Rabbi Avraham Feld

  "Little Sister"  
 The Oral Law 

Chapter Three

THE SAGES – GIANTS OF MIND AND SPIRIT

The sages of our Oral Tradition had impeccable character; they were honest, wise, devoted, compassionate, and good hearted. Look at some of the qualities demanded of them:
[Deuteronomy 16:18] JUDGES AND OFFICERS SHALT THOU MAKE THEE IN ALL THY GATES, WHICH THE L-RD THY G-D GIVETH THEE, THROUGHOUT THY TRIBES: AND THEY SHALL JUDGE THE PEOPLE WITH JUST JUDGMENT.

[Deuteronomy 16:19] THOU SHALT NOT WREST JUDGMENT; THOU SHALT NOT RESPECT PERSONS, NEITHER TAKE A GIFT: FOR A GIFT DOTH BLIND THE EYES OFTHE WISE, AND PERVERT THE WORDS OF THE RIGHTEOUS.

[Deuteronomy 16:20] THAT WHICH IS ALTOGETHER JUST SHALT THOU FOLLOW, THAT THOU MAYEST LIVE, AND INHERIT THE LAND WHICH THE L-RD THY G-D GIVETH THEE.

Josephus said thousands of Jews declared their readiness to be trampled upon by Roman cavalry rather then accept symbols of a man’s divinity –as ordered by Caligula. Refusing to relinquish the belief in the absolute unity of G-d, the Jewish sages in lead of the ordinary folk suffered martyrdom. As Fuerst points out in the worldwide Roman Empire it was the Jews alone who refused to pay homage to the “divinity” of Caligula. Their tenacity saved the honor of the human race. Throughout history the Rabbis have defended the Unity of G-d against pollution, be it the Gnostic or Zoroastrians who claimed a duality of the godhead, or the doctrine of three in one (Dr. J. H. Hertz).

We have profound Sinaitic principles for explaining the Torah. These principles have been listed in the name of Rabbi Yishmael son of Rabbi Elisha. Rabbi Yishmael was a colleague of Rabbi Akiva, of Israelite and convert stock. Both died martyrs’ death. If it were not for these principles we could not understand the plain meaning of Scripture. We need them to understand the clear directions of God’s will, commandments, and love.

An Eye for an Eye?

You know what they say. Where you have two Jews, you have three opinions. Yet for the next biblical study session, all Jews, at all times, scholars and laymen, understood the biblical verse to mean just one thing. We are talking about the principle of Lex Talionis (Exodus 21, Leviticus 24), none other then one of the most misunderstood concepts in the entire Bible, the legal category of an eye for an eye. Not a single disagreement exists among 2,000 saintly Rabbis of the Talmud. All agree, that in every single application or instance of injury, it means monetary compensation only. Not a single, solitary case was ever decided in any other way. If you would charge that we are changing in any way the law of the written Torah, then why did we not, long ago, change the actual written text as well? Simply because, the holy text on its own shows without a shadow of a doubt, that there is no other possible interpretation. Let me remind us that the book of Leviticus 24:22, says clearly, “You shall have one law, the stranger shall be as the citizen, for I am the L-rd your G-d.” This verse eloquently concludes a section that deals with personal injuries. If we were to say that an eye for eye calls for exact retribution, then the Torah’s requirement for one law would make no sense

What on earth would you do if a blind person blinded someone, or if a disabled person disabled someone? You could not fulfill the literal injunction of eye for eye, foot for foot! The fact is, eye for an eye, is simply a biblical classification, a divine technical legal term, for just compensation. Look throughout the entire Bible if you will; the term "tachat" means "instead of", "below", or "underneath", but it does not mean for. If the Bible wanted us to take this verse in it’s most external superficial way, it would have written ayin b’ayin, the “b “ meaning "for", and not "ayain tachat ayin" as it is actually written in the text.

