Is the Oral Torah from Sinai?

"Moses received the Torah at Sinai and transmitted it to Joshua, Joshua to the elders, and the elders to the prophets, and the prophets to the Men of the Great Assembly." — Mishnah Avot 1:1¹

"The position of neither the Sadducees nor the Pharisees should be confused with the later rabbinic doctrine of “the Oral Torah,” a phrase and a concept that do not appear in any text of the Second Temple period." — Shaye J. D. Cohen, 2014²

Summary

Rabbinic Judaism teaches that God gave Moses two Torahs at Sinai.  One was written:  the Five Books of Moses.  The other was spoken:  the explanations, details and rules that tell a Jew how to keep the written one.  That second Torah, the Oral Torah, was passed from teacher to student for centuries, and was finally written down in the Mishnah around AD 200 and in the two Talmuds over the next three centuries.  Orthodox Judaism today rests on it.  It is what gives the Talmud's rules for the Sabbath, for kosher slaughter, for prayer and for marriage the authority of revelation rather than of scholarship.

This is Judaism's equivalent of the hadith question in Islam (Which Hadith Count as Canon?):  a large body of law that claims to go back, by a chain of teachers, to the founding prophet.  This article states the claim in its own words, gives its strongest case, and then tests it against the Hebrew Bible, the Jewish writers of the Second Temple period, the Dead Sea Scrolls, the Karaite Jews who reject it, and the rabbis' own record.  The same test is then applied to Christian claims about tradition.

• The claim comes in three strengths, and Jewish tradition itself holds all three. The strong version says that the detailed laws in the Mishnah were given to Moses and handed down whole; the Jerusalem Talmud even says, "Even what a competent student will discover before his teacher was said to Moses on Sinai."¹ A middle version, Maimonides', says that Moses received the explanations of the commandments, without dispute, and that later courts derived the rest. A weak version, from Nachmanides and his students, says that Moses received principles and the authority to decide, and that each generation's court makes the law. Moshe Halbertal of the Hebrew University calls these the retrieval, cumulative and constitutive models.³ (Part 1)
• The strongest case for the claim is real. The written Torah cannot be kept as written. It forbids work on the Sabbath without defining work, and it says "you may slaughter ... as I have instructed you" without giving the instructions.¹ Some unwritten practice had to exist from the start. Josephus and the Gospels show that the Pharisees kept "the tradition of the elders" by the first century, and a Dead Sea Scroll, 4QMMT, shows that some rulings later found in the Mishnah were already disputed in the second century BC. Even the Karaites, who reject the Oral Torah, ended up with an inherited tradition of their own. (Part 2)
• The Hebrew Bible knows a written Torah and a living court, but not a second Torah. It says Moses wrote down "all" the commands, that the written book was read aloud to the whole nation, and that hard cases went to "the levitical priests, or the magistrate in charge at the time". It never mentions an oral law from Sinai. It also records two long breaks in practice: under Josiah a lost scroll of the law was found and a Passover was kept in a way it had not been kept since "the days of the chieftains who ruled Israel", and under Nehemiah the people dwelt in booths, which they "had not done so from the days of Joshua son of Nun". (Part 3)
• The Second Temple writers describe traditions "from the fathers", not from Moses. Josephus says the Pharisees passed on "observances by succession from their fathers, which are not written in the laws of Moses". No Jewish writer before AD 70 says those traditions came from Sinai, and Shaye Cohen of Harvard finds the phrase "Oral Torah" and the idea itself in no text of the period. (Part 4)
• The rabbis' own record tells against the strong version. The Mishnah was edited around AD 200, and most of the sages it names lived between about AD 80 and 180. By a simple count, nearly half of its 4,050 legal paragraphs record a named disagreement, starting with its first paragraph. It uses the phrase halakhah le-Moshe mi-Sinai, "a halakhah of Moses from Sinai", only three times. It credits rules to Hillel and to Yohanan ben Zakkai as their own enactments, and it says that the Sabbath laws are "as mountains hanging by a hair, for they have scant scriptural basis but many halakhot".¹ The early rabbis stated that the Torah's details were given at Sinai but almost never used the idea to decide a case, and the sweeping form of the claim, that everything a student would ever teach was said to Moses, first appears among the students of the Mishnah's editor, after the Mishnah was written.⁴ (Part 5)
• The Karaite objection is strong against the strong version, and weak against the need for tradition. The Karaites, Jews who since the eighth century have rejected the Oral Torah, argued that a law from Moses would not contain the Mishnah's competing opinions. But their own later scholars admitted that some practices, such as how to slaughter, rest on "the burden of inheritance".⁵ (Part 6)
• Verdict on each version. The evidence supports the existence of ancient Jewish legal traditions, some of them older than 150 BC. It does not support the strong claim that the Mishnah's detailed rulings were given to Moses. Maimonides' middle version fails a test it sets itself: his chosen example of a Mosaic explanation that no one ever disputed, "an eye for an eye" meaning money, was disputed by Josephus and by a rabbi quoted in the Talmud. The weak version, a God-given authority to interpret, cannot be tested by history at all; it is a theological claim, and it is the one most consistent with the Hebrew Bible's own picture of priests and judges. (Part 7)
• The same standard cuts against Christian claims of unwritten tradition. The Catholic and Orthodox claim that some teachings came from the apostles by unwritten tradition has the same structure, and fails the same test in the same way, though over two or three centuries instead of fifteen. Protestants avoid that claim but still depend on the early church's reception for their list of books. Jesus opposed one tradition that overrode a commandment (Mark 7), told his hearers to obey the scribes who "sit in Moses' seat", and kept customs, such as the Feast of Dedication, that the Torah never commands. (Part 8)

Verdict.  Judaism has always had an oral law, in the sense of an inherited way of keeping the written one.  That is well supported.  The claim that this inheritance was given to Moses at Sinai, in content and detail, and passed down intact to the Mishnah is a different claim, and the evidence runs against it.  The earliest witnesses call the traditions ancestral, not Mosaic.  The doctrine of a second Torah from Sinai first appears in rabbinic texts of about AD 200 to 250.  The Mishnah records disputes, votes and enactments throughout, and its own authors admit that whole areas of law hang "by a hair".  What remains defensible is the weak version:  that God gave Israel's judges authority to interpret.  That is a claim of faith, not of history, and it is the version this article cannot test.  This article does not take up the Messiah or Jesus;  those questions are in Why Judaism Rejects Jesus.

Part 1: The claim in its own words

The rabbinic texts

The first tractate of the Mishnah that every Jewish child learns, Pirkei Avot ("Chapters of the Fathers"), opens with a chain of custody.  "Moses received the Torah at Sinai and transmitted it to Joshua, Joshua to the elders, and the elders to the prophets, and the prophets to the Men of the Great Assembly."¹  The chain then names Simeon the Just, Antigonus of Sokho, five pairs of teachers ending with Hillel and Shammai in the first century BC, and Yohanan ben Zakkai, who rebuilt Jewish learning after Rome destroyed the Temple in AD 70.¹  Avot does not say "the Oral Torah";  it says "the Torah".  The rabbis read it as both.

The early rabbinic commentaries on the Torah make the claim explicit.  On Leviticus 25:1, where God speaks to Moses "on Mount Sinai" about the sabbatical year, the Sifra asks why Sinai is mentioned there, and answers:  "just as the general rules and specific ordinances of shemitah were enunciated at Sinai, so, with all the mitzvoth."¹  On Leviticus 26:46, which speaks of "laws, rules, and instructions" (torot, plural), the Sifra says "two Toroth were given to Israel, one written, and one, oral", and concludes that "the (entire) Torah — its halachoth, inferences, and interpretations — was given by Moses at Sinai."¹  The same passage records Rabbi Akiva objecting to the two-Torah reading of the plural:  "Did Israel have only two Torahs? Were not many Torahs given to them?"  The Sifrei on Deuteronomy tells of a Roman general, Agnitus, who asked Rabban Gamliel how many Torahs Israel received.  "He replied: Two—one transmitted orally and one inscribed in a text."¹

The Babylonian Talmud adds three stories and a rule.

