I will begin our discussion by quoting the beautiful words of Rav Hirsch, explaining the relationship between the words of our written Torah and the laws of our Gemara:
The relationship between the Written Torah and the Oral Torah is like that between brief written notes taken on a scientific lecture, and the lecture itself. Students who attended the oral lecture require only their brief notes to recall at any time the entire lecture. They often find that a word, a question mark, an exclamation mark, a period, or the underscoring of a word is sufficient to bring to mind a whole series of ideas, observations, qualifications, and so forth. But for those who did not attend the instructor’s lecture, these notes are not of much use. If they try to reconstruct the lecture solely from these notes, they will of necessity make many errors. Words, marks, and so forth, that serve the students who listened to the lecture as most instructive guiding stars for the retention of the truths expounded by the lecturer appear completely meaningless to the uninitiated. The non-initiate who will attempt to use these same notes in order to construct (as opposed to reconstruct) for himself the lecture he did not attend will dismiss what seems unclear as baseless mental gymnastics and idle speculations leading nowhere. 1
Thus, we see that the Oral Torah is indispensable for a proper understanding of the Written Torah.
The Rambam 2 divides all the myriad laws of the Torah into three basic categories:
1. Those that we know on the basis of mesorah, that is, we have a direct tradition from each generation’s greatest Torah leaders to its teachers of the previous generation, and this tradition can be traced directly back to Moshe Rabbeinu, who, in turn, was taught these laws by Hashem during his sojourn on Har Sinai. For this reason, the Rambam, both in the Introduction to his Mishneh Torah and in the Introduction to his Commentary to the Mishnah, lists the entire chain of the mesorah from Moshe Rabbeinu until the completion of the Talmud. Every law included in this first category was, itself, transmitted by the leaders of each generation to the next in an unbroken chain.
2. Those laws that are derived from the Written Torah on the basis of rules that we were given at Har Sinai. In this instance, we were provided with the Written Torah as the lecture notes described above by Rav Hirsch, and accompanied by a detailed explanation of how to apply logic to derive and understand more details of these mitzvos. Any laws derived this way qualify as min haTorah.
3. Those laws that were introduced by the Sages of each generation in fulfilling their role, as mandated by the Torah, to safeguard the observing of its commandments. This category includes also completely new mitzvos that Chazal introduced, such as kindling the Chanukah menorah, the various observances of Purim and washing one’s hands before partaking of bread.
The Rambam notes that there is a very sharp distinction between the first two categories, notwithstanding the fact that the laws of both are min haTorah. There cannot be any dispute about the veracity of any law that is in the first category, since all laws are based on mesorah. To quote the Rambam, divrei kabbalah lo naflah bahem machlokes le’olam, there can never be a dispute regarding concepts that are based on our Oral Tradition.
On the other hand, as the second category is based on logic, there will, of necessity, be differing opinions as to how to interpret and understand halachic concepts. As our Sages teach, just as no two people look the same, no two people think the same. 3 Therefore, any time we discover a dispute between sages of the Mishnah or Gemara, the law being debated must fall under either the second category or the third, but it can never belong to the first.
A related difference between the two categories is that a Beis Din Hagadol of a later generation has the right and ability to overturn the ruling that is of the second category, but it cannot overturn a law that is based on mesorah from Har Sinai.
In the Introduction to his Commentary to the Mishnah, the Rambam divides the first category into two different subcategories, both of which include only laws that we were taught by mesorah. The Rambam calls the first subcategory peirushim hamekubalim, explanations of the verse that we know to be true on the basis of our mesorah. The second subcategory includes all laws that we know exclusively from mesorah without any allusion at all in the "lecture notes" – that is, the Written Torah.
Allow me to explain the difference between these two subcategories: The Torah instructs us to take on Sukkos the fruit of a beautiful tree, branches of date palms, twigs of a plaited tree and willows of a stream. In these two instances -- the fruit of a beautiful tree and the twigs of a plaited tree -- the notes provided by the Torah are insufficient on their own to identify which items are intended. However, those who attended the original "lecture" were told that the fruit of a beautiful tree means an esrog, and that the twigs of a plaited tree refers to hadasim. The mesorah explaining these oral lecture notes was transmitted by Moshe to Yeshoshua and the other great leaders of his era. They then transmitted this to the leaders of the next generation, and so on, until they were codified in the Mishnah and later in the Gemara. This subcategory is called peirushim hamekubalim.
