Our Gemara on Amud Aleph relates that Rav recorded a halakhic question in a letter of greeting, by inserting it between the lines or margins.  Some commentaries explain that he did this because he wanted to limit the degree of permanence vested in the halakhic note, as he was reluctant to write down Oral Torah.  (See Rashi and Maharam Schiff.)

From early childhood, we are taught that the Torah comes in two forms: The Written Torah and the Oral Torah.  Like many of the fundamentals taught in youth, we do not learn them with depth.  What is the reason for an oral Torah and what is its nature?  It is illogical to think that Oral Torah is the same as written Torah, and one is merely written while the other is not.  There must be some quality, characteristic and purpose for a portion of the Torah to be in a non-written form.

Rabbi Moshe Chaim Luzzato (the Ramchal – who also wrote the Mesilas Yesharim and Derech Hashem) in Maamar Ha-Ikkarim explains that G-d willed certain parts of the Torah to remain cryptic, only to be understood via an accompanying explanation handed down from master to student. Presumably, the Ramchal believed that just as Kabbalah is too esoteric to be taught unfiltered to the masses, even the Torah itself required a discretionary process whereby the master informed the student on a level that he assessed him to be capable of apprehending. The Rambam in Moreh Nevuchim (I:71) agrees with this concept.  He states that many ideas in the Torah are too nuanced to be written down without leading to misunderstanding but adds an additional point: The written word can easily be misinterpreted and only through a consistent master-student relationship can the full, subtle, undistorted meaning be given over. Thus, since one had to study under a master for many years and absorb his Torah and methodology, the end result would be consistency and lack of machlokes (halachic disputes). In fact, the Rambam laments that once the Oral Torah was recorded, indeed many more halachic arguments ensued. Similarly, the Ran (Megillah 14a in Rif pagination) states that the ideas in the Torah are too profound to be written down and therefore must rely on direct teacher-student transmission of information, otherwise one would be tempted to suffice with simple explanations.

These ideas explain the “why” of the Oral Torah but they do not explain the “what”. Meaning, what is the functional feature and benefit of the Oral Torah? Is something qualitatively different occurring when one studies the Oral Torah as opposed to the written Torah? To better understand this we should consider that the concept of not writing down the Torah did not necessarily end with the Mishna and Gemara. When the halachos were codified, not everyone welcomed this innovation and scholarly convenience. The Maharal (Nesivos Olam, Nesiv Ha-Torah 15) had strong criticism against the halachic codes of his day because he felt this would lead to an ossification of the dynamic halachic process:

“We are taught in a Beraisa: ‘The Tanaim destroy the world (this word “Tanaim” is referring to the savants who memorized the teachings and not referring to the Rabbis of the Mishna). Could it truly mean that they destroy the world? Do they not establish the world (by preserving the teachings)? Rather they destroy the world because the offer halachic rulings from their rote memorized teachings...This means that they pasken from their teachings without understanding the basis of their rulings. This is why they destroy the world because they are destroying Torah when they do this, as this is not real Torah. It is only real Torah when you decide based on your intellectual understanding...In our generation it would be bad enough if they ruled from the Mishna, which at least is the beginning of the Talmudic analytic process, but worse, they rule from codes which are not designed to teach Torah but rather to offer halachic guides. This state of affairs is contrary to proper thinking. True, the early authorities such as the Rambam and the Tur also wrote codes and didn't provide their analysis, but their intention was to show the halacha they arrived at through the intellectual and analytic process of studying the sources. It never was their intention that a person should rule from their codes without knowing the underlying reason. If they thought that their writings would have led people to abandon studying Gemara and deciding halacha from merely external texts, they never would have written it. 

It is far better to rule halacha from studying the Gemara even if it is possible that one might rule incorrectly. The scholar only can know what his intellect shows him from his analysis -- and even his albeit mistaken ruling is beloved to Hashem, may He be blessed. The judge only can judge from what his eyes see. This is far preferable than to rule from a composition without knowing any of the real reasons, to be as a blind man who gropes along the path.