• Hillel and the convert (Shabbat 31a). A gentile asked Shammai, "How many Torahs do you have?" and was told, "Two, the Written Torah and the Oral Torah." He said he would accept only the written one. Shammai threw him out. Hillel accepted him, taught him the alphabet, and the next day taught it in reverse. When the man protested, Hillel answered, in effect, that he had already trusted his teacher for the letters and should trust him for the rest: "Didn’t you rely on me?"¹
• The covenant was made for the oral law (Gittin 60b). Rabbi Yohanan reads Exodus 34:27, "in accordance with these commandments I make a covenant with you", as a pun on al pi, "by the mouth of", and says that God "made a covenant with the Jewish people only for the sake of the matters that" were transmitted "orally". Rabbi Yehuda bar Nahmani draws the rule that follows: "Matters that were written you may not express them orally [al peh]," and what was oral may not be written down. The same page records a disagreement: Rabbi Elazar held that "The majority of the Torah" was given "in writing, while the minority" was oral, and Rabbi Yohanan the reverse.¹
• Moses in Rabbi Akiva's school (Menachot 29b). Moses is shown the second-century teacher Akiva expounding the law from the decorative crowns on the letters of the Torah. Moses "went and sat at the end of the eighth row" in Akiva's study hall "and did not understand what they were saying." When a student asked Akiva for his source, Akiva said it was "a halakha" given "to Moses from Sinai", and at that Moses was comforted: "his mind was put at ease".¹
• Everything was given at Sinai. The Jerusalem Talmud goes furthest: "Even what a competent student will discover before his teacher was said to Moses on Sinai."¹

Maimonides

Moses Maimonides (1138–1204), the most authoritative Jewish legal writer of the Middle Ages, opens his code of Jewish law, the Mishneh Torah, with the doctrine:  "The mitzvot given to Moses at Mount Sinai were all given together with their explanations."  Moses wrote down the Torah, but the explanation, which Maimonides calls "the mitzvah", "he did not transcribe. Instead, he commanded it [verbally] to the elders, to Joshua, and to the totality of Israel".  Maimonides then lists the teachers by name and counts "forty generations from Rav Ashi back to Moses".¹

Maimonides does not claim that everything in the Talmud came from Moses.  The same introduction says that the Talmud "also includes marvelous judgments and laws which were not received from Moses, but rather were derived by the courts of the [later] generations".¹  In his earlier introduction to the Mishnah, he divides its laws into five kinds:  explanations received from Moses;  the few laws called a "law of Moshe from Sinai";  laws derived by reasoning, about which sages disagreed and voted;  decrees;  and enactments.  Then he makes a claim that can be tested.  "The explanations that were transmitted from the mouth of Moshe have no disagreement about them in any way."  His first example is the law of "an eye for an eye":  "we have not found a disagreement occur among the sages at any time, from the days of Moshe and until Rav Ashi", about whether it means taking out an eye.  Disagreements, he says, arise only where reasoning was needed, never where a tradition was received.¹

Modern defenders

Samson Raphael Hirsch (1808–1888), the founder of modern German Orthodoxy, gave the doctrine its best-known modern image.  Using the Hebrew names of the written and the oral Torah, he wrote:  "The תורה שבכתב is to be to the תורה שבעל פה in the relation of short notes on a full and extensive lecture on any scientific subject."  A student who heard the lecture can rebuild it from the notes;  "For those who had not heard the lecture from the Master, such notes would be completely useless."  On his account the complete law "had been given over to the people in its complete form" and "lived by them for full forty years" before Moses handed them the book.¹

Judah Halevi's Kuzari (about 1140), the classic answer to the Karaites, argues from the text itself.  If the bare consonants of the Torah need an inherited tradition of vowels and accents to be read aloud, "how much more is this the case for the comprehension of the same?"  Even "This month shall be unto you the beginning of months" (Exodus 12:2) cannot be kept unless someone already knows which calendar is meant.¹

Many modern teachers state the claim in its weaker form.  Joseph Albo (fifteenth century) wrote that a law for all times cannot be put in a book, "Therefore Moses was given orally certain general principles, only briefly alluded to in the Torah, by means of which the wise men in every generation may work out the details as they appear."¹  David Weiss Halivni, an Orthodox-ordained Talmudist, puts the shared premise plainly:  "No learned Jew has ever been oblivious of the canonical scriptures’ inability to stand alone."⁴

Three versions of the claim

Moshe Halbertal sorts the classical Jewish accounts into three models, and they make different claims.³

1. Retrieval (the strong claim). Abraham Ibn Daud and the Babylonian Geonim: "Moses received the entire Law, both written and oral, and at its source it was complete and perfect." Disputes among the rabbis are lapses of memory, and reasoning is a way to recover what was lost. Halbertal names its weak point: "If neglect and forgetfulness could erode a given body of knowledge passed down from Moses, what guarantees the credibility of the core of tradition itself?"³
2. Cumulative (the middle claim). Maimonides: a core of explanations came from Moses without dispute, and each generation added "substantive norms derived by their own reasoning". The Mishnah's authority then rests partly "upon the historically contingent fact of widespread acceptance."³
3. Constitutive (the weak claim). Nachmanides and his students Ritba and Ran: "The body of knowledge transmitted to Moses was not complete and final ... but open-ended, including all future controversies as well. Moses passed on this multifaceted body of knowledge and left it to the court in each generation to constitute the norm."³

Popular Orthodox writing usually states the strong claim and defends it with arguments that support only the weak one.  The rest of this article keeps the three apart.  Each part asks what the evidence says about each version.

Part 2: The strongest case for an oral law

The case for the Oral Torah is stronger than its critics usually admit.  It rests on four observations, and each of them is true.

The written Torah cannot be kept as written

The Torah gives commands without the information needed to obey them.  It forbids work on the Sabbath and never defines work.  It tells Israel that the year begins in a certain month without saying which calendar is meant, which is Judah Halevi's example.¹  Deuteronomy 12:21 permits Israelites far from the sanctuary to slaughter animals for food "as I have instructed you", yet no instruction on how to slaughter appears anywhere in the five books.¹  A baraita in the Talmud, credited to Judah the Prince, the Mishnah's own editor, reads the verse as proof that Moses had been commanded the rules of slaughter, such as cutting the gullet and the windpipe, though they were never written.¹

The prophets also assume rules that the Torah does not spell out.  Jeremiah forbids "carrying burdens on the sabbath day" through the gates of Jerusalem and out of houses, and he calls this keeping the Sabbath "as I commanded your ancestors".¹  No verse of the Torah forbids carrying.  Nehemiah, two centuries later, shut the gates of Jerusalem on the Sabbath to stop merchants bringing in loads.¹  Whatever the source of the rule, it was treated as old and binding in the seventh century BC.

Samson Raphael Hirsch saw the same thing in the order of the Torah's laws.  The civil code of Exodus 21 begins with the sale of a Hebrew slave, an exceptional case, and Hirsch asked what law of property and persons must already have been known for that to be the first thing said.¹  Secular scholars agree on the basic point.  E. P. Sanders of Duke University:  "Every first-century Jew lived by ‘oral law’, if oral law means ‘the law as interpreted’."⁶  Shaye Cohen thinks it "most unlikely" that even the Sadducees lived by the text alone, "since a life lived in accordance with the written word alone is a life filled with obscurities and contradictions".²

The Pharisees had traditions centuries before the Mishnah

The Jewish historian Josephus, writing in Rome about AD 93, says that in the time of John Hyrcanus (134–104 BC) "the Pharisees have delivered to the people a great many observances by succession from their fathers, which are not written in the laws of Moses".  The Sadducees rejected them and held that only "those observances" which "are in the written word" were binding.⁷  He also says that Queen Alexandra (76–67 BC) "restored again those practices which the Pharisees had introduced, according to the traditions of their forefathers".⁷  The Gospel of Mark, written about forty years after the death of Jesus, says that "the Pharisees, and all the Jews, except they wash their hands oft, eat not, holding the tradition of the elders."⁸  Paul, a Pharisee by training, says he was "exceedingly zealous of the traditions of my fathers."⁸

So the Pharisees, whom the rabbis regarded as their predecessors, kept a body of unwritten practice at least as early as the second century BC.  The rabbis did not invent the idea of a tradition beside the text.

