Lo Bashamayim Hi

Parshat Nitzavim

This week we will look at a sequence of verses in the Torah that conflict significantly with the way that Judaism is practiced today. After that, we will look at the specific difference, as exemplified by the Oral Law and the development of Halacha, and how that came to be.


Lo Bashamayim Hi

The verse in question includes the words, lo bashamayim hi, it's not in heaven. It's one of the more stark declarations of the Torah about how it expects people to read its words. The following verses appear as a standalone section, set off on either side by section breaks, the Torah's equivalent to paragraph markers. Let's see what it says (Deut 30:11-14)

11 For this commandment which I command thee this day, it is not too hard for thee, neither is it far off. 12 It is not in heaven, that thou shouldest say: 'Who shall go up for us to heaven, and bring it unto us, and make us to hear it, that we may do it?' 13 Neither is it beyond the sea, that thou shouldest say: 'Who shall go over the sea for us, and bring it unto us, and make us to hear it, that we may do it?' 14 But the word is very nigh unto thee, in thy mouth, and in thy heart, that thou mayest do it.

The 16th century Rabbi, Sforno gives a succinct explanation of these verses which, in my opinion hits at the basic meaning.  He says (my translation):

It is not in heaven: You will not need to go to a prophet in order to figure out what to do. It is not beyond the sea: You will not need the wise men of the generation, who are far away from you, to explain it to you.

We do not Poskin from the Torah
 
The verses and the explanation by Sforno are ironic because that opinion is flatly contradicted by how Orthodox Judaism is practiced today. You might think that if you had a halachic question, you could just crack open a Torah and find the relevant verse and decide on a ruling. Now granted, everything isn't in the Torah, but plenty of laws are. Like, what should you do if someone blinds someone else or if you suspect your wife of cheating.

If you ask any Orthodox Jew why the practice of Jewish religion seems to be different than what it says in the Torah, they may reply with the title of this section, "we do not poskin (make halachic rulings) from the Torah." Rather, to properly understand the Torah, you need to see how its interpreted in the Mishnah and Gemara, a much larger set of legal laws written in a purposefully obtuse manner.

But wait, that's not good enough either. Truthfully, Judaism doesn't poskin from the Gemara either, rather the laws from today are based in the Gemara (which itself is creatively based in the Torah), but the actual interpretation is that from various later authors, the most prominent in Ashkenazi practice being the 14th century Shulchan Aruch. Of course for many questions that's not good enough either and you need to know how it was interpreted throughout the years, keeping track of the various halachic rulings until the present day.

Is this possible for every individual? No, it is obviously not. What needs to be done? The answer given in any Orthodox circle would be to "ask your local Orthodox Rabbi" because only someone with specific theological training is capable of tracing an opinion back through two millennia of Jewish laws to make a ruling on halachic matters (and of course, they must also be male). So, in actuality, God's commandments happen to be very far from most of us, and we're required to completely trust the "wise men of the generation" rather than the Torah to make decisions on what God actually desires.

Now, I'd like to understand how this all came about. How the Judaism that is practice today bears little resemblance to the law of the Torah. To do this, we'll need to recap a bit of history. Afterwards, we'll talk about the big conceit of Rabbinic Judaism.

Sadducees and Pharisees; Karaites and Rabbinic Judaism

Anyone looking at Judaism today will see many distinct groups some close together some far apart. Most of the right-wing sects of Judaism (from Modern Orthodox to Haredim) often describe themselves as representing the true Judaism, the religion that stretched all the way back to Moshe (Moses) at Har Sinai (Mount Sinai). While it's true that the religion is old, it is not actually that old. In fact, at the time that the definitive texts of Rabbinic Judaism, the Mishnah and the Gemara were being written, the Rabbis responsible for them were one of several sects. We've talked a bit on some of these different sects when we discussed Matrilineal Descent, so we don't need to rehash old ground. However, it's important to mention these specific sects, the Sadducees, the Pharisees.

The Sadducees and the Pharisees were often rivals during the second temple period. Of the main theological disputes between the Sadducees and the Pharisees were that the Sadducees did not believe in an afterlife, no divine rewards or punishments, no angels or demons, and no resurrection of the dead.

After the second temple period the Pharisees and Sadducees died out, but they each had heirs, if not direct, at least in the allegorical sense. The Pharisees gave birth to the Rabbinic Judaism that we know today, while the Sadducees yielded to the Karaites. If anything the divide deepened here. The Karaites saw the Rabbis adding new things to Judaism and changing the religion in ways that they were not comfortable with. They saw the Rabbis corrupting Judaism with outside influences, not only the eschatological stuff that they imported from Zoroastrianism, but also by inventing new holidays like Hannukah which appeared to include Roman pagan influences, or implementing a Seder on Passover with practices that seem Greek in origin. When an Orthodox Jew today criticizes a Reform Jew for including something like a "Hannukah Bush" into their holiday celebration, one can very easily envision the same type of criticism appearing 1800 years ago, except now it is the Rabbis that are incorporating the non-Jewish elements, the Hannukah candles, into their practice.

The Judaism described by the Rabbis was very different than the Judaism practiced in the Second temple period (forget about the earlier forms in the Torah!). Gone were sacrifices, deemed impossible without a clear divinely sanctioned temple requiring the arrival of a Messiah. Replacing it were community prayers, with their new lists of ordinances. The laws of Kashrut gained the defining features of prohibiting milk and meat together along with specific slaughtering requirements,  innovations that the Karaites saw as unfounded. New holidays appeared, Hannukah and Purim, as well as public fast days like Tisha B'av and the four minor fasts (edit: as pointed out in the comments, Tisha B'av is mentioned in Zechariah 8:19. Tzom Esther and Tzom Gedaliah, however, have no biblical commandment).

