Is the Talmud from Sinai?

A good friend recently confided in me that they were considering leaving Orthodoxy for Conservative Judaism. When I asked why, they responded that they were bothered by the idea that God cares about every detail of Halakhah. If that were the case, the Mishnah and Talmud surely would not be filled with so many debates.

I actually know more people who have left Orthodoxy for this sort of reason than emotional trauma or the like. Some simply can’t believe in a God who cares whether they wash their hands in the morning or which blessing they say on chocolate. In fact, I remember asking a rabbi in yeshiva how much of the Talmud came directly from God and feeling disappointed when he answered, “all of it!”

It’s for that reason that I was so appreciative of Rabbi Shmul Phillips’ Talmud Reclaimed: An Ancient Text in the Modern Era (Mosaica Press, 2023). Drawing on traditional and academic sources, R. Phillips presents a rational way for modern Jews (especially those “intimidated by the apparent chaos of the Talmudic texts, offended by what he or she considers to be its outmoded social values, and deterred by the intense study of antiquated and inapplicable laws”) to understand the Oral Torah.

At the core of R. Phillips’ argument is a Maimonidean “two-tiered” system. We can understand this by looking at the example of celebrating Sukkot:

Each of the 613 commandments, writes Rambam, was taught by God to Moshe - and was transmitted by Moshe to the nation - along with its basic explanation and core details. By way of example, Rambam writes that when the commandment, “In sukkot you shall dwell for seven days,” was taught, certain key definitions and components of the commandment were clarified. These included the basic structural requirements of a sukkah, the scope of the obligation to “dwell” in it, and which categories of people would be bound to do so. On the basis of these received core teachings, the Sages understood and defined the commandment of sukkah as representing a temporary dwelling place - and therefore limited its height of twenty amot. Their attempts to explain and apply this concept of a temporary dwelling place paved the way for further Talmudic deliberations regarding different-shaped sukkot, as well as the rules which govern when dwelling in a sukkah is deemed excessively uncomfortable due to rain. Since these details were fixed by a later court, this means that they are frequently the subject of dispute, with Sages advancing competing formulations as to the most appropriate form of legislation. Even once the court has determined how such legal details should be decided, the matter remains open for a future court to revisit, thus ensuring the ongoing dynamism of the halakhic process.

This allows for a divine core while many specific details are man-made and thus open to re-evaluation as time goes by. Unfortunately, the way time went by led to this process freezing:

While fixing the Oral Tradition in the set authoritative texts of the Mishnah and Talmud was seen as necessary in the context of persecution, dispersal, and loss of Torah knowledge, it came at an exceedingly high cost. One of the primary intended functions and benefits of the two-tiered halakhic system was the maintaining of an immutable core to each commandment, based on what had been communicated to Moshe. This core, while remaining constant, was to be complemented by a measure of flexibility and human input with regard to the determination of finer details. Once this Oral Torah was confined within a fixed text, the scope for subsequent generations to employ any legislative creativity was effectively neutered.

This, however, is not the end of the story. R. Phillips notes that a future Sanhedrin can one day arise and re-examine many Talmudic debates in light of future realities. Furthermore, the study of these texts became the basis of Halakhah as it evolved in different directions. The differing methodologies of Ashkenaz and Sepharad lead to different approaches to and applications of Talmudic teachings. As R. Phillips writes,

It is striking to take a step back and recognize the interpretive gulf which separated the strict, transmitted methodology of the Rambam, Rif, and their Geonic tradition on the one hand and the more flexible and innovative attempts by the Tosafists to combine and reconcile Talmudic sources on the other… While the Tosafists challenged the previously accepted limits of post-Talmudic legal authority, Rabbi Yosef Karo went further still with his willingness to introduce Kabbalistic insights into the halakhic process.

R. Phillips’ framework places the above approaches on a single spectrum, even including modern academic approaches (lately popularized in books like Joshua Kulp and Jason Rogoff’s Reconstructing the Talmud series or Ari Bergmann’s various lectures on the subject). While not endorsing the speculation that can come with some academic methods, R. Phillips writes that “areas of scholarly exploration, such as those which examine the accuracy of manuscripts and the clarification of crucial Talmudic terms on the basis of recent archeological knowledge, can contribute to and greatly enhance the world of traditional study” and even that “modern yeshiva scholars could also gain from adding certain modern techniques to their armory when analyzing the Talmud.”