The Dead Sea Scrolls confirm that some Mishnah rulings are old

The Mishnah records disputes between Pharisees and Sadducees.  In one, "The Sadducees say: we complain against you, Pharisees, that you declare an uninterrupted flow of a liquid to be clean."¹  In another, the priest who burned the red heifer "was (deliberately) made unclean on account of the Sadducees so that they should not be able to say, “It can be done only by those on whom the sun has set.”"¹

A letter found among the Dead Sea Scrolls, known as 4QMMT, which Vermes translates as "Some Observances of the Law", takes the other side of both disputes.  It says that those who prepare the red heifer must wait until "at sunset", "so that the pure shall sprinkle the impure", and that "the pouring does not separate the impure" from the pure, "for the poured liquid and that in the receptacle are alike".⁹  Géza Vermes of Oxford notes that the claim that the letter is Sadducean "relies on three legal rules, out of a list of more than twenty, in MMT which represent opinions identical with the halakhah attributed in rabbinic literature to the Sadducees, and contrasted with the stance taken by the Pharisees", and calls the letter something that "foreshadows the halakhic process developed and practised by later rabbis."⁹  Vermes thinks the letter was addressed to a leader who was "probably Jonathan Maccabaeus", the high priest from 152 to 143 BC.⁹  If so, at least two rulings later written in the Mishnah, and the disputes about them, already existed about three and a half centuries before the Mishnah was edited.  Yaakov Sussmann of the Hebrew University, who wrote the official study of the letter's law, concluded, in Menahem Kahana's summary, that the Pharisaic rulings are not a later development than the Sadducean ones:  "We now see that both existed side by side, and struggled with each other from early times."¹⁰

The rabbis kept honest records

The Mishnah preserves its losing opinions on purpose.  It asks, "why do they record the opinion of a single person among the many, when the halakhah must be according to the opinion of the many? So that if a court prefers the opinion of the single person it may depend on him."¹  It names chains of transmission where it has them.  When a question about two kinds of wheat came before Rabban Gamaliel, "Nahum the scribe said: I have a tradition from Rabbi Meyasha, who received it from Abba, who received it from the pairs [of sages], who received it from the prophets, a halakhah of Moses from Sinai".¹  A tradition that records its own disputes and names its sources is behaving as a careful tradition should.

What this case proves

These four points prove that Israel needed an unwritten way of keeping the written law, and that one existed long before the Mishnah.  Halivni is right that the Torah cannot "stand alone".  None of the four points shows where that unwritten practice came from.  A custom that is old, binding and necessary can come from Moses, from the priests and judges of later centuries, or from the slow growth of practice in a nation.  The question the rest of this article asks is which of these the evidence favours.

Part 3: What the Hebrew Bible says

This article takes the Hebrew Bible's own account at face value:  Moses received the law at Sinai and wrote the Torah.  The question here is not whether Moses wrote the Torah, but whether the Bible, read on its own terms, knows of a second, unwritten Torah given beside it.

Moses wrote, and the book was read

The Bible stresses writing and public reading.  At Sinai, "Moses went and repeated to the people all GOD’s commands and all the rules", and then "Moses then wrote down all GOD’s commands."¹  At the end of his life, "Moses wrote down this Teaching and gave it to the priests", with orders to read it aloud every seventh year at the Feast of Booths to "men, women, children, and the strangers", so that they would "observe faithfully every word of this Teaching."¹  He wrote "the words of this Teaching to the very end" and had the scroll placed beside the Ark "as a witness against you".¹  At Mount Ebal, Joshua "read all the words of the Teaching ... There was not a word of all that Moses had commanded that Joshua failed to read in the presence of the whole congregation of Israel".¹  Deuteronomy 4:2 adds, "You shall not add anything to what I command you or take anything away from it".¹

None of these verses rules out an unwritten explanation.  Maimonides reads them that way:  Moses wrote the Torah and taught the explanation by word of mouth.  But none of them mentions such an explanation either.  Joshua 8:35 is the closest the Bible comes to defining the extent of what Moses commanded, and it defines it as what could be read from the book.

The rabbis' proof-texts

The rabbis found the oral law in four verses.  Each reading is possible.  None is the plain sense.

1. Exodus 34:27. The verse says, in the JPS translation, "Write down these commandments, for in accordance with these commandments I make a covenant with you and with Israel."¹ Rabbi Yohanan's reading depends on taking al pi, an ordinary Hebrew idiom for "according to", in its literal sense of "by the mouth of". The verse itself tells Moses to write the commandments down. The Talmud's own Rabbi Elazar drew the opposite lesson from Hosea 8:12, that the greater part of the Torah was written.¹
2. Leviticus 26:46. "These are the laws, rules, and instructions that GOD established, through Moses on Mount Sinai".¹ The Sifra reads the plural torot as "two Torahs". Rabbi Akiva, in the same passage, objected that the Torah speaks of many torot, the instruction for the burnt offering, for the meal offering and so on.¹
3. Exodus 24:12. Maimonides reads "the tablets of stone, the Torah, and the mitzvah" as the written law plus its oral explanation.¹ But the verse goes on to say that God "inscribed" them: in the JPS, "the stone tablets with the teachings and commandments that I have inscribed to instruct them."¹
4. Deuteronomy 12:21. "As I have instructed you" is the strongest of the four, because the Torah gives no rules of slaughter. But it can also point back five verses to the instruction that is written: "you must not partake of the blood; you shall pour it out on the ground like water."¹ Both readings are possible.

The court in each generation

One passage does give an authority beyond the written text, and the rabbis rightly made much of it.  Deuteronomy 17:8–11 sends hard cases "before the levitical priests, or the magistrate in charge at the time", and orders Israel to "carry out the verdict that is announced to you ... observing scrupulously all their instructions to you", without deviating "either to the right or to the left."¹  Judah Halevi and Joseph Albo both base the authority of the rabbinic majority on this passage.¹

This is a living court, not a received text.  Its authority comes from God's command to obey the judges of each generation, not from a chain reaching back to Moses.  The prophets show the same picture.  Haggai, after the exile, is told to "Seek a ruling from the priests" about a question of holiness, and the priests answer it.¹  Malachi says, "the lips of a priest guard knowledge, And rulings are sought from his mouth".¹  In the Bible the keepers of the law are priests, Levites and judges.  The chain of Avot 1:1, from Joshua to "the elders" and "the prophets", does not mention the priests, though Simeon the Just, who comes next, was a high priest.

This biblical picture fits the weak, constitutive version of the claim:  God gave Israel judges with authority to rule.  It does not describe the strong version, a body of detailed rulings handed down from Moses.

Two breaks in practice

The Bible records two periods when the nation's practice of the law had lapsed.

Under King Josiah, about 622 BC, the high priest announced, "I have found a scroll of the Teaching in the House of GOD."  When the king heard it read, "he rent his clothes."¹  Josiah then ordered a Passover "as prescribed in this scroll of the covenant", and the narrator adds that "the passover sacrifice had not been offered in that manner in the days of the chieftains who ruled Israel, or during the days of the kings of Israel and the kings of Judah."¹  Chronicles says no Passover like it had been kept "Since the time of the prophet Samuel".¹

After the exile, Ezra read the Teaching to the people and the Levites gave "the sense".  The leaders "found written in the Teaching" that Israel must dwell in booths at the autumn festival, and they did, and "the Israelites had not done so from the days of Joshua son of Nun to that day".¹  Ezra himself "had dedicated himself to study the Teaching of GOD".¹  In both stories a written text corrects the people's practice.  Neither mentions an oral tradition that kept the practice alive, or that helped restore it.

These passages need careful handling, because they can be read in a weaker sense.  "In that manner" may mean that Passover had been kept, but not on that scale or in that place.  The Talmud itself raised the problem for Nehemiah 8:17, asking whether it was "possible" that "David came and" the people "did not make sukkot, until Ezra came?"  It answered that the verse compares the return under Ezra to the entry under Joshua, or that it speaks of Ezra's prayer rather than of literal booths.¹  Those readings are possible.  But on any reading the Bible presents the written book, not an oral chain, as the thing that survived the bad periods and restored the practice.  An oral tradition is carried by the same people who neglect the law.  The Talmud admits that something of this kind happened at least once:  it says that the ancient Aramaic translation of the Torah "was forgotten and then" Onkelos came and "reestablished it".¹

Verdict on the biblical evidence

The Hebrew Bible supports two things the rabbis claim:  that the law needed interpretation, and that God gave Israel a court whose rulings bind.  It does not mention a second Torah, oral or written, given at Sinai.  The verses offered for one are readings of single words against the sense of their own sentences.  The Bible's own history describes at least two breaks in practice that were repaired from a written scroll.  On the biblical evidence alone, the weak version of the claim is supported, and the strong version has no support.

