. The dialectic between the claim that everything was given in the past and that there is continuity of creativity in the Sages’ world is laid out and is not solved.

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:
???? ??????? (??? ?"? [?? ?? ??? ?? ????? 31]:
" ??? ?????? ???????? ???????" (????? ?? ??) – ???? ???? ????? ?????
??? ??????, ??? ???? ???? ?? ??. ??? ??? ?????: ??? ??? ????? ??? ??? ???????
???? ????? ???? ????? ??? ??????, "??? ???? ?????" (????? ? ?), "???
???? ?????" (????? ? ? ), "??? ???? ????" (????? ? ?), "???
???? ??? ??????" (????? ? ??), "??? ????? ??? ?? ???? ????" (?????
?? ??).
“ These are the laws, the statutes and the instructions (torot)” (Lev. 26:46) this teaches (us) that two torot were given to Israel, one in writing and one oral. R. Akiba said: Did Israel have two torot? Were not many torot given to Israel: “This is the Torah for the offering up… (Lev. 6:2); “Now this is the Torah for the grain-gift” (Lev. 6:7); “Now this is the Torah for the Asham-offering” (Lev. 7:1); “Now this is the Torah for the slaughter-offering of Shalom” (Lev. 7:11). “This is the Torah – a human who dies in (his) tent” (Num. 19:14).

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:

???? ????? ?? (??' 339)
??? ??? "???? ???? ????" (??' ?? ?) ?? ??? ?? ???? ?? ??????? ?????
??? ?????? ??? ??? ???? ??? ?? ???? – ???? ??? ?? ???? ???? ??? ??
???? ????? ??? ?? ????. ?? ???? ???? ???? ???, ?? ?? ???? ????? ????? ?????
Another Interpretation of “may my discourse come down as rain” (Deut. 32.2): Just as rain falls on the trees and infuses each type with its distinctive flavor – the grapevine with its flavor, the olive tree with its flavor, the fig tree with its flavor – so too words of Torah are all one, but they comprise miqra and mishna, midrash, halakhot and haggadot .

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 this function
???? ????? ????? ??? (??' 355):
???????" (??' ?? ?) ????? ???????. ???? ????? ????? ???? ??? ???"?
??? ????? ??????? ??, ??????? ??? ???? ?? ?? ???? ???? ?? ?? ???? ????? ???????
?? ?? ???? ?????? ???? ?? ??.

“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 comforted.
Thereupon he returned to the Holy One Blessed be He and said: Lord of the Universe, you have such a man and you give the Torah by me? He said: Be silent, thus it has seemed good to me. He (Moses) said to him: Lord of the Universe, you had showed me his Torah, show me his reward. He said: Turn you round. Moses turned and saw them weighing out his flesh at the market-stalls. He said to Him: Lord of the Universe, is such Torah and such its reward? He replied: Be silent, so it seemed good to me.

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!

On the Tannaic\ Pharisees side the issue is more complex. From the scholium cited above we can learn about the source of the term torah-al-pe. Note that in the first argument, the Boethusians write laws in a book, which they show, then, to any person requesting a legal ruling. In other words, though they themselves wrote the book, the authority is vested in the book itself, being given at Sinai. The sages reject this written book, denying its authority to validate legal rulings, claiming that the proper interpretation of the Torah was transmitted orally. In their answer, they quote two verses: “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”; “You shall act in accordance with the Torah that they instruct you and by the ruling that they tell you; you must not deviate from the verdict that they announce to you either to the right or to the left” (Deut. 17:11).

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)