Cana Werman, "Oral Torah vs. Written Torah(s)

Werman, Cana, “Oral Torah vs. Written Torah(s): Competing Claims to Authority”, Fraade, Steven D., Shemesh, Aharon & Clemens, Ruth A. (eds.), Rabbinic Perspectives: Rabbinic Literature and the Dead Sea Scrolls, 175-197

What is called “priestly halakhah” is based on the Pentateuch, with laws fashioned in accordance to it, and developed to resolve contradictions and vagueness in it.
In the middle of the second cent. BCE the Pharisees gained more influence in Jerusalem, by the Hasnoneans, and their (Pharisees) halakhah also became influential in the official arena.
Those of the priests who did not want to comply with the new situation retreated to the desert and are known as “the Qumran sect”.
Many rules of the sect are the regular priestly rulings. But for the rest, by their withdrawal from the Jerusalem Temple they cannot claim authority which derives from the Temple or from their civil position.
We find two claims of authority in Qumran:
1. in Jubilees and the Temple Scroll we find the view that the interpretation of the Torah was given to Moses in Sinai. It is the Torah and Te'uda (predestined history): expansion and interpretation of the first Torah, is to stand before the people as a witness when the correct interpretation is forgotten in the future.
2. the view in the Damascus Document is that the teacher of righteousness was instructed by God and developed the tools for interpretation which he imparted only to the members of the sect.

Rabbinic claim to authority:
The Pharisees interpreted and made new laws, but it is not clear what is the origin of their law; some of it must have been quite old.
The Tannaim probably continued the Pharisees culture. They decided about halakhah independently from the Scripture.
They did claim to have a second Torah, an oral one (the Qumran second Torah was written).
Werman claims that the oral Torah was a Sinaitic one (even though there is no such explicit claim), by analyzing two sources.

One (Sifra 112c, ms. Vatican 31) where the tanna qamma claims that there are two torot, and R. Akiva says that there are many; this shows the view of two torot as axiomatic.

Two (Sifre Deut, Finkelstein, 408) where we find the claim for two torot pronounced by the authoritative sage Rabban Gamliet; we also find here the reducing of the priestly authority to a few legal incidents only.

Sometime we find talk about a single Torah in rabbinic literature, for example Sifre Deut 306 (and other examples) where the Torah and the interpretation came as one unit, and the Scripture consists of all halakhot and midrash.

R. Akiva rejected the notion of two torot.

R. Ishmael and Claims to Authority
R. Ishmael accepts (or at least does not reject) the notion of two torot.
Werman checks R. Ishmael's methodology regarding two halakhic issues, and compares it with the view of Qumran and of R. Akiva.

1. Law of the beautiful captive
in Qumran (temple scroll) she is forbidden to prepare food, so practically she is forbidden to marriage. This is against what is stated in the bible (deut 21:10-14).
Midrash Tannaim (of the school of Ishmael) accepts the biblical law, and is also aware of a possibility for her to convert (which is an innovation not found in the biblical text).
The way of R. Akiva:
turns the words “mother and father”, which she has to lament, into “idolatry” (Sifre on Deut 213), which in fact leaves for her only the option of conversion. R. Akiva finds a prooftext for his opinion.

2. the covering of the blood (slaughtering a nonconsecrated animal).
The Qumran view accepts that animals can only be slaughtered at the altar in the temple. This is restricting the biblical permission granted in Deuteronomy 12 (which contradicts Leviticus 17:11).

R. Ishmael accepts both biblical views, not interpreting one in light of the other (as they did in Qumran). (ms Oxford assigns the lift of the prohibition to the sages, not to the Scripture).

R. Akiva finds no contradiction between Leviticus and Deuteronomy, claiming that it was always possible to eat meat anywhere.

R. Akiva assumes the unity of the Torah, and uses interpretative methods to arrive at this unity, and R. Ishmael subjects the Scripture to a careful reading, and on the other hand accepts a set of halakhot circumventing (or expands) the Scripture, an alternative to it.

In light of these findings Werman suggests to reexamine some concepts:
1. Halakhot
the Tosefta speaks of two type: halakhot with scriptural support (torts, the Temple service, purity laws et al.) and those without it, and then they have a very scanty scriptural support, but there are many halakhot (Shabbat, Festival offerings).
R. Jehoshua endeavors to impart authority to the non-supported halakhot as well.

The Mishna does not declare the non-supported halakhot as non-supported, because they are supported (on a scanty scriptural basis). It maintains the unity-of-Torah approach, not allowing other authorities for the halakha.

The term halakha in the Tosefta applies to all laws, scriptural or other; in the Mishna – only to laws that are based on the scripture (since all halakhot are).

2. prohibition against writing:
oral torah is an early tannaitic concept. Attributing the tradition to the fathers, which ultimately is derived from Sinai. There is no actual prohibition on writing, but it fits well for it not to be written (“Nontheless the advocate of the 'oral Torah' claim might be cautious when writing, especially during the writing of nonmidrashic [=non scriptural] collections of laws).
Also the R. Akiva's approach (no two torot, unity of the Torah) would not issue a blanket prohibition against writing.


Summary (which is not summarized here)