Part 4: The Second Temple witnesses

Part 2 showed that the Pharisees had unwritten traditions well before AD 70.  This part asks what the writers of that period say about where the traditions came from.  Four kinds of witness survive from before the Temple fell:  Josephus, the New Testament, Philo of Alexandria, and the Dead Sea Scrolls.

Josephus: "from their fathers", not from Moses

Josephus's key sentence contrasts two sources of law.  The Pharisees' observances came "by succession from their fathers", and they "are not written in the laws of Moses".⁷  Josephus does not say the Pharisees claimed these observances came from Moses by another route.  He describes the Pharisees elsewhere as men who "pay a respect to such as are in years; nor are they so bold as to contradict them in any thing which they have introduced", a phrase that treats the traditions as things earlier teachers "introduced".⁷

Scholars read this passage in two ways.  Joseph Baumgarten argued that Josephus is contrasting form, unwritten against written, and that "in the time of Josephus and Philo oral transmission was looked upon as the characteristic medium of Pharisaic tradition."¹¹  Steve Mason, in the fullest study of Josephus on the Pharisees, argued that the contrast is about origin:  "The Sadducees reject the Pharisaic ordinances because they are not written in the laws of Moses. The conflict is over provenance, not form."¹²  On either reading, Josephus credits the traditions to "the fathers".  Jacob Neusner, after surveying every rabbinic tradition about the Pharisees, put the point this way:  "Josephus makes no reference to a Pharisaic claim that that tradition derives from Moses. He says it is from “the fathers.” He makes no reference either to an oral Torah or two Torahs."¹³

The New Testament: "the tradition of the elders"

The Gospels use the same language.  The Pharisees ask Jesus, "Why walk not thy disciples according to the tradition of the elders, but eat bread with unwashen hands?"⁸  Jesus answers by calling it "the tradition of men" and "your own tradition".⁸  Paul calls his former zeal one for "the traditions of my fathers".⁸  E. P. Sanders observes that the Pharisees "defended their peculiar traditions not by appeal to the Bible, but to antiquity. They claimed that they observed the ‘traditions of the elders’ or ‘fathers’."⁶  Neither friend nor foe in the New Testament describes the tradition as given at Sinai.  The Gospels are hostile witnesses on this point, but the Pharisees' own self-description, as Mark reports it, is "the tradition of the elders", not "the Torah of Moses".

Philo: unwritten customs

Philo, a Jewish philosopher writing in Alexandria in the first half of the first century AD, describes an unwritten law in his own words.  Commenting on the command not to move a neighbour's landmark, he says it is "a guard to ancient customs; for customs are unwritten laws, being the doctrines of men of old, not engraved on pillars or written on paper which may be eaten by moths, but impressed in the souls of those living under the same constitution."¹⁴  In another work he says that beside the written precepts there are "ten thousand other precepts, which refer to the unwritten customs and ordinances of the nation."¹⁵  Philo confirms that Jews outside the land of Israel also lived by unwritten customs.  He calls them "the doctrines of men of old".  He does not say they came from Sinai.

The Dead Sea Scrolls: rival claims to revealed law

The Dead Sea Scrolls belong to a group that disagreed with the Pharisees, and they show that more than one Jewish group claimed to hold the true law beyond the plain text.  The Damascus Document, a rule book of the sect, explains why King David took several wives:  "David had not read the sealed book of the Law which was in the ark (of the Covenant), for it was not opened in Israel from the death of Eleazar and Joshua, and the elders who worshipped Ashtoreth. It was hidden and (was not) revealed" until the coming of a priest named Zadok.⁹  That is a Jewish claim, earlier than the Mishnah, that the law's correct reading was lost from Joshua's death onward, the opposite of the unbroken chain in Avot 1:1.  The sect's Community Rule speaks of "anything hidden from Israel but discovered by the man who interprets", and its legal texts were written down, not kept oral.⁹  Baumgarten concluded that the scrolls "now establish beyond any doubt that the oral transmission of halakha was not a universally recognised norm."¹¹

So the evidence from before AD 70 shows several Jewish legal traditions competing.  The Pharisees appealed to the fathers, the Sadducees to the written text, and the Qumran sect to hidden revelation.  After AD 70 only one of these traditions survived as a living movement.  The Temple, the Sadducees' base, was gone, and the Pharisees, as Cohen puts it, "transformed themselves into rabbis."²

What the scholars conclude

The main historians of the period agree on the core point, whatever else they dispute.  Shaye Cohen:  "By the first century of our era, the Pharisees were priests and laypeople who believed that the ancestral tradition (not yet defined as the Oral Torah—that would come later in rabbinic times) was as binding as the written Torah of Moses."²  He adds that "the later rabbinic doctrine of “the Oral Torah,”" is "a phrase and a concept that do not appear in any text of the Second Temple period."²  Sanders:  "the term for non-biblical rules, according to Josephus, the New Testament and early rabbinic literature, was not ‘oral law’ but ‘tradition’."⁶

The rabbinic stories that put the "two Torahs" in the mouths of Shammai and Rabban Gamaliel are set before or just after AD 70.  But they are told in works edited in the third century or later, and Neusner notes that "the attribution to Gamaliel I is not firm".¹³  They show what the rabbis believed by then.  They do not show what Shammai said.

Part 5: The rabbis' own record

The strongest evidence about the Oral Torah is the Oral Torah itself, as the rabbis wrote it down.  Its own pages say when it was compiled, who speaks in it, how often they disagree, and which rules they made themselves.

When it was written down

The Mishnah, the first written collection of the Oral Torah, was edited around AD 200, traditionally by Rabbi Judah the Prince.  Shaye Cohen gives the standard dates:  "The earliest of these works, completed around the year 200 CE, was the Mishnah", followed by the Jerusalem Talmud, "completed around 360-400, and the Talmud of Babylonia (the Babylonian Talmud, or Bavli), completed around the year 500 (but still being edited two or three centuries later)."²  Chabad's own history agrees within a generation or two:  work on the Jerusalem Talmud stopped after Rabbi Yochanan (died about AD 290), and the Babylonian Talmud was edited from about AD 392 until the death of Ravina II in 475, "or, according to some", 499.¹⁶

The Bible dates the Exodus 480 years before Solomon began the Temple, which on the usual dating of Solomon puts Moses in the fifteenth century BC.¹⁷  So the Mishnah was written down about fifteen to sixteen centuries after Sinai.  Maimonides bridges the gap with "forty generations" from Moses to Rav Ashi.¹  Avot 1:1, the oldest form of the chain, names nobody at all between Joshua and Simeon the Just, who lived in the third or second century BC;  it says only "the elders", "the prophets" and "the Men of the Great Assembly".¹  Hermann Strack and Günter Stemberger, in the standard introduction to rabbinic literature, note that the Men of the Great Assembly "bridge a period of about two centuries" and call them "a fiction derived from the great national assembly of Neh 8-10";  the five pairs of teachers that follow are "probably a schematization of tradition in analogy to Hillel and Shammai."¹⁸

Who speaks in the Mishnah

The Mishnah does not read like a record handed down from Moses.  It reads like the debates of a school.  Cohen:  "the bulk of the sages named in the Mishnah belong to either the generation of Yavneh (ca. 80-120 CE) or the generation of Usha (ca. 140-180 CE). Relatively little material is ascribed to named figures who lived before the destruction of the Jerusalem temple in 70."²  What the Mishnah does credit to the earlier Pharisees is narrow.  Jacob Neusner sorted every rabbinic tradition about the pre-70 Pharisees and the Houses of Hillel and Shammai, and found that "Of the 341 individual pericopae ... no fewer than 229 directly or indirectly pertain to table-fellowship, approximately 67% of the whole", meaning food, ritual purity and tithes.¹³

This article counted disagreements in the whole Mishnah.  The Hebrew text of all 63 tractates on Sefaria has 4,158 paragraphs, 4,050 of them outside Avot, which is a book of sayings rather than law.  A paragraph was counted as recording a disagreement if it names two or more sages who give rulings, or sets "the sages" against a named sage, or sets the House of Shammai against the House of Hillel.  By that strict rule, 1,081 paragraphs, 27 percent, record a disagreement.  If a named sage who dissents from an anonymous ruling is also counted, the number is 1,877, or 46 percent.  A hand check of samples found the broad rule usually right and the strict rule an undercount.¹⁹  The very first paragraph of the Mishnah, on the time for the evening Shema, gives three answers:  "until the end of the first watch, the words of Rabbi Eliezer. The sages say: until midnight. Rabban Gamaliel says: until dawn."¹

The same count found the phrase halakhah le-Moshe mi-Sinai, a law given to Moses at Sinai, in only 3 of the 4,158 paragraphs, and the word Sinai in only 8.¹⁹  The Mishnah almost never says where its laws came from.