On the other hand, there are concepts that are not alluded to in the lecture notes of the Written Torah. These were supplied completely via mesorah. For example, the laws of sukkah, or, more accurately, of the construction of "walls," include concepts called gud and lavud. These laws have no basis in the Written Torah. This means that there is no mention whatsoever in the lecture notes and they therefore comprise the second subcategory. Chazal call this latter subcategory halacha leMoshe miSinai, meaning laws that are known only because of the mesorah of what Moshe was taught at Har Sinai.
Again, both of these two subcategories are laws that we know on the basis of mesorah, and whose veracity is never disputed, in the Rambam’s opinion. The difference between the two subcategories is that what is included under peirushim hamekubalim is something that we may have understood without mesorah on the basis of logic and the Written Torah, whereas we would never have known about a halacha leMoshe miSinai without our mesorah. Thus, the Gemara 4 demonstrates several ways in which one may derive that the "fruit of a beautiful tree" is indeed an esrog, even had we not been provided this information in our mesorah. However, we would never have known the laws of gud and lavud without a mesorah.
The mitzvah to pour water on the altar on Sukkos provides insight into another curiosity. The Gemara 5 cites approaches that derive this mitzvah by means of lecture notes in the Written Torah. Rabbi Yehudah ben Beseirah derives the mitzvah from the otherwise unnecessary letters mem, yud and mem (spelling mayim, water) in the words describing the wine libations on the second, sixth and seventh days of Sukkos. A different opinion, that of Rabbi Nechunya, says that this mitzvah is completely halacha leMoshe miSinai. 6
According to both opinions, the law is the same, and it was taught via a mesorah from Sinai. The dispute between the two opinions is under which subcategory this mitzvah should be included. Is it similar to esrog and hadas, in that a careful reading of Written Torah will teach the existence of this mitzvah, or is it like gud and lavud, that even the most careful reading of the Written Torah would not teach this law without our oral mesorah?
What if we forget a mesorah?
The Gemara 7 states that thousands of laws were forgotten during the days that the Jewish people mourned Moshe Rabbeinu’s passing. However, the majority were restored through the brilliant analysis of Asniel ben Kenaz. Are these now mesorah, or based on logic? The answer is that although they were originally mesorah, they are now based on logic, notwithstanding the fact that there is no dispute about them.
None of us is as brilliant as Asniel. We accept that this is part of the halacha because we know that the Beis Din Hagadol accepted Asniel’s logic. This concept will become important in the rest of our discussion.
So far, we have explained the two subcategories, both of which are aspects of the first category – laws that are part of the mesorah that we were taught at Har Sinai. As I mentioned above, the second category of the Torah’s laws are laws that are derived from the notes of the written Torah on the basis of the principles that the Torah taught. Since these laws are interpreted through logic, there will be disputes that occur. Whenever we find a dispute recorded in the Mishnah and the Gemara, it can only be regarding a law that falls under either the second or third of the Rambam’s three categories. If a dispute regards a Torah law, it will always be in regard to a law that is part of the second category, and the dispute will be based either on two differing interpretations of a verse, on two differing interpretations of a halacha leMoshe miSinai, 8 or on a dispute how to apply one of the rules that the Torah provided for interpreting the Written Torah. According to the Rambam, there is never a dispute with a position that is based on mesorah.