Don’t forget to look at the clear prohibition of accepting money – compensation for malicious murder. “Ye shall take no ransom for the life of a murderer” (Numbers 35:31). You see, for anything less than murder, compensation is in order. You can’t take ransom for the life of a murderer, but you do take compensation for injury to bodily organs. The Torah asks for compensation that would not be accomplished by merely damaging the offender. If my eye was 20/40, and yours 20/20; if mine was the hand of a piano player and yours is not, it would not be a fair exchange. Clearly the impossibility of literal application is obvious. The language is such to convey a moral standard, namely the enormity of causing personal injury and it is as if you should lose your corresponding body part. If the Torah had only written “monetary compensation,” we might think that just as in the case of someone who kills his neighbor's animal, pays up and is then free from any other punishment, likewise one who injures another person and pays is also free from further obligation. This is not the case however. He must still ask for forgiveness, and seek atonement from the injured party (Maharal). The Torah never tires from making statements in the written text, that set moral standards. The practical application is to compensate and make good, not to create more pain and loss in the community. The actual Hebrew shows this by using a term that means to complete, make peace, make up and compensate. We mentioned earlier that the word "tachat" in the expression ‘eye for an eye,’ means "instead of", "under," or "beneath". There is a deeper level of meaning that can be gleaned from studying the exact words used in the Torah. The letters which spell the word “eye” in Hebrew are Ayin, Yod, and Nun ( עין ). These letters each come “beneath” or fall exactly behind the letters Caf, Samech and Fey. (In the order of the Hebrew alphabet Yod is directly followed by Caf, Nun is followed by Samech, and Ayin is followed by Fey).
What do Caf, Samech and Fey spell?
The three letter word for money - CeSeF(C-S-F-)!
This once again shows the literal intention of the Scriptures to be monetary compensation. This concept also applies to the Biblical phrase, ‘life for life. ’ Look at the parallel verse: [Leviticus 24:18] – “HE THAT SMITHETH A BEAST MORTALLY SHALL MAKE IT GOOD ‘LIFE FOR LIFE’.” Again, this simply means fair compensation, otherwise anyone who killed an animal would have to forfeit his life in return. To take away all doubt as to the intent of this technical legal term ‘life for life,’ the same paragraph [Leviticus 24:21] says, “HE THAT KILLS A BEAST SHALL MAKE IT GOOD; AND HE THAT MURDERED A MAN SHALL BE PUT TO DEATH.”
This concept is paraphrased clearly by the following source (Torah Kohanim Baba Kama 84):
“I might think that if a man blinded his fellow man, he too should be blinded, or if he cut off the hand of his fellow man, his hand should be cut off….We are therefore taught (by the juxtaposition of the verses) that damaging another’s animal is comparable to injuring one’s fellow man; just as one who damages another’s animal must pay financial compensation, so must one who injures another man.” Notice that the concept of an eye for an eye, is classified in the section of law dealing with accidental injuries. The verses preceeding the text of “eye for an eye,” deal with intentional assault. In these cases however, the Torah does not call for any exact retribution relative to the damages. Therefore, if the term 'eye for an eye' was misunderstood as being literal, we would have to conclude that according to the Torah accidental damages and injury is much worse that premeditated, intentionally inflicted injury.

The sages regard eye and tooth merely as typical examples of damages. They also list twenty-four other bodily organs that fall under the same legal classification and jurisdiction. In computing compensation, the actual damage, loss of time, cost of cure, pain, disfigurement, and embarrassment, are all taken into consideration (Hertz Pentateuch). The jist of it is, “SHALL MAKE IT GOOD, HE SHALL GIVE MONEY”, [Exodus 21:34 ].