The rabbis explain the disputes as forgetting

The Talmud's own explanation for the disputes is that the tradition was damaged.  "From" the time "when the students of Shammai and Hillel who did not serve" their teachers "sufficiently proliferated, dispute proliferated in Israel, and the Torah became like two Torahs."¹  The damage, on the Talmud's account, began at once.  "Three thousand halakhot were forgotten during the days of mourning for Moses."  When the people asked Joshua to recover them by prophecy, he answered, "It is not in heaven."  A baraita adds that "One thousand and seven hundred a fortiori inferences, and verbal analogies, and minutiae of the scribes were forgotten during the days of mourning for Moses", and Rabbi Abbahu says that "Othniel, son of Kenaz, restored them through his sharp" mind, his pilpul, his skill at legal argument.¹

These stories matter, because they concede the point the strong claim needs to deny.  A law recovered by argument is a reconstruction, not a transmission.  Zvi Lampel, an Orthodox rabbi who wrote a whole book defending the rabbis' disputes, rejects the common answer that only derived laws were lost and never the laws given at Sinai:  "However, this distinction is simply untrue. At least one Halacha L’Moshe MiSinai was among the forgotten halachos spoken of above and its form clearly remained a matter of dispute (Temura 16a)".²⁰

The Talmud records a second break, in the time of the Hasmonean king Alexander Yannai (103–76 BC).  In its story the king's adviser tells him to destroy the sages, because the Torah "is wrapped and placed in the corner. Anyone who wishes to study can come and study."  The king did:  "all the Sages of the Jewish people were killed. And the world was desolate" until "Shimon ben Shataḥ came and restored the Torah to its former" glory.  A fourth-century teacher, Rav Nahman bar Yitzhak, adds the comment that the king should have asked what would become of "the Oral Torah".  The older story, a baraita, does not use the term;  the later comment reads it in.¹

The Talmud also contains the other answer, the constitutive one.  In the story of the "oven of Akhnai", Rabbi Eliezer calls on heaven, and "A Divine Voice emerged" to say that the law follows him.  Rabbi Yehoshua replies, "It is not in heaven", and the majority rules against the voice.  When the prophet Elijah is later asked how God responded, he says God "smiled and said: My children have triumphed over Me".¹  When the Houses of Hillel and Shammai argued for three years, "a Divine Voice emerged and proclaimed:" that "these and those are the words of the living God. However, the halakha is in accordance with" the House of Hillel.¹  These stories do not say the answer was received from Moses.  They say that the sages decide it, and that God accepts their decision.

The Mishnah credits rules to men

The Mishnah names some of its laws as the work of particular men.  "[A loan secured by] a prozbul is not cancelled. This was one of the things enacted by Hillel the elder".  The Torah cancels debts every seventh year, and Hillel, seeing that people refused to lend as the year approached, created a legal document that kept the debt alive.¹  After AD 70, "Rabban Yohanan ben Zakai decreed" that the shofar could be blown on a Sabbath New Year wherever there was a court, and the Mishnah records a dispute about how far his decree reached.¹  It says that the laws of the Sabbath, the festival offering and misuse of holy property "are as mountains hanging by a hair, for they have scant scriptural basis but many halakhot".¹

Maimonides' five categories make room for all of this, since enactments and decrees are categories of their own.  What the categories cannot easily absorb is a case where the same ruling is treated as a vote, an enactment and a law from Sinai.  The Mishnah has one.  Asked whether the Jews of Ammon and Moab owe the poor man's tithe in the seventh year, the sages argued, and Rabbi Joshua classed the parallel rules as enactments:  "The law regarding Egypt is the act of the elders and the law regarding Babylon is the act of the prophets".  "The votes were counted and they decided".  When Rabbi Eliezer heard, he said:  "Don't worry about your voting. I received a tradition from Rabbi Yohanan ben Zakkai who heard it from his teacher, and his teacher from his teacher, and so back to a halachah given to Moses from Sinai".¹  Halivni notes that the land of Ammon and Moab, "according to tradition, was conquered only after Moses’ death", and reads the Sinai phrase here as meaning a tradition "as reliable as it would be if it had been given to Moses himself."⁴

The Talmud's story of Moses in Akiva's school makes the same point in its own way.  Shaye Cohen reads it plainly:  "In the perspective of this story, Moses himself did not appreciate the full import of the words he wrote."²

When the claim grew

David Weiss Halivni traced the phrase halakhah le-Moshe mi-Sinai through the rabbinic texts in order of date, and the pattern is clear.  In the earliest rabbinic works, the Tannaim (the teachers up to about AD 220) "made almost no use of the concept".  In the four early midrashic works on the laws, it is cited as a source of law only once, and in the Tosefta once.  In the Mishnah it appears three times, "but in only one place (Peah 2:6) could the reference possibly be meant literally as an actual allusion to historical Mosaic tradition."⁴  The count in this article confirms the three Mishnah cases.  Halivni also notes that "the idea of an oral Torah (Torah she-be’al-peh) is hardly mentioned at all in Tannaitic literature".⁴  The claim grows with the next generations, and the sweeping statements that everything a student would ever say was given at Sinai come from "the number of early Palestinian Amoraim (students of R. Judah the Prince, anthologizer of the Mishnah)".⁴

Halivni offers a reason, which he calls a conjecture:  the students of Judah the Prince wanted "to enhance the authority of the Mishnah", which, unlike the older midrash, gives few reasons from Scripture and so needed "a different form of support."⁴  The ban on writing the oral law down shows the same pattern.  Neusner notes that the ruling in Gittin 60b against writing oral traditions "is not found before" the third-century teacher who states it, and "It therefore hardly seems warranted to extend the rule back to Moses (!)."¹³

What the rabbis' record shows

The rabbis' own record supports three conclusions.  First, the rabbis inherited real traditions, and some came with named chains.  Second, most of what the Mishnah contains is the work of second-century sages, who argued, voted and enacted, and who said so.  Third, the claim that all of it came from Sinai is stated most strongly by the generation after the Mishnah, the generation that needed to establish its authority.  None of this proves that no part of the Mishnah goes back to Moses.  It shows that the Mishnah does not itself claim to be a transcript of Sinai, and that the rabbis who made the claim also recorded the evidence against it.

Part 6: The Karaite objection

The Karaites are Jews who reject the Oral Torah and try to live by the written Torah alone.  Their name comes from qara, "to read", meaning the reading of Scripture.  The movement grew in Iraq and Persia in the eighth and ninth centuries.  Leon Nemoy of Yale, the main English translator of early Karaite writings, credits its first systematic book to "a learned and cultured Iraqi of aristocratic Rabbanite descent named Anan ben David who flourished in the seventh decade of the eighth century."⁵  Karaite communities still exist, mainly in Israel.

A saying is often attributed to Anan:  "Search thoroughly in the Torah and do not rely on my opinion."  It could not be found in Nemoy's translations of Anan, so this article does not quote it as his.

Their arguments

The Karaite case was made most sharply by Salmon ben Jeroham in the tenth century, in a verse attack on the Rabbanite leader Saadia Gaon, and by the Karaite scholar Jacob al-Qirqisani in 937.  It has three main arguments.