It occasionally happened that a great Torah leader received the mesorah of a halacha and a different leader was aware of the halacha but had not received the mesorah upon which it is based. In such an instance, the opinion that cites a mesorah as the source becomes the halachic basis for the law. 9
When there is a dispute among gedolei Yisrael concerning how to interpret the words or concepts of the Torah, it is the duty of the Beis Din Hagadol, also known as the Sanhedrin, to decide which approach is the final halacha that Klal Yisrael will follow. In the era that the Beis Din Hagadol functioned, all disputed matters were brought to its attention for a ruling. Unfortunately, the Beis Din Hagadol has not functioned for many hundreds of years, and that is why, today, we are often left with unresolved disputes. 10
The Torah teaches that a great scholar who refuses to follow the ruling of the Sanhedrin and persists in ruling differently from their decision is guilty of a capital offense and is called a zakein mamrei. 11 The reason why the Torah treats this offense so seriously is that otherwise Klal Yisrael would become divided into many divergent groups, and we would lose our unified Torah. 12
The Story of Akavya
Let us digress to explain an often misunderstood Mishnah. The Mishnah 13 teaches that Akavya ben Mahalallel, considered perhaps the greatest Torah scholar of his generation, disagreed with the other Torah leaders of his generation and was a minority of one in four different disputes. The other Sages recognized Akavya's tremendous scholarship and offered to make him the Av Beis Din, the head of the Sanhedrin, on the condition that he simply recant his position in these four areas. He rejected this offer because he considered it tantamount to falsifying the Torah. 14 Yet, when Akavya lay dying, he instructed his son to reject his positions on all four issues in favor of those of the other Sages. When his son asked him why Akavya, himself, would not withdraw his opinion, yet instructed his son to do so, Akavya answered: The opinion that I hold is because I heard this from the majority of Sages of an earlier generation, and therefore I am bound by what I heard. However, you heard this position only from me, and I am now a minority. You are bound by what you heard to be the majority position, which disagrees with me, and you should therefore follow the position of the majority. 15
It is apparent that the dispute between Akavya and the other Sages was not over a question of mesorah, for then there could have been no dispute. The dispute between them was based originally on a position that had been arrived at through logic. Akavya and the other Sages disputed what was the conclusion of the earlier generation. Since this was a position based on logic, they were freely able to do so. 16
Was Akavyah a zakein mamrei?
Since Akavyah refused to accept the authority of the rest of the Sanhedrin, why did he not qualify as a zakein mamrei? The Gemara 17 asks this question and cites a dispute on the subject. The approach that is accepted is that, notwithstanding the fact that Akavyah opposed the decision of the Sanhedrin, he refrained from ruling for people. Although he would explain that he disagreed with the ruling of the members of the Sanhedrin, he would never tell someone to follow his position against theirs.
Can the Transmission be Faulty?
The Rambam emphasizes the vast difference that exists between these two categories: laws that are based on mesorah and those that are arrived at by logically applying the rules of halachic interpretation. To quote him:
Some think that there could be a dispute that is based on an error in the transmission of the laws or based on forgetfulness or because one scholar received the mesorah truthfully whereas a different scholar erred or forgot or simply never heard all that he should have heard… this is an improper approach and these are words of someone who is without common sense and is missing the basics. He is defaming the great men from whom we received the commandments. This entire approach is null and void. What caused people to make this terrible error is insufficient examination of the words of the Sages that are found in the Talmud. They found that every peirush hamekubal [the first category] that originates from Moshe is true, and they did not realize that there is a difference between the basics [laws in the first category] and those that are derived by logical analysis [the second category]. 18
Notwithstanding the sternness with which the Rambam presents this position, we will see that not all Rishonim accepted his premise. In other words, other Rishonim understood that there could be a dispute among great gedolei Yisrael in which both sides claim that they received the halachic information as a mesorah.
Here is one case where we see this. On Pesach, the Torah prohibits consuming either chometz or sourdough, the inedible yeast-like product that develops when one allows dough to over-leaven. One who consumes an olive-sized quantity of chometz on Pesach is liable for the punishment of kareis. The Mishnah 19 records a dispute between Beis Hillel and Beis Shammai concerning the minimum quantity for a person to be legally responsible for consuming sourdough on Pesach -- is it the size of an olive or the size of a date? In two different places, the Gemara debates at length what is the basis for the dispute, concluding that it is contingent on how one interprets the germane verses. However, Tosafos 20 asks why the Gemara did not present a simpler approach: Since we have a general statement that the sizes of the measurements of the Torah are generally derived as halacha leMoshe miSinai, why did the Gemara not simply explain the dispute between Beis Hillel and Beis Shammai as being what the original mesorah from Sinai had been, Beis Shammai accepting the mesorah to have been the size of a date, and Beis Hillel the size of an olive. Regardless of how Tosafos answers this question, obviously Tosafos accepts the possibility that two disputing authorities could have disagreeing traditions concerning what we were taught at Sinai, and that it is not anathema to say that someone’s mesorah on a halacha leMoshe miSinai is wrong.