To paraphrase Rabbi Dr. Hertz (the late Chief Rabbi of the British Empire), nothing can illustrate the difference between ancient legal systems better than the application of the law of taliation. Today the evocation of life for life, etc., is recognized as one of the far-reaching steps in human progress. It has always meant the substitution of legal due process in place of wild revenge. One eye not two, one tooth not ten, one life not a whole family. For the founders of International Law – Hugo Grotius, Jean Bodin, and John Seldan – all maintain that ‘eye for an eye’ enjoins that a fair and equitable relation must exist between the crime and the punishment, and that all citizens have merit before the law. John D. Michaelis (pioneer of Modern Bible Exegesis) said, “This rule is appropriate for free peoples, in which the poorest member has the same right as his most aristocratic assailant, the tooth of the poor peasant is as valuable as the nobleman’s, even if the peasant must bite crust while the nobleman eats cake.” Professor W.E. Allbright (a biblical archaeologist) states this as being a revolutionary concept of law. In ancient jurisprudence, men of power would pay a fine, even for the most heinous of crimes, or they would destroy the entire clan of the offender. Judaism’s ‘eye for an eye,’ set a new precedent of equal justice for all.

Laws and Legal Principles of Biblical Interpretation

"Even More So"

Come let us learn together for a while and discuss some of the principles that serve as laws of Exegesis. One of these ancient principals is as follows: an inference (conclusion) can be made from a minor premise (lenient law) to a major premise (strict law) and vice versa. This concept in Hebrew (a very precise and beautiful language) is communicated in two words: “Kal veChomer”, i.e. "Judgement from a Lenient Case Extrapolated to a More Serious One". Now say, for example, we have an act that is forbidden on a regular festival (holiday). It would then be so much more forbidden on a special stricter holiday such as The Day of Atonement (Yom Kippur). Likewise, if a certain action is permissible on Yom Kippur then so much more so should it be permitted on an ordinary festival.

"Key Words and Expressions"

Let us discuss another important rule of Exegesis. When similar words and phrases appear in different places and separate contexts it can be inferred that what is meant in one passage can clarify and be applied to the other. This rule of logic is succinctly expressed by the two Hebrew words: “Gezera Sheva”. The following enable us to see these legal concepts at work. For example, the verse fragment concerning a “Hebrew slave” [Exodus 21:2] is unclear.

“IF THOU BUY A HEBREW SERVANT, SIX YEARS HE SHALL SERVE: AND IN THE SEVENTH HE SHALL GO OUT FREE FOR NOTHING” [Exodus 21:2].
This could conceivably apply to a pagan slave owned by a Hebrew or to an Israelite slave owned by a fellow Israelite. It cannot however, apply to both. We only know that this refers to the case of a Israelite slave because of the similar phraseology used in Deuteronomy in reference to “your Hebrew brother”.

“AND IF THY BROTHER, AN HEBREW MAN, OR AN HEBREW WOMAN, BE SOLD UNTO THEE, AND SERVE THEE SIX YEARS; THEN IN THE SEVENTH YEAR THOU SHALT LET HIM GO FREE FROM THEE” [Deuteronomy 15:12 ].

This is the same case as that in Exodus 21:2 and here it clearly refers to “your brother, a Hebrew man.” Thus the two verses clarify each other.

APPLICATION OF GENERAL PRINCIPLES

Extrapolation

Another legal concept states that a general principle learned from one or two biblical verses is similarly applicable to related laws. For example:
[Deuteronomy 24:6] NO MAN SHALL TAKE THE NETHER OR THE UPPER MILLSTONE TO PLEDGE: FOR HE TAKETH A MAN'S LIFE TO PLEDGE.

We are told here that no man should take a hand mill or millstone [general rule] to pledge [as security for a loan/debt] for he would be taking a life [livelihood] in pledge. This Sinaitic rule of logic would dictate that generally, the just established principal applies to all similar issues. The conclusion of the Rabbis therefore, is that everything that is necessary for the preparation of food is forbidden to be used as a pledge.

The Torah says that a man cannot marry the daughter of his mother by another father i.e. maternal half sister (Leviticus 18:9, Deuteronomy 27:22). There is also a law against marrying the sister of your father (Leviticus 18:12). The general principle by extrapolation demands that the law against marrying your maternal half sister applies to the maternal half sister of your father.

The Torah says that if a man strikes the eye or knocks out the tooth of his slave he must let him go free (Exodus 21:27). Based on the above principle of application to related cases the Rabbis concluded whenever any part of the body of a slave is mutilated by the master then the slave must be set free.