1. The disputes. Salmon read the six orders of the Mishnah and found that "This one Mishnaic scholar declares a thing to be forbidden to the people of Israel, while that one declares it to be permitted." If the law came from Moses, he asked, why the competing opinions? "Moreover, if the Talmud originated with our master Moses, What profit is there for us in “another view,” And what can a third and a fourth view teach us".⁵
2. The writing. The rabbis said the oral law must not be written, then wrote it. "Why, then, did you write it down in ornate script? Had the Merciful One wished to write it down, He would have had it written down by Moses."⁵
3. The witnesses. All Israel, Rabbanite and Karaite alike, accepts the written Torah. The oral law has no such universal witness: "Now if Israel and Judah are all united Concerning the validity of the oral Law which is, as they say, perfect, Let them offer their testimony, and let their voices be heard".⁵

Qirqisani stated the Rabbanite position he was answering:  they recognised the Schools of Hillel and Shammai "for they are the basis (of true religion), inasmuch as they adhere closely to (the books of) prophecy and have received (their teaching) directly from the prophets".  Against that he set his own rule:  "laws should be made along the lines of research and speculation only; whatever is proved by research and speculation to be necessary and logical should be accepted as dogma, no matter who adheres to it, be it the Rabbanites, or Anan, or anyone else."²¹

The Karaites also had a counter-history.  Qirqisani traced the Rabbanite practices to the northern king Jeroboam, who "introduced differences in religion" after Solomon.²¹  Later Karaites, as Bernard Revel reported in 1913, said that Simeon ben Shetah, a Pharisee of the first century BC, "invented the fiction that besides the Written there is also an Oral Law given to Moses on Sinai".²²  These stories have no more evidence behind them than the rabbinic chain of tradition.  They are polemic, and this article does not rely on them.

The Rabbanite answers

Saadia Gaon (882–942), the head of the Babylonian academy at Sura and the Karaites' chief opponent, answered that "the Bible is not the sole basis of our religion, for in addition to it we have two other bases. One of these is anterior to it; namely, the fountain of reason. The second is posterior to it; namely, the source of tradition."²³  He argued that a tradition held by a whole community is reliable in a way an individual's report is not.  Judah Halevi made the practical case.  If every reader interprets the Torah by his own lights, "there would be as many different codes as opinions".¹

The Karaites' own tradition

Halevi's prediction was borne out.  The Karaites themselves came to rely on inherited practice.  Elijah Bashyatchi, the leading Karaite legal writer of the fifteenth century, wrote that some laws "are not recorded in the Law and have become as second nature with us", and that "Such ordinances are called by scholars “the burden of inheritance” or “tradition”; for example, the slaughtering of animals which must be performed by means of a slaughtering knife and by proper cutting of the prescribed parts of the body; the sanctification of the new month".⁵  His first example is slaughter, the very case the rabbis drew from Deuteronomy 12:21.

Bashyatchi drew the line where the rabbis did not.  "Karaite tradition, however, is not like the tradition believed in by the Rabbanites, since the latter add to and subtract from Scripture and say that tradition overcomes the written biblical text".⁵  A tradition, for him, is accepted when it does not contradict Scripture and is held by all Israel.  That is a narrower claim than the Rabbanite one, but it is still a claim to tradition.

Verdict on the Karaite objection

The Karaites are right about the strong claim.  Their argument from disagreement is the same one Halbertal says the retrieval model must answer, and the rabbis' own stories of forgotten laws concede it.  The Karaites are wrong that the written Torah can be kept without an inherited practice, and their own later scholars admitted it.  The dispute between Karaites and Rabbanites, stripped of its polemics, is not over whether Judaism needs tradition.  It is over whether tradition may override the plain sense of the text, and over whether the rabbis' version of it carries the authority of Sinai.

Part 7: What the evidence supports

A test Maimonides set himself

Maimonides' middle version can be tested, because he stated it in a form that can fail.  The explanations received from Moses, he wrote, "have no disagreement about them in any way", and his first example was "an eye for an eye":  no sage "from the days of Moshe and until Rav Ashi" ever said it meant taking an eye.¹  Popular Orthodox teaching repeats the rule.  Aryeh Kaplan, on Aish.com:  the laws Moses received "were carefully preserved from generation to generation, and for this reason one never finds a dispute concerning them."²⁴

The example fails.  Josephus, a priest writing in the first century, summarises the law of Moses this way:  "He that maimeth any one, let him undergo the like himself, and be deprived of the same member of which he hath deprived the other, unless he that is maimed will accept of money instead of it".⁷  On his account, money was the injured man's option, not the law's meaning.  The Talmud itself preserves a dissent:  "Rabbi Eliezer says:" that "An eye for an eye" means "an actual" eye.  The Talmud's editors could not accept this ("Can it enter your mind" that the verse means an actual eye?) and explained Rabbi Eliezer's words so that he agreed with everyone else.¹  Halivni, who defends a Sinai oral law, treats the case the other way round:  it is one of the "relatively few" cases where "oral tradition displaced the literal meaning of the written word entirely".⁴

A defender can say that Josephus was describing a non-Pharisaic view, or Roman practice, and that Rabbi Eliezer meant what the Talmud says he meant.  Both are possible.  But the claim was not that the rabbis' reading eventually prevailed.  It was that no one ever disagreed.  When the first counterexample is explained away by reinterpreting the dissenter, the claim can no longer be tested, and an untestable claim is not evidence.  Zvi Lampel, an Orthodox defender of the tradition, draws the same conclusion about the general rule:  "this distinction is simply untrue."²⁰

A physical test: tefillin

Tefillin, the leather boxes holding passages of the Torah that Jewish men bind on the arm and head for weekday prayer, are the one part of the oral law that archaeology can check.  The Talmud says that the boxes being "square" and the straps being "black" are each "a halakha" given "to Moses from Sinai".¹  Chabad lists the black straps as a standard example of a law given to Moses at Sinai.²⁵  An Aish.com rabbi gives the practical argument:  "People knew what Tefillin looked like because every male was wearing a pair since the time of Moses."²⁶

The Talmud itself shows the first difficulty.  Right after Rabbi Yitzhak calls black straps a law from Sinai, the Talmud quotes an older baraita saying that straps may be "green, or black, or white", and then reconciles the two by applying them to different sides of the strap.¹

The oldest surviving tefillin, from Qumran and the Judean desert in the first centuries BC and AD, show the second.  Emanuel Tov of the Hebrew University, the editor-in-chief of the Dead Sea Scrolls publication project, reports that most of the Qumran tefillin contain the four passages the rabbis require plus others, including the Ten Commandments, while "Four tefillin contain only texts that were not prescribed by the rabbis" and "several tefillin lack Deut 6:4-9", the Shema.  "Accordingly, the content of these tefillin would have made them unfit for use in rabbinic circles; they were probably used by the Qumran community which was not bound by the later rabbinic rules."  Four other Qumran tefillin match later rabbinic practice.²⁷  The order of the four passages is disputed between the medieval scholars Rashi and his grandson Rabbenu Tam, a dispute that still decides how Orthodox tefillin are made.  Yigael Yadin, who published the first complete head-tefillin from Qumran, found that tefillin from Wadi Murabba'at, from the time of Bar Kokhba (AD 132–135), follow Rabbenu Tam's order, and another set from the same period follows Rashi's:  "This shows that the two systems were in use concurrently."²⁸

The finds cut both ways.  Yadin also found that "the order of the ‘classical’ scriptural portions was carefully adhered to, while no rigid rules may have existed concerning the added scriptural portions."²⁸  So the core passages were stable, as the tradition says, and the Qumran variants belong to a sect the rabbis would have rejected anyway.  But two arrangements of the same four passages were in use among mainstream Jews in the second century AD, and the dispute about them was still unsettled a thousand years later.  That is what a practice shaped over time looks like, not what a daily object specified at Sinai and copied by every Jewish man for fifteen centuries would look like.

The claims, one by one

What follows

The verdict differs by version.

