The Orality of Jewish Oral Law 237 Israel Jacob Yuval The Orality of Jewish Oral Law: from Pedagogy to Ideology* I did not imagine that things out of books would help me as much as the utterances of a living and abiding voice. Eusebius, History of the Church, III 39.4 I. The thesis I wish to present in this paper is that the orality of the “Oral Law” played an important role in the creation of a Jewish identity distinct from that of Christianity. In order to understand this, we shall need to examine in retrospect the changes that took place during the first centuries of the Common Era that de- termined the nature of Judaism from that point on until the present: namely, the meteoric development of the halakhah. At first blush, the halakhah is no more than a natural continuation of biblical law. The recognition that the covenant be- tween Israel and its God requires the people of Israel to fulfill the commandments of God is rooted in biblical literature and continues throughout the period of the Second Temple. Nevertheless, something decisive happened during the first cen- turies CE. A new class emerged, that of the Sages, who began to create a literary œuvre that had no precedent in the earlier period. In place of a collection of tradi- tions and interpretations of the commandments which already existed during the time of the Second Temple, a new corpus began to take shape, of a canonic char- acter, referred to by the name “Oral Law” (Torah sheb’eal peh) because it was con- veyed and preserved in an oral manner. This corpus enjoyed a canonic status by virtue of the belief that at the Sinaitic revelation God gave Israel two laws or teach- ings, one written and one oral. In practice, both enjoy an identical authoritative status, the function of the Oral Law being to interpret and complete the Written Law. The orality of the Oral Law was not limited merely to its revelation at Sinai and the nature of its transmission from generation to generation, but also ex- * I wish to thank my dear friend and in-law Professor Shlomo Naeh who shared his wisdom with me in both written and oral teaching. 238 Israel Jacob Yuval pressed its inner quality, the manner of its study and formation, to the extent that an approach developed which forbade it being set down in writing.1 At this point, two questions emerge: first, in what manner did the Oral Law differ from the halakhah which had been practiced – at least according to the tes- timony of Josephus, of the New Testament, and particularly of the Qumran writ- ings – even before the Destruction of the Second Temple? Second, why were the Sages so insistent upon the oral transmission of the Oral Law, and why did they refrain from writing it? These are complex questions, to which the best re- searchers of the previous generation and of the present generation have devoted their energies.2 There are those who thought that already during the period of the Second Temple it was forbidden to record the halakhah in writing, or at least that thus held the Pharisees. Others think that the sources referring to a prohibition of writing are later, and that in practice the recording of halakhot in writing was common even among the Pharisees.3 There are also different opinions as to the scope and time frame of the prohibition against writing the Mishnah and there- after of the Talmud. Some think that, despite the prohibition, the Mishnah and Talmud were written down, but were studied orally. Others think that the Mish- nah and the Talmud were not written down at all throughout the period of their composition.4 Recently, Jacob Sussman has readdressed the question of the writ- ing of the Mishnah and reached the conclusion that it was transmitted orally 1 Peter Schäfer: Das “Dogma” von der mündlichen Torah im rabbinischen Judentum. In: idem: Studien zur Geschichte und Theologie des rabbinischen Judentums. Leiden 1978, pp. 153–213. 2 Among contemporary scholars: Menahem Kister: Observations on Aspects of Exegesis, Tradition, and Theology in Midrash, Pseudoepigrapha, and Other Jewish Writing. In: John Reeves (ed.): Tracing the Threads: Studies in the Vitality of Jewish Pseudoepigraph. Georgia 1994, pp. 1–34; David Weiss Halivni: Revelation Restored – Divine Writ and Critical Re- sponses. Oxford 1997; Elizabeth Shanks Alexander: The Orality of Rabbinic Writing. In: Charlotte E. Fonrebert/Martin S. Jaffe (eds.): The Cambridge Companion to the Talmud and Rabbinic Literature. Cambridge 2007, pp. 38–57. On the complex scholarly discussion of this issue, see: Vered Noam: Megillat Ta’anit. Versions, Interpretation and History. Jerusalem 2003, pp. 106–216. 