The Maharal makes several points that require discussion and understanding.  The Maharal is not referring to the content of Torah but rather to the process of study. The Torah is not simply a list of facts that can be recorded, rather it is a dynamic process that occurs when the human intellect encounters the revealed and transmitted principles of the Torah, and uses judgement and analysis to apply it to a particular situation. By way of metaphor, one might think of a halachic code akin to a picture of a person running. The picture is only capturing a moment in time, and we use our imagination to discern that this represents a person who is running. So too, a written halachic ruling is merely a photograph of a moment in time. A two-dimensional representation of a multi-dimensional process. The Torah actually only exists live, in real time, in the mind of the talmid chacham who analyzes and rules in the moment, based on his accumulated Torah wisdom. A biologist may study a cell under a microscope, but often he first must kill it to do so. He usually cannot see the authentic biological process in a live specimen. So too, the Oral Torah cannot be captured and put in a book without killing off part of its life force. It must be kept live, and unplugged.  This is perhaps the key feature of the Torah Sheba’al Peh and what makes it different than Torah Shebekesav.

One fascinating aspect of the Oral Torah is role and power the rabbis of the Mishna and the Sanhedrin had in their ability to create novel halachos from the Shlosh Esre Middos She-ha-Torah Nidereshes, the thirteen derivational principles of Rabbi Yishmael, found at the beginning of the Sifri and said every morning before shacharis.  It would seem that the rabbis had some latitude in how they chose to implement these principles and used logic and reason to guide them in how to select which textual comparisons, links, a fortiori, rhetorical analysis, and other homiletical tools to infer and even develop new rules and rituals. To the extent that we understand this, it adds a dimension of meaning and unique quality to the study of Oral Torah. It is not just reading or reciting a text, but actually creating Torah.

Taking this theme even further, we see how much authority the Sanhedrin had in their ability to create novel halachos from the Shlosh Esre Middos She-ha-Torah Nidereshes, the thirteen derivational principles of Rabbi Yishmael, found at the beginning of the Sifri and said every morning before shacharis. The Rambam makes it clear that the rabbis of the Mishna had the ability to create laws from derashos that are considered Deoraysa (of Biblical authority) and not merely mederabannan (rabbinic), as we find in his halachically famous description of the monetary method of enacting marriage as kesef – mi-divrei ha-sofrim “from sages” (Mishne Torah, Laws of Marriage, 1:2.) (Also see Psychology of the Daf Yoma 80, where we discussed various conflicting sources regarding the degree of creative latitude given to Chazal when making derashos.)

Rabbi Moshe Shmuel Glasner, a 19th century rabbinic authority also known as the Dor Revi’i, in his introduction to his commentary of the same name on Gemara Chullin offers a lengthy and detailed composition about Oral Torah ((named as such because he was a fourth generation descendant from the Chasam Sofer and also possibly a Zionist allusion, from the verse in Bereishis (15:16) “and the fourth generation shall return”).  In it he discusses rabbinic authority, the nature of the oral and written tradition, and the ability of the Torah to adapt to each culture’s and society’s needs. It contains many powerful ideas that may not represent the normative hashkafic position, though it's hard to know because the issues as he raises them, are not often discussed explicitly, even though much of what he says can be found implicitly in other sources. Here are excerpts from the original Hebrew version (my translation):

“Just as with the physical matter of nature, man can use his intellect and insight to create new material from the foundational elements, so too this can be done with the wisdom of our holy Torah...In a similar vein, our blessed sages tell us that the Holy One Blessed Be He showed Moshe chiddushei Torah  (novelae) that every faithful student will develop in the future, for within the Torah lay the potential of all future chiddushei Torah that will come forth in each generation…