Just as various laws find their source in the Written Torah, so do various aspects of Jewish theology. The Rambam’s methodology even accounts for the differences in articulation between his Mishneh Torah and various other writings. Scholars like Rabbi Dr. Joshua Berman and others have noted that Rambam’s writings elsewhere are more theologically restrictive than in his halakhic code. R. Phillips explains that this is because the halakhic definitions “contain what the Rambam understood to be the undisputed transmitted core of each article of faith” while his other writings reflected personal positions. A useful case study is the Rambam’s discussions of prophecy:

Principles 6 and 7 contain lengthy elucidations which are designed to make them more easily understood and acceptable to those sharing Rambam’s frame of reference. In the process of doing so, Rambam adds to the concise core beliefs contained in the Mishnah and Hilchot Teshuvah formulations. This additional material includes explanations of how people can train their minds and refine their characters until their active intellect can connect and receive information from the “Active Intellect” which he identifies with angels. Moshe’s unique prophecy was, he explains, a wholly different process, since Moshe succeeded in refining and training himself to the extent that he actually achieved the intellectual status of an angel. this allowed him to “speak with God” without any angelic intermediary, while wide awake and in full possession of his faculties. Crucially, this meant that Moshe could perceive God’s will with an unrivaled degree of clarity.

None of this detailed elucidation is to be found in the Talmudic sources, and none of it therefore is granted by Hilchot Teshuvah the status of a necessary core belief, without which a person would be legally deemed a heretic. However, in his clarification of the principles of faith to those who shared his Aristotelian philosophical milieu, Rambam considered further explanatory details to be necessary. Without them, he did not think that belief in prophecy and, by extension, in the divinity of the Torah, could meaningfully be professed.

Across the board is a fascinating pattern: “while the added details and beliefs contained within the Thirteen Principles were sometimes debated and disputed, Rambam’s core Hilchot Teshuvah formulation of heresy is never challenged.”

One may assume, based on these selections, that Talmud Reclaimed would be controversial in Orthodox circles. It’s approbations from Rabbis Yitzchak Berkovits, Yitzchak Breitowitz, Joseph Dweck, Zev Leff, and Professor Chaim Saimon, however, show that it is acceptable within a very broad range of Jewish philosophies.

One finds a seemingly similar approach in Rav Hershel Schachter’s recent Divrei Sofrim: The Transmission of Torah Shebe’al Peh (Koren, 2024). Like R. Philips, Rav Schachter divides the Oral Torah into five categories based on the Rambam:

1. Interpretations received through Moshe that were transmitted by him directly but are not explicitly obvious from the Written Torah.

2. Laws taught to Moshe on Har Sinai that have no basis at all in the Written Torah

3. Principles of Extrapolation

4. Rabbinic Safeguards (gezeirot)

5. Rabbinic Enactments (takkanot)

Rav Schachter writes that certain other ways of attempting to learn out Halakhah should be avoided. For example, “gematria is not among the middos shehaTorah nidreshes bahen, and is not the source for any matter in halakhah of hashkafah. Accordingly, it would be advisable for the yeshivos that educate young children to de-emphasize the teaching of gematriyos.”

Rav Schachter later quotes a fascinating idea from Rav Soloveitchik, who once asked why learning rabbinic laws wasn’t considered bitul Torah on a d’Oraysa level. According to Rav Schachter, Rav Soloveitchik dismissed such a concern because “even though the obligation to fulfil the dinim d’rabbanan is mandated by the Chakhamim, nonetheless, once they instituted all of these dinim, they too become a full-fledged portion of Torah Shebe’al Peh on the level of d’Oraysa.” Here’s another to think about it:

As with the non-accepted opinions of Beis Shammai, all of the dinim d’Rabbanan, upon being instituted, become a part of Torah Shebe’al Peh min haTorah Therefore, despite the fact that the obligations to fulfil specific mitzvos d’Rabbanan are clearly not min haTorah, one who studies takanos d’Rabbanan and gezeiros d’Rabbanan fulfills the mitzvah of talmud Torah on the level of d’Oraysa.

Unlike laws that were transmitted by Moshe directly, many that were rabbinically enacted or interpreted are “subject to change. They differ though as to the particular guidelines under which one beis din may choose to pasken differently than an earlier beis din.” This allowance is rooted in a debate between the Rambam and the Geonim before him.

Rav Schachter summarizes the Geonic tradition as positing that “every din found in the Gemara was told to Moshe explicitly. According to this view, other than the dinim d’Rabbanan, there never was any “development” of Torah Shebe’al Peh beyond the giving of the Torah. All the dinim were transmitted by tradition from the days of Moshe Rabbeinu.” In that school of thought, Talmudic debates attempt to recapture the truth that was somehow lost over time. Rav Schachter thoroughly rejects this based on the Rambam, arguing that it “is an untenable position, as it is tantamount to claiming that every single machlokes in the Gemara is the result of a breakdown in the transmission of the Masorah. To assert that so much of the tradition was simply forgotten is a scandalous criticism of the Jewish people.” The Rambam, rather, allows for rabbis to play a significant role in the development of the Oral Torah.