• Some oral law existed, and some of it is old. This is not in dispute. A Christian who dismisses the very idea of an oral law has not reckoned with Deuteronomy 12:21 or Jeremiah 17.
• The strong claim fails. The evidence runs against it at every point where it can be checked: the Bible's silence and its record of breaks; the Second Temple writers' "fathers" and "elders"; the Mishnah's disputes, votes and named enactments; and the late appearance of the maximal claim in the rabbis' own writings. An oral corpus could leave no trace, so absence of early mention is not proof. But the strong claim is not only unmentioned before AD 200; it is contradicted by what the earlier sources do say about where the traditions came from.
• The middle claim is weaker than it looks. Some broad practices, such as how to slaughter or how to mark the Sabbath, probably are very old, and some may go back to Moses. But "very old" is not "from Sinai", and the claim that the received core was never disputed fails its own chosen test.
• The weak claim is not a historical claim at all. If God gave the court in each generation authority to decide, then the Mishnah's disputes and enactments are exactly what one would expect, and nothing in this article counts against it. Nor does anything count for it. It stands or falls with the authority of the rabbis, which is a question of faith. It is also the version closest to the Bible's own picture, in which priests and judges "in charge at the time" rule on hard cases.

Part 8: The same standard both ways

The tests used above were three.  When is the claim of origin first made, compared with the events it describes?  Does the tradition record disputes about what it supposedly received?  Does it admit that some of its rules were made later?  A Christian who applies these tests to the Oral Torah has to apply them to Christian claims about tradition too.

Catholic and Orthodox tradition

The closest Christian parallel to the Oral Torah is the Catholic and Eastern Orthodox teaching that the apostles left an unwritten tradition beside the New Testament.  The Council of Trent (1546) taught that saving truth and discipline "are contained in the written books, and the unwritten traditions which, received by the Apostles from the mouth of Christ himself, or from the Apostles themselves, the Holy Ghost dictating, have come down even unto us, transmitted as it were from hand to hand".²⁹  The Second Vatican Council (1965) repeated it:  "Consequently it is not from Sacred Scripture alone that the Church draws her certainty about everything which has been revealed."³⁰

The structure is the same as the rabbinic claim:  a written text, an unwritten companion from the same founder, and a chain of teachers who handed it on.  So is the evidence.  Basil of Caesarea, about AD 375, gives the classic list:  "Of the beliefs and practices whether generally accepted or publicly enjoined which are preserved in the Church some we possess derived from written teaching; others we have received delivered to us “in a mystery” by the tradition of the apostles".  His examples are the sign of the cross, facing east to pray, the words said over the bread and cup, the blessing of baptismal water and oil, and "the custom of baptizing thrice".³¹  These customs are older than Basil.  Tertullian, about AD 200, defended the same practices, and he was frank about their basis:  "If, for these and other such rules, you insist upon having positive Scripture injunction, you will find none. Tradition will be held forth to you as the originator of them, custom as their strengthener, and faith as their observer."  Of triple immersion he admits, "we are thrice immersed, making a somewhat ampler pledge than the Lord has appointed in the Gospel."³²  That is the Christian equivalent of an enactment:  a custom that adds to the founder's command and is defended as tradition.  The claim that these customs came from the apostles is first made a century and a half to three centuries after the apostles, and nothing earlier says so.  By the test this article applied to Avot 1:1, it is not supported either.  The gap is shorter, two or three centuries instead of fifteen, but the verdict is the same.

Earlier writers used tradition more modestly.  Irenaeus of Lyon, about AD 180, appealed to the teaching held by churches the apostles founded, and asked, "For how should it be if the apostles themselves had not left us writings? Would it not be necessary, [in that case,] to follow the course of the tradition which they handed down to those to whom they did commit the Churches?"³³  He wrote about a century after the apostles, and he used tradition to confirm what the apostles' writings teach, not to add laws they do not contain.  That is closer to the weak version of the rabbinic claim than to the strong one.

Protestants and the canon

Protestants reject unwritten tradition as a source of doctrine.  The Westminster Confession (1646):  "The whole counsel of God ... is either expressly set down in Scripture, or by good and necessary consequence may be deduced from Scripture: unto which nothing at any time is to be added, whether by new revelations of the Spirit, or traditions of men."³⁴  By that rule a Protestant can reject the strong Oral Torah claim without inconsistency.

But Protestants do depend on the early church's tradition for one thing:  the list of books.  No New Testament book lists the others.  Eusebius, about AD 325, still classed James, Jude, 2 Peter and 2 and 3 John among "the disputed writings, which are nevertheless recognized by many".³⁵  The first surviving list of exactly the twenty-seven books of the New Testament is in the Easter letter of Athanasius in AD 367.³⁶  The Catholic Church makes the point against Protestants in its own words:  "Through the same tradition the Church's full canon of the sacred books is known".³⁰  The Westminster divines conceded the human side:  "We may be moved and induced by the testimony of the church to an high and reverent esteem of the Holy Scripture", though they rested the books' authority on God, not on the church.³⁴

The comparison holds here only in part.  Protestant dependence on tradition concerns which documents count, not what those documents say.  The documents existed, and their dates can be tested:  the four Gospels and Paul's letters, which Eusebius lists among the books accepted by all, were written within one lifetime of the events they describe.  The Oral Torah's content cannot be tested in the same way, because none of it is in writing until about fifteen centuries after the events it claims to report.

Jesus and the tradition of the elders

Jesus is often quoted against the Oral Torah, usually from Mark 7.  The passage is narrower than it is made to sound.  Jesus objected to one use of tradition:  a vow, korban, that let a son withhold support from his parents.  "Full well ye reject the commandment of God, that ye may keep your own tradition", and so "Making the word of God of none effect through your tradition".⁸  The Mishnah records rabbis of the following generations debating the same problem.  "Rabbi Eliezer says: They release a vow [by reference] to the honor of his father and mother but the Sages forbid", and the passage ends with the sages conceding that "in a matter concerning himself and his father and mother one may release a vow" on those grounds.¹  On this point the later rabbis moved toward Jesus' position.

Jesus did not reject tradition as such.  He told his hearers, "The scribes and the Pharisees sit in Moses’ seat: All therefore whatsoever they bid you observe, that observe and do; but do not ye after their works".⁸  He walked in the Temple at "the feast of the dedication", Hanukkah, a festival instituted by Judas Maccabaeus in 164 BC and found nowhere in the Torah.⁸  At the Last Supper he took "the cup" and "the cup after supper", though the Torah's Passover law says nothing about wine;  the Mishnah later required "not less than four cups".⁸  The New Testament writers also draw on Jewish traditions found nowhere in the Hebrew Bible, such as the names of Pharaoh's magicians, "Jannes and Jambres", and the archangel Michael's dispute with the devil "about the body of Moses".⁸

So the Christian position that comes from Jesus himself is not "Scripture alone, and no tradition".  It is that tradition may be kept when it serves the commandment, and must be rejected when it overrides it, and that the teachers in Moses' seat have real but limited authority.  That is close to the weak, constitutive version of the rabbinic claim, and close to the Karaite Bashyatchi's rule that tradition may not overcome the written text.  It is opposed to the strong version, which makes the tradition equal in origin and authority to the written Torah.

Where the comparison holds and where it fails

• It holds for unwritten apostolic tradition. A Catholic or Orthodox Christian who accepts Tertullian's and Basil's customs as apostolic on the church's word cannot consistently reject the Oral Torah because its Sinai origin is first claimed centuries later. Both claims fail the same test.
• It holds in part for the canon. Protestants rely on the early church's reception for their list of books, and should say so. But reception of dated documents is a different and more testable thing than the transmission of an unwritten law.
• It fails for the New Testament's own content. The Gospels and Paul's letters were written within decades of the events, and their claims can be tested with ordinary historical methods. The Oral Torah's claim to Sinai cannot be tested at all before about AD 200, and where it can be tested after that, it fails.

Objections and responses

1. "An oral tradition leaves no written trace by definition.  The silence of early sources proves nothing."  This is the strongest objection, and it is partly right.  Absence of mention is not proof of absence.  But the case against the strong claim does not rest on silence.  The early sources are not silent about the Pharisees' traditions:  Josephus, Mark and Paul all describe them, and all three trace them to "the fathers" or "the elders", not to Moses.  The Bible is not silent about the transmission of the law:  it describes a written book read in public, a court in each generation, and two breaks repaired from a scroll.  The rabbis are not silent either:  they record forgotten laws, votes and enactments.  The argument is from what the sources say, not from what they leave out.