Even though the Torah was sealed and we are not allowed to add to it nor diminish it… [not even] a prophet is allowed to create a new law. However, that is only a prohibition to add or diminish -- but a derasha or exposition is within the scope of every Jewish court composed of musmachim. This is also comparable to material creations, that though man cannot create ex nihilo, he is able to forge and mix various elements via the essential forces latent within them. The Torah and physical matter are the same except that physical matter is given over to all of mankind to manipulate and form, while our holy Torah was given to the chosen people, the Children of Israel.  The Torah is ours to cherish and to establish it, to ardently read its words continuously with sacrifice, in order to attain understanding of its inner light, so that we will find newly revealed enlightenment which will enable us to add content to our spiritual lives…

 And this is how the Rambam states it (Chapter Two, Laws of Rebellion): ‘Should a religious supreme court derive a law from one of the derivational principles in accordance with their logic, and then passed a ruling, and then a subsequent religious court overturned the original ruling, this is legitimate and can be done based on their logic.  As it states, ‘To the judge that will be in those days’, meaning one is only obligated to follow the contemporary religious court’s ruling [when it contradicts a ruling of a prior court].’ And that which we have learned in Maseches Ediyos that in order to overturn a prior ruling, it requires the subsequent religious court to be greater in both wisdom and numbers, the Rambam explains (ibid, article 2) this limitation is only regarding a rabbinic decree or safeguard, but not in regard to expository derivations from the Torah…

One of the obvious differences between the Written Torah and the Oral Torah is that the written Torah was given to Moshe word for word, from ‘In the beginning’ until ‘In front of the eyes of all of Israel’.  However, the Oral Torah was given by concepts, not actual words.  Regarding this, our sages stated that all the prophets prophesied with the words ‘so said Hashem’, while Moshe prophesied with the words ‘so said Hashem’ and ‘this is the word.’  This means to say, the other prophets did not receive the words, rather just the concepts, and the prophets themselves gave over the matter in their own language based on their understanding of their prophecy. This is what is meant by the wording ‘so said Hashem’. However, Moshe prophesied in the form of ‘so said Hashem’ and in the form of ‘this is the word.’ That is, the Written Torah is represented by ‘this is the word’, and the Oral Torah is represented by ‘so said Hashem.’ The Written Torah was given word for word, however the Oral Torah was given in its concepts and Moshe transmitted it in his own words. This is what our sages mean when they said, ‘No two prophets prophesize with the same style of words.’ Meaning, each prophet will use his own unique choice of words to express his prophecy….See Rashi (Kesuvos 57a, “Ha Ka-Mashma Lan) who explains that ‘two opposing Torah opinions can both be words of the living God, since sometimes the decision is one way, and other times another way, based on even minute variables in the situation.’...And therefore one who doesn't want to corrupt the truth must come to the conclusion that the reason why the Oral Torah was forbidden to be written down was to prevent tying the hands of subsequent sages of each generation. This oral process would allow the Torah to remain eternal. For each generation’s change in environmental circumstances and moral state requires rulings that are in accordance with those needs, be they enactments of laws or corrective or preventive measures… This is also why in the blessings recited over the Torah we refer to the Torah as Torah of truth and eternal life. The Torah of truth refers to the Written Torah as it is static and unalterable. The Oral Torah is represented by the words eternal life as it is not a fixed and absolute truth, but a truth that comes out by the understanding and agreement through the halachic authority of that particular generation. This is why it is alive and dynamic…

In order to give authority to the sages of each generation, and so as not to have the people break up into different sects, the Torah provided the laws of zaken mamreh (a rebellious sage). The point of it, as explains Sefer Ha-Chinuch, is so that even if the Sanhedrin ruled incorrectly, it is forbidden to follow one’s own opinion. Better to have one mistaken halacha than to have the Jewish people dissolve into chaos and disorder…”