Allowing such development, though, requires significant nuance. Afterall, we’ve just described something that sounds a lot like the Conservative approach to psak - roughly that the Gemara is binding, but all after is up for discussion. Preempting this, Rav Schachter suggests a fascinating reading of the Rambam’s 8th Principle of Faith:

The eighth of the Ikkarei Emunah of the Rambam is the belief in torah min haShamayim. This does not mean that at one time in the history of the world, Hashem gave the Torah min haShamayim, and that subsequently, there was a breakdown in the Masorah. There were maskilim who thought this way, that the Amora’im misunderstood the Tanna’im, and the Rishonim misunderstood the Amora’im, and the Acharonim misunderstood the Rishonim, and therefore none of the halakhos are binding. We do not subscribe to this view. When the Rambam formulates the ikkar ha’emunah of Torah min haShamayim, he asserts… the Torah that we have today, and the mitzvos as we observe them today, are the same as was given to Moshe. The reason for this belief is emunas Chachamim. There may be occasional errors in girsa or misunderstandings due to human fallibility. Ultimately, though, we believe that honest talmidei chakhamim throughout the generations were given divine assistance to pasken properly, and that they did not introduce mistakes or their personal agendas into their pesakim.

This is unpacked more only a few pages later:

To summarize, we have seen that over the generations there was much rabbinic input in the development of the Torah Shebe’al Peh. Later talmidei chakhamim are entitled and obligated to express their honest opinions, even in disagreement with those of earlier generations, and even if they are clearly not greater in scholarship than earlier ones. Nevertheless, we assume… that there is a supernatural divine assistance to honest talmidei chakhamim to pasken properly, and whenever there is a dispute, HaKadosh Baruch Hu arranges it that the preferred opinion will be the one that will prevail. Even if a person were to attempt to force the acceptance of his opinion on Klal Yisrael, HaKadosh Baruch Hu will ultimately orchestrate events so that the halakhah will be adjusted according to His wishes.

This position, fully understood, allows for intellectually honest figures in each generation to disagree with those who came before them in pursuit of the best applications of Halakhah and in acknowledgement of the fact that many traditions that we have today come from a similar place. This is very similar to a view expressed by Rabbi Dr. Sam Lebens in his book the Principles of Judaism:

God also endorsed, at Sinai, the process of evolving traditions and interpretations that the faithful of Israel would develop over time, including their relationship with other books of the Bible. There may be wrong turns from time to time but, guided by ruach hakodesh (the holy spirit of God), the general trajectory is such that the unfolding content of the revelation, through the religiously observant communities of the Jewish people, brings the content of the Earthly Torah ever closer to the content of the Heavenly Torah.

One practical repercussion of these positions is how science ought to impact halakhic development. While Rav Schachter was recently quoted as saying that Torah U’Madda boiled down to needing a degree to make a living and the convenience of obtaining one while learning in yeshiva, he is quite open to integrating modern science with the halakhic process. This is not only apparent in his decision to wear techeiles based on archeological evidence but also in numerous positions in Divrei Sofrim. He writes, for example, that the best approach to dangerous health situations and halakhah is “to follow in the footsteps of the Gemara. The chakhmei haGemara followed the doctors of their generation, and we should follow the doctors of our generation. The doctors of every generation should determine what is and is not considered a safek sahanah.” Indeed, “we should rely… on the doctors of our generation and use the most up-to-date medical information to try to resolve any she’eilah.”

Rav Schachter also rejects the idea that the Gemara discusses creatures that do not exist. For example, he writes that “the Gemara mentions mermaids, since the general public at the time thought that mermaids existed. Therefore, when the Chakhamim expounded, they might have mentioned mermaids in order to illustrate a point through images that people were familiar with. The Gemara does not necessarily mean that mermaids actually existed.” This has led to a situation where “in that historical context, the populace understood what the imagery… alluded to.” Unfortunately, “centuries later, it is impossible for us to relate to them.”

Taking historical contexts into account while acknowledging an underlying divine guidance allows Rav Schachter to accept a plurality of Jewish expressions: After all,

Different Jews may have somewhat varying traditions. Hashem gave the Torah to the entire nation of Israel but allowed for a variety of attitudes. Each tribe has its own approach and there can even be differences within a tribe… God wishes to have a variety of different kinds of people. Each masorah though, traces its history back to Sinai and conforms to core halakhic and hashkafic attitudes.