2. "Josephus was writing for Romans, and Mark is Christian polemic."  Both points are fair, and neither saves the claim.  Josephus says that at nineteen he "began to conduct myself according to the rules of the sect of the Pharisees", so he was no outsider to them.³⁷  Steve Mason argues that this meant only public conformity:  "this does not make him a Pharisee any more than it makes the Sadducees Pharisees."¹²  Either way, Josephus knew the Pharisees from close quarters.  Paul, a Pharisee, uses the same language as Mark and Josephus.  Three witnesses with different interests agree that the traditions were called ancestral.  None of them, friendly or hostile, says the Pharisees claimed Sinai.

3. "Jacob Neusner's method was hyper-sceptical, and later scholars rejected it."  Many scholars did criticise Neusner for treating every rabbinic attribution as unreliable until proven, and this article does not rely on that method.  The points taken from him here, that Josephus names "the fathers" and that the pre-70 material concentrates on food and purity, are matters of what the texts say, and Cohen, Sanders and Mason reach the same conclusions by other routes.

4. "Most Jewish law is undisputed;  the disputes are about details."  Rabbi Dovid Rosenfeld of Aish.com makes this point:  "the vast majority of the laws of the Torah are undisputed. The debates are generally on minute details, infrequent laws, rabbinical extensions, and precise sources."²⁶  For broad practices, such as keeping the Sabbath or slaughtering with a knife, this is true, and it supports the middle version for those practices.  But the strong claim is precisely a claim about the details, and that is where the disputes are.  The count in this article measures paragraphs, not laws, and a single paragraph may hold one disputed detail among several agreed ones;  even so, nearly half of the Mishnah's legal paragraphs record a named disagreement.  And the claim that matters received from Moses were never disputed fails on its own examples:  an eye for an eye, black straps, and the order of the tefillin passages.

5. "A whole nation cannot be fooled about what it received.  This is the Kuzari argument."  The argument, from Judah Halevi, is that a national tradition of a public event could not have been invented without the nation noticing.  Whatever its force for the public revelation at Sinai, it does not carry over to the content of the oral law.  The oral law was never held by the whole nation:  the Sadducees, the Qumran sect and later the Karaites all rejected the Pharisaic version.  And the Mishnah's own Sinai traditions were not public knowledge.  In Peah 2:6, a ruling given at Sinai was unknown to Rabban Gamaliel and the high court until "Nahum the scribe" produced it.  In Yadayim 4:3, the sages voted on a question that Rabbi Eliezer later said Moses had settled.

6. "Halakhah le-Moshe mi-Sinai is often a figure of speech for 'certain', so counting it misleads."  Halivni says exactly this about two of the Mishnah's three uses, and it is probably right.  But it cuts the other way.  If even the phrase halakhah le-Moshe mi-Sinai does not always mean that the law was given to Moses at Sinai, then the Mishnah's explicit claims to Mosaic origin shrink from three to one.

7. "The Dead Sea Scrolls prove that rabbinic law is ancient.  If some of it goes back to 150 BC, why not to Moses?"  4QMMT shows that the Pharisaic side of some disputes is at least that old, which is a real point for the tradition.  It cannot push the rulings further back, and it shows something else too:  a rival priestly group, with an equal claim to the inheritance of Moses, held the opposite rulings and argued for them from the written Torah.  In the second century BC the law of Moses was already disputed between Jewish groups each claiming to keep it faithfully.

8. "This article assumes that Moses wrote the Torah at Sinai, which most critical scholars deny."  It does, deliberately.  The rabbinic claim assumes it, so the fairest test grants the premise and asks whether the conclusion follows.  A reader who dates the Torah centuries after Moses will find the strong claim weaker still, since the oral law could then be no older than the written text it explains.

9. "The count of disputes is crude."  It is a simple text rule, and its limits are stated in the note to Part 5.  Both the strict and the broad rule are given.  The strict rule, which undercounts, still finds more than a quarter of the Mishnah's legal paragraphs naming at least two sides.

10. "Christians cannot object to tradition, because they depend on it too."  This objection is answered in Part 8.  In short, it is true of the Catholic and Orthodox claim to unwritten apostolic tradition, which fails the same historical test, and partly true of Protestants, whose list of books depends on the early church's reception of them.

Issues and unanswered questions

• Safrai's defence was not read. Shmuel Safrai's chapter "Oral Tora" in The Literature of the Sages (1987) is the fullest academic statement of the case for the antiquity of the oral tradition by an Orthodox historian. No readable copy was found. The case for the claim in Part 2 is built from the primary texts and from Hirsch, Halevi, Saadia, Kaplan and Rosenfeld instead.
• Several key studies were not read. Martin Jaffee's Torah in the Mouth (2001), Amram Tropper's study of the date and form of Avot (2004), Elias Bickerman's 1952 article comparing Avot's chain to Greek lists of philosophical successors, Albert Baumgarten's "The Pharisaic Paradosis" (1987), Lawrence Schiffman's 1990 article on 4QMMT and the official edition of 4QMMT (Qimron and Strugnell, 1994) were not available. The MMT rulings are quoted from Vermes's translation of a reconstructed text.
• The date of Avot is not settled here. Many scholars place its composition a generation after the rest of the Mishnah, which would make Avot 1:1 a third-century text. This article treats the chain as rabbinic tradition of about AD 200 to 250 and does not depend on a closer date.
• Anan's saying is unverified. "Search thoroughly in the Torah and do not rely on my opinion" is widely quoted as Anan ben David's and was not found in Nemoy's translations.
• The middle version has no test that settles it. Some broad practices, such as how to slaughter or the outline of Sabbath rest, may well go back to Moses. No evidence available can say which ones.
• The dispute count is a text rule, not a reading. It counts paragraphs, not laws, and it does not separate disputes about principles from disputes about details. A full classification of the Mishnah's disputes would be a better measure.
• The tefillin test is partial. The finds test the passages and their order, not the square shape or the black straps, which are the details the Talmud calls Sinaitic.
• Neusner's method remains disputed. The figures quoted from him are counts of rabbinic material, which do not depend on his scepticism about attributions, but his larger reconstruction of Pharisaism does.
• The Epistle of Rav Sherira Gaon (about AD 987), the Babylonian academies' own history of how the Mishnah and Talmud were transmitted, says both that the Mishnah and Talmud were memorised rather than written and that Rabbi Judah the Prince arranged the Mishnah. It was not used as evidence here, because the sense of its terms for "arranged" and "written" needs a scholarly edition.

Verdict

Judaism has always had an oral law in the plain sense:  an inherited way of keeping a written law that cannot be kept from the text alone.  The Bible assumes it, the prophets enforce parts of it, Josephus and the Gospels describe it, and the Dead Sea Scrolls show that some of its rulings were already argued over in the second century BC.  On this, the rabbis are right and their Karaite critics are wrong.

The claim that this inheritance was given to Moses at Sinai, in its content and details, and handed down intact to the Mishnah, is a different claim.  The evidence runs against it.  The Bible describes a written Teaching, read in public, and a court in each generation, and it records breaks in practice repaired from a scroll.  Every witness from before AD 70 calls the Pharisees' traditions ancestral, and none calls them Mosaic.  The doctrine of two Torahs from Sinai first appears in rabbinic works of about AD 200 to 250, and its sweeping form comes from the generation after the Mishnah.  The Mishnah itself is a record of second-century debate:  nearly half its legal paragraphs name a disagreement, it credits laws to Hillel and Yohanan ben Zakkai, and its authors say that whole areas of law hang "by a hair".  The Talmud explains the disputes as forgetting, and an Orthodox defender concedes that even laws called Sinaitic were forgotten and argued over.

What survives is the weak version:  that God gave Israel's judges authority to interpret and decide.  That is close to the Bible's own picture, it explains the disputes and enactments without strain, and history can neither confirm nor refute it.  Whether the rabbis inherited that authority is a theological question, and a Christian answers it differently from an Orthodox Jew.  The answer does not depend on the claim that the Mishnah came from Sinai, and that claim is not supported by the evidence.

Sources