Contextual Harmonization

Now let us examine one more of the more simple rules of Biblical exposition. Two similar passages that contradict one another can be harmonized by a third passage that reconciles the first two. In Genesis 22:2, Abraham is told to offer up his son. God however had already told Abraham that his son Isaac would become a great nation (Genesis 21:12). The answer is that the command was to place Isaac as an offering but not to slaughter him. The literal Hebrew said merely to raise him up, and then Avraham was ordered to lower him down. Thus there was no contradiction.

In Exodus 13:6, the Israelites are told to eat unleavened bread for seven days whereas in another verse they are told six days: [Deuteronomy 16:8] SIX DAYS THOU SHALT EAT UNLEAVENED BREAD: AND ON THE SEVENTH DAY SHALL BE A SOLEMN ASSEMBLY TO THE L-RD THY G-D: THOU SHALT DO NO WORK THEREIN.

To solve the problem of this apparent contradiction all that is needed is the application of the exegetical principal stated earlier (a third verse can reconcile two apparently contradictory verses). Here is the reconciliatory third verse:

[Leviticus 23:14] AND YE SHALL EAT NEITHER BREAD, NOR PARCHED CORN, NOR GREEN EARS, UNTIL THE SELFSAME DAY THAT YE HAVE BROUGHT AN OFFERING UNTO YOUR G-D: IT SHALL BE A STATUTE FOR EVER THROUGHOUT YOUR GENERATIONS IN ALL YOUR DWELLINGS.

[Leviticus 23:15] AND YE SHALL COUNT UNTO YOU FROM THE MORROW AFTER THE SABBATH, FROM THE DAY THAT YE BROUGHT THE SHEAF OF THE WAVE OFFERING; SEVEN SABBATHS SHALL BE COMPLETE:

This is the law of new produce. It was forbidden to eat new grain of the season until the second day of Passover (called “Sabbath” on the verse Leviticus 23:15 above) when the Omer barley offering was sacrificed. Here lies the reconciliation between the apparent contradiction regarding the observance of seven days rather than six days. If the unleavened bread (matzah) was made of new grain it could only be eaten on six days of the Passover week. Therefore the verse in Exodus 13:6 about eating unleavened bread for six days refers to unleavened bread made from new grain.

In another example of the same principle can be applied to the following. In Exodus 19:20 the verse states that G-d came down:
[Exodus 19:20] AND THE L-RD CAME DOWN UPON MOUNT SINAI , ON THE TOP OF THE MOUNT: AND THE L-RD CALLED MOSES UP TO THE TOP OF THE MOUNT; AND MOSES WENT UP.

In Exodus 20:22 however, it says that G-d spoke from heaven:

[Exodus 20:22] AND THE L-RD SAID UNTO MOSES, THUS THOU SHALT SAY UNTO THE CHILDREN OF ISRAEL, YE HAVE SEEN THAT I HAVE TALKED WITH YOU FROM HEAVEN.

Deuteronomy makes peace between the two versions by explaining that out of heaven did He make his voice heard in order to take you under the bond of His discipline, and then on the earth, He let be seen his great fire from the midst of which you heard His words. Here is the conciliatory verse:

[Deuteronomy 4:36] OUT OF HEAVEN HE MADE THEE TO HEAR HIS VOICE, THAT HE MIGHT INSTRUCT THEE: AND UPON EARTH HE SHEWED THEE HIS GREAT FIRE; AND THOU HEARDEST HIS WORDS OUT OF THE MIDST OF THE FIRE.

These are but a few simple examples of how the Written Torah is predicated on the logical rules of exegesis contained in the Oral Torah. The same Oral Torah also explains how its rules are to be utilized. No one has authority to use these principles in just any old way.