In the commentary of Medrash Shmuel on Pirke Avos, chapter one, under the heading of ‘Make a gate around the Torah’ he states the following: ‘That is why the Torah was given to Yehoshua, to do with it as he sees fit, even to say that the right is left and the left is right, as is appropriate for the time and place. And similar authority was given over to the elders (who inherited the mantle of religious leadership from Yehoshua). This is one of the reasons that the Oral Torah was not written down so that it can be given over to the authority of the Beis Din Ha-Godol (Religious Supreme Court) to enact as they find appropriate.’ We see from here that the Oral Torah was given in concepts but not written down as facts, and that it was the will of the Commander (God) that it not be a fixed explanation for all generations in order to prevent the Torah from contradicting the needs of life and society as it develops…

The Oral Torah is not an absolute fixed truth but a reasoned truth, meaning whatever the sages of each generation come to consensus about becomes its truth. Even if the new truth contradicts a prior truth, the new interpretation becomes true Torah. For this is what Hashem commanded -- that we not turn from what the sages of each generation tell us, even if it contradicts what was the prior consensus. This too is what is meant by the saying, ‘both these and these are words of the living God’, in accordance with explanation of Rashi that I cited earlier. It is for this very reason that the phrase is ‘living God’ (because the Oral Torah is alive and dynamic).

In truth however, this discussion is only relevant for when the Mashiach comes, when we will return to Eretz Yisrael and the crown of the Torah will be returned to its proper place. At that time, once again it will be forbidden to write down Oral Torah. This principle, that the Oral Torah is given to the sages of each generation, and that they can override prior rulings is only when it is not written down. Once the Oral Torah is committed to writing, it is forbidden to overturn what was explicitly fixed in text. This in fact was the intention of Rabbi Yehuda Ha-Nasi and the sages of his generation by permitting the recording of the Oral Torah to text, specifically to restrict the future generations from arguing on their rulings so that their halachic decisions would remain constant for the future days. By understanding this consequence you can understand why writing the Oral Torah was such a seismic change to the extent that the Gemara (Temurah 14b) states ‘Whoever records halachos is as if he incinerates the Torah.’

True, it was Hashem’s will that the Torah have two parts, so that through the Oral Torah, it will allow the spirit of each generation to express itself through human interpretation of the holy Torah and its mitzvos. However, (this power is available only) to the spirit of a nation and its sages who dwell in their homeland, who live a life independent of other nations and not influenced by their values. The Oral Torah can only be given to the holy Jewish nation who are enlightened by living securely in their homeland - only they can be trusted to interpret it according to their understanding at each period in time, and we are commanded to obey their rulings even when they tell us that our right hand is our left.

However, this principle does not apply to a nation scattered amongst the nations whose wise men's’ body and soul are oppressed by the burden of exile, and all the secular influences blow them about to and fro, to the point of extinguishing the holy spirits within them...The words of our sages shows the extent of this: ‘Whomever lives outside of the land of Israel is as if he has no God’.

Rabbi Yehuda Ha-Nasi foresaw...the many exiles and travails that would befall this nation and kill its spirit. He therefore was concerned what would happen to the Torah if the Oral Torah was not fixed in writing. This was done out of fear that secular cultural and contemporary influences would infect our spirit and end up corrupting us and we would forget the truths of the Torah. It is for this reason they agreed to commit the Oral Torah to writing so that it no longer can be diminished or appended. Nowadays, the Oral Torah, which is currently in written form, only can be interpreted and have its text analyzed by means of derivational reasoning similar to how originally the status of the written Torah was originally.” The reason why the Oral Torah was forbidden to be written down was to prevent tying the hands of subsequent sages of each generation. This oral process would allow the Torah to remain eternal. Because each generation’s change in environmental circumstances and moral state requires rulings that are in accordance with those needs, be they enactments of laws, or corrective, or preventive measures… 

The Dor Revi’i articulated a framework for the function of the Oral Torah that is seemingly radical but on a practical level completely in line with our beliefs and halachik process. He asserts that during a time where there was a Sanhedrin, the chachamim had broad legislative powers over the Torah. They had the ability, via due legislative process and rabbinic consensus, to use derashos to change Biblical interpretations and rules. He is explicit that this power was not only an intellectual exercise, not merely an interpretive process stemming merely from how they read and understood the texts, but also a purposeful process to respond to the physical and moral needs of the times so the Torah would not come into conflict with the realities of life. This would allow the rabbis to modify anything in the Torah that they felt needed updating or adjustment, so long as they could use derashos to do so. The proviso was, that since this was a sacred trust, it only could be accomplished by a qualified Sanhedrin, living free in the land of Israel, so their intellect and morals would not be corrupted by impure and alien values. (We discussed this idea as well in Psychology of the Daf, Yevamos 80, where we saw conflicting Midrashic accounts of the derasha that allowed King David’s lineage to be accepted.)

