Reconciling the Written and Oral Laws

And Hashem said to Moshe: Ascend the mountain to Me and be there. And I will give you the stone Tablets and the torah and mitzvah that I have written for you to teach to them. (Sefer Shemot 24:12)

1. The Torah is comprised of a Written and Oral Law Parshat Mishpatim continues the enumeration and explanation of the Torah’s commandments and laws that began at the end of Parshat Yitro. The end of Parshat Mishpatim returns to the events at Sinai. In these passages, Moshe is instructed to ascend the mountain and there he will receive the Luchot – the Tablets of the Decalogue, the “torah and the mitzvah”. The term “torah” generally is used to refer to the entire body of law that includes the individual mitzvot. However, in this passage it is clear that the terms “torah” and “mitzvah” refer to two mutually exclusive entities. In this context to what do these terms refer?

Rabbaynu Avraham ibn Ezra and others respond that the term “torah” refers here to the Written Law. The term mitzvah refers here to the Oral Law.[1] This interpretation is drawn from the comments of midrash.[2] Maimonides expands on these comments. In his very first remarks introducing his code of law – Mishne Torah – he interprets the above passage. He explains that, in the above passage, the term “torah” refers to the Written Law and that the term “mitzvah” refers to its explanation.

2. The relationship between the Written and Oral Laws Maimonides’ comments add to the interpretation of Ibn Ezra. Maimonides comments include a description of the relationship between the Written and the Oral Laws. The Oral Law provides the interpretation of the Written Law. In itself, the Written Law is often vague or confusing. The Oral Law provides the interpretation and commentary required to understand and properly observe the Written Law.

Six days you shall perform your tasks and on the seventh you shall rest. (This is) so that your oxen, and donkeys will rest and the son of your maidservant and your convert. (Sefer Shemot 23:12)

Shabbat is one of the commandments included in the Decalogue. Parshat Mishpatim returns to the discussion of Shabbat. Shabbat is a day of rest. Nowhere does the Torah actually describe in precise terms the meaning of the admonition to rest on Shabbat. However, the Oral Law provides directions for fulfilling the commandment. It is the Oral Law that identifies the thirty-nine major categories of prohibited activities and their many derivatives. This is an example of the relationship between the Written and Oral Laws. The Written Law provides a brief and basic description of the commandment. In the instance of Shabbat, the Written Law commands that we rest on Shabbat. The Oral Law provides the additional detail that is essential for observance of the commandment. In the example of Shabbat, it provides a description of those activities from which we are required to rest.

And his master shall bring him close to the judges. And he shall bring him close to the door or to the doorpost. And he shall pierce his ear with an awl. And he will be his slave forever. (Shemot 21:6)

3. The freeing of the Jewish servant with the arrival of the Jubilee year The above passage provides another fascinating example of the relationship between the Written and Oral Laws. The parasha describes the laws governing a Jewish slave or servant. The Torah allows for a Jewish male to be sold into servitude in two circumstances. A Jewish man can be sold by the court. This occurs if the individual is convicted of stealing and cannot repay the victim. The court sells the thief into servitude to another Jew. The proceeds of the sale are used to reimburse the victim of the theft. There is a second circumstance in which servitude is permitted. If an individual is in debt and cannot repay his creditors, he may sell himself. The proceeds are used to repay the creditors.

In both of these cases the sale is for a six-year period. If the Jewish servant wishes to remain with his master, then the master and servant must consult bait din – the court. The above pasuk describes the procedure for extending the term of the servitude. The pasuk explains that the ear of the servant is pierced against the doorpost of the court. The pasuk states that as a result of this procedure the term of servitude is extended “forever”. Targum Unkelus interprets the passage in a very literal sense. According to this interpretation, the passage indeed requires that the servant remain in bondage indefinitely. Rashbam suggests a very similar interpretation. He explains the passage as meaning that the servant remains in servitude for the duration of his life.[3] However, both of these interpretations seem to contradict the interpretation of the passage provided by the Oral Law. The Oral Law teaches that the servitude is extended only to the Yovel – the Jubilee. At the Jubilee the servant must be freed. The Talmud explains that the term “forever” is not to be understood literally. It should be interpreted to mean until Yovel.[4]