The Oral Torah saves us from gross violation of G-d’s true intentions. For example, the true understanding and practical literal application of the concept “eye for an eye” is equal and fair monetary compensation. Dr. Travers Herford in his comprehensive book Talmud and Apocrypha explained that the concept of an eye for an eye was metaphorical, and such a punishment was never inflicted. This policy is clearly felt, and understood by any student with a sensitive understanding of the Torah and its texts as a whole. Only through the guidance of the Oral Tradition can this sensitivity be protected and nurtured.

The Written Torah would be comparable to hard earth and all the fruit and vegetables from which it grows, are comparable to the Oral Torah. The Written law appears fixed, rigid, unchanging. The Oral Law is moving, alive, dynamic, and flexible. It has the potential to categorize, define, analyze, adjust, and to apply the Torah’s principles to each new generation. The Written Law is similar to the magnificent skeleton of the human body. The Oral Tradition fills out the body, gives skin, eyes, and hair-coloring, personality and healthy body systems. The Oral and written tradition together is what makes the Hebrew people and their Bible together the longest living faith. It exemplifies the covenant that is in a continual state of renewal and rejuvenation. The purpose of the tension inspired by dynamic ongoing debate is to reveal G-d’s will, desires and directives. Thus is depicted the excitement of the ongoing revelations and dialogue between G-d and Israel .

There is much evidence for the antiquity of the Oral Tradition. A Mishna in Negaim occupies itself with a person afflicted by "Tsarat" [Translated as "leprosy" but referring to a special spiritually-generated type of disease that broke out before the monumental revelation at Sinai.] The Misha lays down the law that in such a case those particular signs of "leprosy" did not make a person ritually unclean even after the revelation at Sinai.

We have laws in the Mishna which only make sense and were relevant to the times before the Land was conquered and settlement commenced. One such example is the question of inheritance in the case of the daughters of Zelophehad from the Tribe of Manasseh (Numbers 27:1). The Mishna said they had rights to the portion of both their father and grandfather. [The land was split up according to the families that went out of Egypt – upon their death their immediate descendants – usually sons- inherited their portions.] This is Oral Law at the very beginning of Israelite History. Another example is the prohibition of orlah (which limits the use of trees before their fifth year, Leviticus 19:24) and how it influenced the Israelite settlers. The Mishna decreed that in the case of the already planted (by the Caananites) trees encountered by the first Israeli settlers, the law did not apply.

Another interesting example was the arguments and debates about the six cities of refuge where accidental manslayers could stay and be rehabilitated, safe from the harm of retribution and revenge (Numbers chapter 35). The six cities were divided such that there were three on each side of the Jordan River. The Mishna provided necessary details of instruction, such as when the status of refuge came into effect. Even though three cities were already set up on the east side in the time of Moses they only went into operation when all the six cities had been established (Makot 3b).

As with the example of an eye for an eye all of our important institutions assume the existence of an Oral Torah. The written law never stood alone. It was always accompanied and elucidated by the Oral Torah. This does not require a leap of faith but merely looking over the Torah one is immediately struck with the absolute necessity for the Oral Law.

We see how the Oral Teaching was delivered, functioning, and cleaning up issues from the dawn of Jewish history. Thus the Oral Tradition clarifies difficulties in understanding and implementing the Biblical words from the earliest times of manhood. The Oral Law would not need to legislate and enact laws that applied to situations that were not in existence. No one would need a legal enactment for folk with leprosy even before the Torah was revealed except for the real people and their families immediately affected at that time. We see that the teachings which came to us from the Mishna of the Sages have identical date and origin with that which is derived by interpretation of the Scriptural word. All is given by the One G-d and communicated by the one same Prophet Moses. Moses, and thereafter the Elders, Prophets, Sages, down to our own times. The principles by which the sages in future generations deduced the laws applicable to any generation (Sifra, Behar, Exodus Rabah 41).
Rabbi Akiva asks, “Did Moses learn the whole Torah?” To which he replies, “NO.” G-d only needed to teach him the principles.

 

Join the Brit-Am E-Mail Discussion Group


Publications

Chapter Four
LAWS AND LEGAL PRINCIPLES OF
BIBLICAL INTERPRETATION

Home