Additionally, Dor Revi’i brilliantly proposes that the very act of writing the Oral Torah, in effect makes it into written Torah. Thus, the rabbis no longer had power to add on to any mitzvah nor to diminish any mitzvah. Furthermore, once it was reduced to writing, the formerly Oral Torah was now subject to homiletical and derivational analysis, the only available route for expanding the laws, just as if it were scripture. This is a clever way to understand why the Gemara often derives new interpretations and laws merely from an extra word, emphasis, exclusionary or generalizing phrase, or other rhetorical analytics of phrases found in a Mishna or Beraisa.

This bold proposition by the Dor Revi’i is not without danger. This position is in effect embracing a historical perspective on Judaism, that in fact many parts of the Oral Torah tradition were not from Moshe but could have evolved purposefully under the molding guidance of the Sanhedrin. This position is somewhat supported by Shemos Rabbah (41): “Did Moshe really learn the entire Torah (from God)? But, as the verse attests, “its breadth is wider than the Earth,” and he learned it in only forty days?! Rather, God taught Moshe the principles.”

It is ironic, that this daring idea about the Oral Torah should come from a descendent of the Chasam Sofer, whose famous response to the concerns of the modernizers and reformers of his time was “Chadash Asur Min HaTorah - All innovation is prohibited in the Torah.” According to the Dor Revi’i, any of the pressing contradictions between contemporary values and needs versus the Torah such as attitudes towards sinners and Gentiles, genocidal commandments, the meaning of animal sacrifice, end of life concerns and many other complex social and societal concerns that seem possibly out of sync with modern life, could be fair game for a duly empowered properly sagacious Sanhedrin on Jewish national soil.

This is a radical proposal and can be misused to justify gross distortions of the Torah. Of course, this was the Dor Revi’i’s exact point. The Sanhedrin would have to be extremely careful not to fall down a slippery slope, and not respond to passing spiritual fads that do not reflect the moral advancement of the Jewish people and its holy mission. The pressures of contemporary issues are seductive. Precisely because the sages had the power to revise the Torah, they must be sure that their values represent the Torah values and not secular, impure ones. We, as the Dor Revi’i says, who have been contaminated by profane secular ideas do not have the ability to distinguish between an authentic need to revise the Torah for a particular social or moral development, and when to hold the line against the tide of change.

Nevertheless, the words of the Dor Revi’i are comforting and empowering. Instead of being stuck with knee-jerk defensive or apologetic responses to contradictions between modern sensibilities and needs versus the Torah, which is often a part of the rhetoric today, a frum Jew has the option to acknowledge that in theory, the Torah had a process to genuinely deal with these problems. At this moment, in exile, we are stuck with a Torah that is partially ossified, but we can also look forward to the times of the moshiach when these issues can be revisited carefully by a Sanhedrin whose agenda is purely the moral and spiritual needs and mission of the Jewish nation.

It is also no wonder that the Dor Revi’i was an active religious Zionist. With a vital vision such as his, how could one not be a Zionist? In fact, perhaps the Dor Revi’i would assert this is the true reason for the delay of the Moshiach. Hashem may be holding him back for our own good. Until we can prove ourselves spiritually worthy of handling such powers of the Torah, it would be dangerous. If we do not have the wisdom to live together peacefully and to apply the truths of the Torah appropriately to our modern predicaments, we could end up in a state of Jihad, splintering into warring factions and destroy the consistency of the Torah.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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