We will now explore another halachic discussion where we see the predominantly accepted approach does not agree with the Rambam. Here is the background to the subject:
The Torah 21 rules that if an animal trespasses into private property, its owner must compensate for the damage it caused. The discussion that concerns us is about damage that resulted from an animal kicking pebbles or moving some other item that, as a result, damaged property. The Mishnah 22 rules that the owner of the animal is obligated to pay for only half the damage caused when this happens, a concept called chatzi nezek tzeroros, half of the damage caused by pebbles.
What is the basis for this ruling? The Gemara 23 states hilchesa gemira la, it is a law that we know from tradition, which Rashi 24 explains to mean that it is a halacha leMoshe miSinai. 25
The Gemara 26 mentions that there is one Tanna, Sumchus, who disagrees with the concept of chatzi nezek tzeroros, and requires the owner to pay full damages. 27 This, of course, leads us to a question. Once the Rambam has ruled that there can be no dispute regarding a halacha leMoshe miSinai, how could there be a dispute between Sumchus and the other Sages regarding the concept of chatzi nezek tzeroros?
The Netziv 28 answers this question by noting that the Gemara never says that chatzi nezek tzeroros is a halacha leMoshe miSinai. Rather, the words of the Gemara are hilchesa gemira la, a law that we know from tradition. He explains that, in the Rambam’s opinion, there was never a halacha leMoshe miSinai concerning chatzi nezek tzeroros. An earlier generation’s Beis Din Hagadol had ruled that when an animal damages through tzeroros the owner is required to compensate for only half the damage. This earlier ruling was based on reason, although we are no longer aware of the logical basis. This could perhaps be compared to the type of analysis with which Asniel restored thousands of forgotten laws, and upon which the elders that Akavya quoted had ruled.
Sumchus disputed the ruling of the earlier Beis Din. The Sages, who held that the owner should pay half damages, held this opinion because of an old tradition that they had received from earlier generations – but no one claimed that this tradition’s source was from Moshe Rabbeinu at Har Sinai.
This approach resolves how the Rambam would explain this Gemara, but leads us to a new, interesting conclusion. Although the Rambam feels very strongly that there can be no argument regarding anything claimed to be a halacha leMoshe miSinai, Rashi here disagrees with this assumption, since he understands the leniency of tzeroros to be a halacha leMoshe miSinai, yet Sumchus denies that this leniency exists. This dispute means that although one authority claims that he knows a certain law to be a tradition from Sinai, a different sage could question whether this tradition is accurate.
An early acharon, Rav Yair Chayim Bachrach, 29 goes to great length to dispute the Rambam’s position that divrei kabbalah lo naflah bahem machlokes, rallying many sources that he feels prove that this principle is not accurate. On the other hand, the Maharatz Chayes 30 devotes an essay to proving that the Rambam’s principle is correct, despite the fact that he, himself, notes that there are other Rishonim who disagree with the Rambam.
Perhaps one can suggest the following approach to minimize the dispute among the Rishonim. Let us assume, for a moment, that the great Tanna’im knew that a certain halacha is observed, but no longer remembered its source. Would it be wrong to say that someone suggested that its source might have been a halacha leMoshe miSinai, that was since forgotten? If so, perhaps we could explain that both Rashi and the Rambam understood the case of tzeroros in a similar way. The Sages knew that an earlier generation had ruled that the owner is obligated to pay for only half the damages, but they no longer remembered the reason. The Sages suggested that, perhaps, this had originally been taught as a now-forgotten halacha leMoshe miSinai, a position that Sumchus rejected.
The Mesorah and the Esrog
An observant Jew does not need proof that our mesorah is correct. Nevertheless, we often feel some satisfaction when we discover that a secular source verifies our mesorah. The esrog with which most Ashkenazim are familiar looks quite different, both inside and outside, from the esrogim that the Moroccan and the Yemenite communities use, and the Moroccan and Yemenite esrogim look very different from one another. Several years ago, research teams from the University of Catania, Italy, and the Hebrew University conducted a joint study of twelve varieties of esrog, including the standard Moroccan, Yemenite, Italian, Chazon Ish, and other varieties, to see whether they were indeed consistently one species, or whether the DNA indicated that they were of different species and origins. Their pre-research assumption was that these were unrelated species and that Jews had simply used a native available citrus.