3 Josephus speaks of the Pharisaic “traditions of the elders” (their paradosis). As against that, in speaking of the Sadducees he refers to their “written laws” (Josephus: Antiquities, 13.297; 20.209; etc.). According to Albert Baumgarten, reliance upon the “patriarchs” or “fathers” is intended to bolster the Pharisees’ claim that their halakhah is not a human invention, but rather is based upon the “fathers of the world” (see further below, n. 15, concerning the Pharisees sitting upon the throne of Moses). This criticism is brought, for example, in Mat- thew 15:3: “you violate the commandments of God in order to follow your own traditions”; Albert I. Baumgarten: The Pharisaic Paradosis. In: Harvard Theological Review 80 (1987), pp. 63–77. Also in the scholion to Noam: Megillat Ta’anit (see note 2), there is a distinction drawn between the Sadducees, who have a “book of edicts” and the Baithuseans who “wrote halakhot in a book”, and the Pharisees, who protested this and argued against them that “one should not write in a book”. 4 For a summary of the various opinions, see Jacob N. Epstein: Introduction to the Mishnaic Text. Jerusalem 1948, pp. 692–706; Saul Lieberman: Hellenism in Jewish Palestine. New York 1950, pp. 83–85; Jacob Sussman: The Oral Torah in the Literal Sense. The Power of the Tail of a Yod. In: Mehkerei Talmud 3 (2005), pp. 209–384, esp. pp. 228–238. The Orality of Jewish Oral Law 239 throughout the entire period of the Talmud up until the Geonic period. Although he does not make any definitive statements as to the time of its recording in writ- ing, he places the end of the oral era somewhere between the sixth and eighth cen- tury.5 Without entering into these major and complex scholarly disputes, I would like to suggest another dimension to this discussion: namely, to examine the ideology of the development of the Oral Law and the insistence upon its transmission and study in an oral manner against the background of parallel developments in early Christianity. Regarding this matter, the words of Paul concerning the “Law” and his understanding of this concept two decades before the Destruction of the Sec- ond Temple are of particular importance. Due to his devotion to spreading the gospel, Paul was prepared to accept patterns of behavior which were not his own but of those whom he attempted to convince: “to those under the law I became as one under the law – though not being myself under the law – that I might win those under the law” (1 Corinthians 9:20). This would seem to imply that he him- self was not subject to the Law. However, in the very next verse he denies this: “not being without law toward God but under the law of Christ.” Paul is thus the first one to speak in a clear manner of two divine laws: the Law of Moses (which he refers to by the word “Law”, without modification), and the law of Christ. He does not see himself as subject to the Law of Moses, and explains the reason in the Letter to the Galatians: the function of the Law of Moses was to serve as a “cus- todian” (Gal 3:24), enabling man to avoid sin until the coming of Christ. For that reason, he perceives it as a curse: “Christ redeemed us from the curse of the law, having become a curse for us” (v. 13). The Law of Christ, to which he is subject, is the gospel of Jesus and the belief in him, by virtue of which those who believe will be saved. The Law of Moses is a text, but the Law of Christ is not a text, but rather the living teaching which Paul disseminates to the Gentiles through his epistles and his sermons – in other words, it is an oral teaching or Torah.6 It follows from this that, in Paul’s eyes, the Pharisees’ books of halakhah were not considered a new Torah, but rather an integral part of the Law of Moses. As mentioned above, following the Destruction of the Second Temple a tre- mendous development took place in the halakhah, so that the “Oral Law” was gradually created, both as a corpus and as a concept. While after the war against the Romans in 70 CE the Romans sought to suppress the rebellious spirit of the Jews by destroying their Temple, following the rebellion of Bar Kokhba in 135 CE, they did so by prohibiting them from studying Torah in public or from fulfilling its commandments. This fact indicates the emergence of a new factor in Jewish self-definition: the transformation of the study of the Torah into a central 5 Sussman: The Oral Torah (see note 4). 6 The relation between the creation of early Christian literature and the orality of the Phari- sees was noted by: Birger Gerhardsson: Memory and Manuscript.