4. A reconciliation of the Written and Oral Laws How can the message of the Written Law as confirmed by Unkelus and Rashbam be harmonized with the Oral Law’s interpretation of the passage? A possible answer is provided by an interesting comment of Nachmanides. Nachmanides explains that the above passage is not the source for the requirement of freeing the slave at the Jubilee. Instead, the source is found in Sefer VaYikra. There, the Torah explains the restoration law. This law states that at the time of the Jubilee every man returns and is restored to his portion of land in the Land of Israel.[5] In other words, each person is restored his ancestral legacy in the Land. According to Nachmanides, the Talmud concludes from this requirement that the servant too is released and restored to his legacy. Nachmanides acknowledges that the Talmud interprets the term “forever” in the above passage to mean until Yovel. However, he suggests that this interpretation is only intended to reconcile the passage with the restoration law in Sefer VaYikra. [6]

Nachmanides’ assertion that – the servant’s emergence into freedom with the Jubilee is derived from the restoration law in Sefer VaYikra – has an important implication. It suggests that the servant is not freed because his period of servitude has reached its natural termination with the arrival of the Jubilee. Instead, it seems that the servitude has no natural termination – as suggested by the literal interpretation of “forever”. Servitude ends because the Jubilee arrives and the restoration law takes effect. Every person – even the slave – must be restored to his legacy.

An analogy will help clarify this distinction. Marriage creates a relationship between man and woman. This relationship continues indefinitely. These two individuals may terminate the marriage, after any period, through divorce. Nonetheless, it is proper to say that, by nature, a marriage represents an agreement to enter into a relationship for an indefinite period.

The piercing procedure, like marriage, creates a relationship that is indefinite in length. However, as in the case of marriage, this relationship is subject to termination through an outside force. In marriage this outside force is divorce. For the servant, this agent is the Jubilee.

Apparently, Unkelus and Rashbam share Nachmanides’ view. These commentators maintain that the Jubilee does not represent a limitation of the period of the servitude. Indeed, the period of servitude does extend indefinitely or throughout the life of the slave. This is the message of the term “forever” in the passage. However, the Jubilee interrupts the servitude and ends it.

5. An alternative reconciliation of the Written and Oral Laws Rabbaynu Avraham ibn Ezra offers another approach to reconciling the Written Law to the Oral Law. He suggests that term forever – leolam – in the pasuk means until the Yovel. How is this possible? He explains that the term leolam can best be translated as “for an age”. Adopting this translation transforms the meaning of the passage. It is telling us that as a result of the ear piercing procedure the servitude is extended “for an age”. Now, the period represented by the term “age” must be identified. According to Ibn Ezra, an age must be the longest calendar unit recognized by halachah.

Halachah recognizes various calendar units. These units include day, week and month. Halachah also has created two calendar units that are composed of groups of years. Six years followed by a seventh Sabbatical year is recognized as a unit. Seven of these units contain forty-nine years. The fiftieth year is the Yovel. This fifty-year period is the largest calendar unit used by halachah. Ibn Ezra explains that this is the “age” specified in the pasuk.[7]

6. Two distinct approaches to reconciliation These two interpretations suggest different approaches to reconciling the Written and Oral Laws. Nachmanides seems to suggest that the Written Law and Oral Law do actually suggest different messages. Our passage suggests that the servant’s period of servitude extends indefinitely. This does not conform to the actual law derived from the Oral Law. However, the Written Law presented by Parshat Mishpatim is composed in a manner that seems to contradict the Oral Law in order to communicate a deeper and more meaningful understanding of the law. The contrast between the Written and Oral Laws alert the student that the servant’s servitude is not naturally limited to a fifty year period. Instead, it ends at Jubilee because it is interrupted and canceled by the restoration law. Unkelus and Rashbam seem to accept this perspective.

Ibn Ezra’s interpretation suggests an alternative approach to reconciling the Written and Oral Law. His approach resolves the perceived conflict. The Oral Law provides interpretation and meaning. The Oral Law forewarns the reader to replace “forever” with “for an age” and then provides a meaningful interpretation of the term “age”.

 

[1] Rabbaynu Avraham ibn Ezra, Abbreviated Commentary on Sefer Shemot, 24:12.

[2] Rav Menachem Mendel Kasher, Torah Shelymah, volume 5, p 278.

[3] Rabbaynu Shemuel ben Meir (Rashbam) Commentary on Sefer Shemot 21:6.

[4] Mesechet Kiddushin 21b.

[5] Sefer VaYikra 25:10.

[6] Rabbaynu Moshe ben Nachman (Ramban / Nachmanides), Commentary on the Talmud, Mesechet Kiddushin 21b.

[7] Rabbaynu Avraham ibn Ezra, Commentary on Sefer Shemot – Unabridged, 21:6.