The study concluded that the DNA proves that all twelve varieties are in fact one species -- and that they are all genetically separate from all other citrus fruits. To quote the study: 31 "The results obtained are very clear and might be regarded as somewhat surprising. Notwithstanding diverse geographical origin and the considerable morphological variation, especially in fruit size and shape, presence of pulp and persistence of style, all the citron types examined revealed a high degree of similarity. There was no sign of introgression of lemon or other citrus genomes into any of the citrons examined." 32
The mesorah is our link to the past and our guidance regarding how to perform our mitzvos. It is very reassuring to realize that the esrog and the other three species we pick up on Sukkos are the same species that the Jews used in the Desert, in the days of Shlomo Hamelech and in the days of Rabbi Akiva. It would be fascinating to watch a video of Jews in those eras holding their arba’ah minim while standing in their sukkos. Since we can’t watch that video, we can only reconstruct the vision in our minds and thank the mesorah that has kept us identified as Jews in so many different places and eras.
^ 1. Hirsch Commentary to Shemos 21:2, Haberman translation
^ 2. There are several places where the Rambam discusses these ideas, the most extensive of which is in the Introduction to his Commentary to the Mishnah. He also discusses these ideas in Mishneh Torah, Hilchos Mamrim, Chapter 4, and in Sefer Hamitzvos, his second rule.
^ 3.Berachos 58a
^ 4.Sukkah 35a
^ 5.Taanis 2b, 3a
^ 6. There is also a third opinion, Rabbi Nosson, who has a different scriptural source for this mitzvah.
^ 7. Temurah 15b and 16a
^ 8. See Kol Kisvei Maharatz Chayes, Volume 1, pg 115
^ 9.Shiurim Lezeicher Aba Mari, Volume 1, page 230
^ 10.Rambam, Hilchos Mamrim 1:4
^ 11.Devarim 17:12
^ 12.Sefer Hachinuch, Mitzvah 495
^ 13.Eduyos 5:6
^ 14.Yam shel Shlomoh, Bava Kama 4:9, explains the seriousness of this prohibition.
^ 15.Eduyos 5:7
^ 16. See Margaliyos Hayam, Sanhedrin 88a, who cites this explanation in the name of the Sanhedri Ketanah, for reasons independent of the Rambam’s position.
^ 17.Sanhedrin 88a
^ 18. Introduction to his Commentary to the Mishnayos.
^ 19. Beitzah 2a
^ 20. Tosafos, Yoma 79b s.v. Lomar
^ 21.Shemos 22:4
^ 22.Bava Kama 17a
^ 23.Ibid. 17b
^ 24.Bava Kama 3b s.v. Bechatzi
^ 25.The analysis that the Rosh, Bava Kama 2:2 applies to the discussion also clearly demonstrates that he understood the Gemara to mean a halacha leMoshe miSinai.
^ 27.The Gemara actually cites two approaches to explain Sumchus’s position, according to one of which Sumchus accepts the lenient ruling of tzeroros, but disputes when it applies. According to this approach, there would be no problem for the Rambam to accept that tzeroros is a halacha leMoshe miSinai in which two authorities dispute some of its halachic applications. However, the Gemara presents another approach, according to which Sumchus denies the entire halachic principle of tzeroros.
Note also that Rashi, Bava Kama 17b s.v. Sumchus states explicitly that Sumchus disputes the halacha of tzeroros.
^ 28. Introduction to his Commentary on the She’iltos, 1:2
^ 29.Shu’t Chavos Yair, #192
^ 30.Kol Kisvei Maharatz Chayes, Volume I page 111.
^ 31.Proceedings of the International Society of Citriculture, December, '00
^ 32.We should note that even though genetically all the varieties tested are indeed esrogim, we cannot rely on genetic testing to prove the authenticity of a particular esrog, since, if it was grafted onto non-esrog stock, it would be invalid for use on Sukkos according to most authorities.
This Shiur is published also at Rabbi Kaganof's site