This allowance means that Halakhah can progress and evolve depending on situations and contexts. Indeed, Rav Schachter writes that “just like science progresses, so too halakhah advances.” The question then becomes how to ensure that one stays within legitimate boundaries. Here, Rav Schachter emphasizes that new interpretations of halakhah “require the proper motivation and, if done with the wrong intentions, is spiritually poisonous because the practitioner biases his judgment toward his personal desires” and that “we may not follow an otherwise proper custom that was instituted by someone unqualified.” He then presents five “global considerations” to keep in mind as halakhic innovations are proposed:

1. R. Soloveitchik insisted that we not apologize for Jewish tradition. We live in a misguided society, and if its values sometimes conflict with our Masorah, the society is mistaken. Our Masorah teaches how an ideal society operates and we must embrace that tradition, not apologize embarrassedly for it…

2. …In our day, when modesty is a rarity and promiscuity abounds, we cannot allow practices that breach the boundaries of modesty by abandoning behavioral differences between men and women.

3. …In addition to the general prohibition against following gentile practices, the Torah further prohibits performing mitzvos in a way similar to gentile religious practices. This was the reason that R. Soloveitchik opposed mixed seating in the synagogue so stridently…

4. … Innovations, even if otherwise appropriate, are rendered improper if they give the appearance of following the agenda of sectarians, of non-Orthodox movements. R. Soloveitchik emphasized that any practice, even if otherwise permissible, that serves as a symbol of a counter-halakhic agenda is forbidden.

5. Acharonim have ruled extremely strictly about synagogue customs. Just like we are forbidden to enact change in the Beis HaMikdash, a prohibition the Gemara derived from the Bible, we are similarly forbidden to change a synagogue practice because that paskul applies equally to a mikdash me’at a synagogue…

All of these considerations inform the analysis of a gadol baTorah in determining whether a practice is consistent with the Masorah he has received from his teachers and transmits to his students. Someone committed to that Masorah will make sure to remain within the chain of Jewish tradition and not deviate beyond the letter and spirit of our received teachings.

Attentive readers will recognize that these considerations come from an essay of Rav Schachter’s against a particular feminist innovation. Professor Adam Ferziger has suggested in his book Beyond Sectarianism that Rav Schachter’s “repudiation of Orthodox feminism can be viewed, then, as an essential component in his effort to neutralize more liberal trends within Modern Orthodoxy, thus expediating a realignment of American Orthodoxy that does away with the distinctions between the “right wing” of Modern Orthodoxy and the Haredi sector.” Ferziger goes on, though to add an important idea:

Notwithstanding the possibility that it is a push toward the Haredi worldview that underlies Schachter’s antagonism to Orthodox feminism, it is important to distinguish between religious leanings and full identification. Inasmuch as Schachter increasingly puts forward Haredi-like views, he remains, as emphasized above, affiliated with Yeshiva University and has not abandoned key elements in his religious ideology that are squarely associated with Modern Orthodoxy and are disparaged by the traditionalists. Consequently, I suggest a more nuanced account of Schachter that stops short of viewing his rejection of Orthodox feminism as one more indication that he is moving Modern Orthodoxy headfirst toward the Haredi religious camp.

…he is dedicated to advancing a hybrid Orthodoxy that is heavily influenced by Haredi ideals but remains situated within a Modern Orthodox milieu that accepts core positions staked out by his teacher, Soloveitchik. On a personal level as well, Schachter continues to see his mandate as serving a predominantly non-Haredi constituency. Within this role, Schachter’s strategy is to bolster a conservative line without necessarily erasing the boundaries that continue to distinguish his camp from its Haredi co-religionists.

Ferziger’s account deserves much thought, but need not be read negatively. Many value the fact that segments of the extended YU community seen to be just as religiously legitimate as their yeshivish peers while still maintaining the individuality and acceptance of aspects of modernity that makes our approach so special. In fact, Rav Schachter’s approach in Divrei Sofrim acknowledges and emphasizes the human hand in halakhic development. Both Rav Schachter and Rabbi Phillips outline approaches that are unapologetically nuanced. Many aspects of halakhah are acknowledged as human developments with Divine approval.

Whether one agrees or disagrees with the practical considerations laid out by Rav Schachter, his positions come from a place of wanting to cut beyond factors that may confuse one away from Torah. As he writes:

Yeshiva University, which is a combination of Yeshivas Eitz Chaim and Yeshivas Rabbeinu Yitzchak Elchanan, is a hemshech (continuation) of the yeshivah in Volozhin… A major difference between Volozhin and Slobodka is that the yeshivah in Volozhin did not have a mussar seder. Instead, there was almost a total emphasis on limmud haTorah, on the assumption that the way to develop a love for HaKadosh Baruch Hu is by first gaining knowledge of what HaKadosh Baruch Hu is all about through the Torah’s description of Elokus.

Like Rav Soloveitchik before him, Rav Schachter advocates a worldview completely grounded in Torah. All else grows from there and develops over time, guided by our unique contexts in partnership with the Divine presence that permeates reality. Neither Rav Hershel Schachter nor Rabbi Shmuel Phillips let their readers forget that halakhah is the path we forge when walking hand in hand with the Divine. We would do well to read their books and take that lesson to heart. Who knows where things will go from there?