To define the problem, while there are certainly frequent references to Sinaitic traditions in the Talmud, there are also numerous passages that appear to indicate that certain laws were 'derived' from Biblical verses at one time or another. This then requires us to delineate the relationship between derivation and tradition.
Among the medieval authorities that took up this question, there emerged two schools of thought. One saw Talmudic evidence as demonstrating that Talmudic material was transmitted directly, teacher to student, from one head of academy to another, detail after detail. Nothing, no matter how trivial, was innovated, except those Rabbinic enactments that are clearly and unambiguously so identified. This view is expressed by R. Saadiah Gaon in his commentary to the beginning of Leviticus, R. Sherira Gaon in his Iggeret, R. Abraham ben Daud in the introduction to the Book of Tradition, R. Nissim Gaon in Mafteach L'Manuelei Hatalmud. To quote a representative passage from the Book of Tradition: "…teachings of the rabbis of blessed memory, namely, the sages of the Mishna and Talmud, have been transmitted; each great sage and righteous man having received them from a great sage and righteous man, each a head of academy and his school, as far back as the men of the Great Assembly, who received them from the prophets of blessed memory. Never did the sages of the Talmud, and certainly not of the Mishna teach anything, however trivial of their own invention, except for enactments which were made by universal agreement in order to make a hedge around the Torah"[1]. How could then controversy and disagreement exist among Talmudic Sages? It is because some details of particular laws were forgotten in the course of exile due to relentless persecutions. The purpose of derivations then is to restore these details but never the major principles. R. David Nieto in his Matteh Dan explicates this view and shows that even where superficial reading of relevant passages suggests that new laws were innovated, this was not the case. Rather, it is only a peculiarity of idiomatic language that creates this impression.
In modern times, R. I.A. Halevy in Dorot Harishonim championed this view[2]. This is the position that R. Nieto elaborates in the ensuing discussion in which he makes extensive use of the Book of Tradition.
This approach is logical and internally consistent. Its chief disadvantage in modern times is that accumulated knowledge of history, sociology, comparative religion and political science - everything that we learned about how traditions arise and evolve, makes this picture less tenable than was the case in the past. It requires making only one, but a significant assumption - that the process of transmission was essentially miraculous, driven by Ruach Hakodesh and therefore, an exception to the general pattern.
Maimonides presents a different account of the history of religious law and its transmission in the Introduction to the Mishna and relevant passages of his other works. He claimed that in addition to received laws the Sages derived new interpretations with the authority that the Torah has granted them. In this they made use of the thirteen rules of interpretation, commonly accepted legal principles and received definitions of terms[3], and disputes and controversies only occur in regard to these newly derived laws. This is why there were no disagreements before the students of Hillel and Shammai, not having learned sufficiently well from their illustrious teachers, attempted to carry forward the tradition[4]. "For when two people are identical in understanding and in study and knowledge of the principles from which they derive, there will not arise a disagreement between them, and if there will be some, they will be few…. For their method of study in all that they derived form the use of principles were similar to one another and also the correct general principles were held by them in common." Although he allows more scope for legal innovations on the part of the Rabbis, Maimonides says that no Sinaitic tradition has ever been forgotten, thus shoring up reliability of tradition in a different way[5]. Here too, disagreements resulted when later generations have lost some of the acumen and grounding of the previous ones. "… for when two people are identical in understanding and in study and knowledge of the principles from which they learn, there will not happen disagreements between them as to what they learn by the use of one of the principles of interpretation, and if there are disagreements, they will be few, as we never found disagreements between Shammai and Hillel except in a few laws, for their ways of study were similar and also the correct general assumptions that were held by one were also held by another".
Rambam's view is more consistent with the 'spirit of the times". In fact, it can easily acommodate a semi-critical approach and much of the academic discoveries; in many ways it provides a better explanation of many such discoveries that the prevailing naturalistic academic view that presupposes no Revelation.
(For a trenchant factual critique of Maimonide's view that no Sinaitic tradition was ever subject to dispute, see Responsa Chavat Yair 192 and for his defense, Torat Neviim of R. Zvi Hirsch Chajhes. The latter explains that Maimonides did not claim that no Sinaitic tradition was ever forgotten but that it was never forgotten completely by all Sages. Since individual Sages may have forgotten a specific law, controversies may on occasion arise even regarding Sinaitic laws, but those who have retained intact memory of the laws will always ultimately restore them. Thus, he hold that even Maimonides held that the purpose of derivations was as much to derive new laws as to restore forgotten ones.)
In modern times, R. Meir Leibush Malbim subscribed to the position that derivations created law rather than simply restored them[6].
Maintaining that all laws are received by tradition still leaves the difficulty of those rare instances where the derivation appears to go against the apparent meaning of Biblical verse, for presumably, Oral Law should not conflict with the written Law. Here R. Nieto uses his substantial learning and towering intellect to demonstrate that in truth there is no conflict and that the true meaning of these exceptional verses is in accordance with their Talmudic interpretation.
( After: from The Rabbis Advocate, Chacham David Nieto and the Second Kuzari, Yashar Books, 2007, see http://hirhurim.blogspot.com/2007/01/rabbis-advocate.html
[1] R, Sherira Gaon (Ch.2 of the Iggeret) follows the same view but he introduces another strand of thought. He suggests that in the years prior to writing down of the Mishna, each Tanna taught and organized the material that he had received in his own way. At the time of the Mishna there came to exist various formulation of the same material, each phrased and expressed in a somewhat different language and phrasing. "Some taught general rule; others added detail; and others expanded and offered many examples and analogies." Presumably, this itself may have led to different understandings and interpretations of the same original traditions. Rabbi elected to follow the formulations of R. Akiba and his students while relegating other collections to "external" status; this explain preponderance of certain names in the Mishna and its focus on citing later Sages.
[2] Dorot Harishonim I, 5, p. 487. R. Halevy maintains that rabbinic derivations do not create laws but serve solely to support and base received laws.
[3] Such as torts, damages, etrog, sukah and the like.
[4] In modern philosophy such an approach is called the coherence theory of truth - the truth is that which coheres best with the pre-existent premises and methods of deduction. It seems that the disagreement about the method of transmission may rdepend on the question of reliability of logic and exegetical tradition in deriving correct conclusion and particulars out of principles. Maimonides trusts the ability of interpretative rules while Nachmanides and his school do not. As a result, the former sees the method of transmission as dependant largely on rules of interpretation while the former claims that all details were directly transmitted under Divine Inspiration. A similar dispute between R. Akiba and R. Ishmael is found in Zevachim 115b. R. Akiba says: "Principes and particulars were given at Sinai and repeated at the Tent of Meeting and reviewed for the third times in Arvot Miab" R. Ishmael says: "Principles were said at Sinai and particulars in the Tent of Meeting". Thus, R. Akiva believes that all details had to be transmitted from the beginning while R. Ishamel maintains that particulars could be derived out of principles under Divine guidance".
In a similar vein, S. Rosenberg, It is not in Heaven: Oral Law - tradition and innovation (Hebrew)Tevunot, Alon Shevut, 1998, p.12, suggests that the dispute between Geonim and Maimonides may be traced back to the one between R. Eliezer and R. Yehoshua.
[5] This point was made by Chavat Yair in the responsa quoted in the text.
[6] Ayelet Hashachar, Introduction to Hatorah Vhamitsva on Leviticus.
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