The list of differences is very large but we should get to the root of it. The big question is, "How did the Rabbis claim the authority to institute these changes?" Let's look at that.

The Oral Torah

The source of Rabbinical claimed authority was the Torah She'baal Peh, the "Oral Torah." According to the Rabbis, the Torah wasn't the only thing told by God to Moshe on Har Sinai. In addition, God gave a whole litany of extra commandments along with an injunction to not write these commandments down but to transmit them orally (see BT Temura 14b). These commandments were passed down all the way until the Rabbis of the Mishnah, who then fearing that the chain would be broken, began to codify them. Thus, the "innovations" they were implementing, such as not eating milk and meat together, were really there all along. Or so they claimed. Let's see how the Rabbis staked their claim (Avot 1:1, my translation):

Moshe got the Torah from Sinai and taught it to Yehoshua (Joshua). Yehoshua taught it to the elders, the elders to the prophets. The prophets taught it to the men of the great assembly.

The Rambam summarizes the theory of the Oral Torah in the introduction to the Mishnah Torah. He says (my translation):

All the commandments that were given to Moshe at Sinai were given with their explanations, as it says (Exod 24:12) "I will give you the two tablets of stone, and the Torah and the commandments (mitzvah)." Torah is the written Torah, and "commandments" are the explanations. He commanded us to do the Torah in light of the mitzvah. And this mitzvah is the Oral Torah.

Later the Rambam gives details about how it was passed down including some humorous descriptions. Let's read some more:

Even though it was not written, Moshe taught it to his entire court and the seventy elders, and to Elazar, Pinchas and Yehoshua...And many elders learned from Yehoshua, and Eli learned from the elders and from Pinchas (making Pinchas some 300 years old), and Shmuel (Samuel) learned from Eli and his court, and David learned from Shmuel and his court. Ahiyah from Shiloh was from the people who left Egypt, he heard from Moshe and learned from David and his court (making Ahiyah some 600 years old).

Needless to say, the Karaites weren't buying this explanation. To them it looked like a power grab and a way to justify the practices of the Pharisees. Let's turn now to whether this idea of the Oral Torah is plausible and what the Tanach has to say about it.

Plausibility of the Oral Torah

The first question against the Oral Torah comes from anyone that has ever played the game of telephone. We know that things get garbled in translation. Parts may be forgotten, or misremembered. Indeed, the Rabbis at the time of the Mishnah started writing things down because they were afraid of things being forgotten. In the 1500 years before this (according to the biblical chronology) through all the periods when the Israelites were subjugated, exiled, worshiping Ba'al, etc, isn't it likely that they also went through forgetful periods? So in order for the idea of an Oral Torah to be plausible from a rational perspective, one requires some divine miracles to endow the people who are transmitting it with super-human memories. Memories which he suddenly decided to remove at the time of the Mishnaic Rabbis.

But before we even get there that let's look at what the Tanach has to say. The Torah very clearly describes Moshe setting up courts of law in the desert. Holding aside any speculation that these texts were actually written at a later date, and making the fairly radical assumption that this isn't just a description of a bog-standard judicial dispute arbitration, let's assume that this represents the beginning of the Oral Torah transition. What happens next? Well, in Yehoshua, we also see him commanding the elders and the judges (for example, Josh. 24). So far so good. Then what?

Nothing.

There is no indication that any of these courts existed during the time of the Judges, and the first two monarchies. Eli does not have a court, and neither does Shmuel. The closest we get is when we reach Shlomo (Solomon) where there is an indication that courts existed, but these courts were standard judicial courts. Whenever someone needs to know some detail or fact, like what sacrifice to offer to appease God, they don't go to a transmitter of the Oral Torah, they go directly to a prophet who asks God directly for an answer. Why even would you need an Oral Court transmission if you had a direct line to God?

There is no discussion of anything resembling an oral court throughout all the histories in Shoftim (Judges), Shmuel and Melachim (Kings). Neither is there anything in the description of Divrei HaYamim (Chronicles). Even worse, some of the specific individuals named by the Rambam, Amos, Hoshea, Yishayahu (Isaiah), Yirmiyahu (Jeremiah) and Ezra make no mention of it. The Rambam has one prophet specifically learning from another, but none of them ever even talk about interacting with each other!

When we get to the Exile and the Second Temple Period, we still don't see any indication of it. There is no description of it in any of the apocryphal writings like Jubilees or Enoch. The first time we hear about this Oral Torah idea is exactly when the Talmudic Rabbis use it to justify their practices! Any perusal through Tanach contradicts the Rambam's speculation for transmission and makes his chain perfectly laughable. No wonder the Karaites didn't accept the explanation.

Conclusion

Not only is the Rabbinic description of the Oral Torah implausible. It also blatantly contradicts the idea behind lo bashamayim hi. The true understanding of the Torah is no longer visible for anyone to read in an actual document for the first 1500 years of Jewish history, rather the true explanation is restricted to a few prominent individuals who were carrying the direct line. Or so claims Rabbinic Judaism.

Perhaps you might think that the authors of the Talmud were hewing closer to the concept of lo bashamayim hi, and you can make that argument for the Mishnah perhaps, but you certainly cannot for the Gemara, which is written in an obscure style and completely haphazardly arranged so that it is impossible to find a specific ruling without reading the whole thing. And today, if you have a particularly vexing halachic question, you may very well need to travel "across the sea" to get an answer.