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The study of the Oral Law may be one of the biggest enterprises in the history of mankind. Spanning over two millenniums and several continents, the study of the Mishna and Talmud has always been the principal occupation of the majority of the traditional Jewish populations. Tens of thousands of books have been written for the sole purpose of their elucidation. Despite all this, a most curious and important facet of both the Mishna and Talmud has been left without any complete exposition. The question that remains is as follows- What exactly was the role of the Rabbis in their exposition of the law? Were they innovators or preservers? Were they simply putting on paper a centuries old tradition that had heretofore been transmitted orally? Or did they have a much more active role in deciding the Law?

It is likely that there is no single answer to this question. The Mishna and Talmud may consist of a combination of oral traditions, new laws developed through the applications of various hermeneutic principles (which themselves are subject to the same question – to wit were they handed down or is there a logic behind them?) as well as various enactments as changing times brought new problems to the fore.

In the case of the Talmud there is a still larger difficulty that has been barely addressed at all. In their exposition of the Mishna, the Amoraim make what appear to be entirely arbitrary changes. Names are switched around, whole lines are added in, and similar changes without any justification provided. Were the changes made based on variant texts that the Amoraim had in their possession? Or was the Mishna at that time still transmitted orally and the difficulty lies in the faulty memory of the Rabbis?

While these and other questions have been discussed in part in various books, a comprehensive exposition of the rabbinic methodology is still very much a desideratum. As the old adage goes “A wise man’s question is itself half an answer” Though I lack the ability to gather and arrange all the various information that exists on this subject, I hope that by raising the proper questions we are already one step towards the answer.

Mishna

Chain of Tradition

The Mishna in the beginning of Avot and (in more detail) Maimonides in his Introduction to Mishna Torah records a chain of tradition (mesorah) from Moses at Mt. Sinai down to R' Ashi redactor of the Talmud and last of the Amoraim. The Mishna is does not clarify what this tradition consists of. I can call to mind several possibilities – 1. The Bible states: “According to the law they instruct you and according to the judgment they say to you, you shall do; you shall not divert from the word they tell you, either right or left (Deuteronomy 17:10-11). This means that certain sages have the authority to interpret the Bible and decide law based on their interpretation or to make enactments as they see fit. There existed a process to transfer this authority to different sages known as the semicha. The Mishna may be tracing to the transferral of semicha through the ages.

2. The Mishna may be referring to the hermeneutic principles which could be used to extract different laws from the Bible. Also included in this are several laws with Mosaic authority that cannot be derived from the Biblical text. These include the measurements (e.g. what amount of an unkosher food must one eat to be liable), the amount and order of the scrolls to be placed in the phylacteries, etc.)

3. The transferral process included the entire Oral Torah with the exception of several later enactments.

Exegesis

In Midrash Halacha (and to a much lesser extent the Medrashei Aggadah) different laws are derived from the Biblical text using various hermeneutic principles. We will cite here a brief summary:

In the Midrash Halakah three divisions may be distinguished:

• The midrash of the older Halakah, that is, the midrash of the Soferim and the Tannaim of the first two generations

• The midrash of the younger Halakah, or the midrash of the Tannaim of the three following generations

• The midrash of several younger tannaim and of a large number of amoraim who did not interpret a Biblical passage as an actual proof of the Halakah, but merely as a suggestion or a support for it ("zeker le-dabar"; "asmakta").

The older Halakha sought only to define the compass and scope of individual laws, asking under what circumstances of practical life a given rule was to be applied and what would be its consequences. The earlier Midrash, therefore, aims at an exact definition of the laws contained in the Scriptures by an accurate interpretation of the text and a correct determination of the meaning of the various words. The form of exegesis adopted is frequently one of simple lexicography, and is remarkably brief.

The younger Halakah did not confine itself to the mere literal meaning of single passages, but sought to draw conclusions from the wording of the texts in question by logical deductions, by combinations with other passages, etc. Hence its midrash differs from the simple exegesis of the older Halakah. It treats the Bible according to certain general principles, which in the course of time became more and more amplified and developed (see Talmud); and its interpretations depart further and further from the simple meaning of the words.

It is to a law stated in this form - i.e., together with the Biblical passage from which it is derived - that the name midrash is applied, whereas one which, though ultimately based on the Bible, is cited independently as an established statute is called a halakah. Collections of halakot of the second sort are the Mishnah and the Tosefta; compilations of the first sort are the halakic midrashim. This name they receive to distinguish them from the haggadic midrashim, since they contain halakot for the most part, although there are haggadic portions in them. In these collections the line between independent Halakah and Midrash Halakah is not sharply drawn.

Many mishnayot (single paragraph units) in the Mishnah and in the Tosefta are midrashic halakot. On the other hand, the halakic midrashim contain independent halakot without statements of their Scriptural bases. This confusion is explained by the fact that the redactors of the two forms of halakot borrowed passages from one another.

The Mishna occasionally cites verses from the Bible in support of its position .

Bibliography

• דרכי המשנה-ר' זכריה פרקאל
• מאמר על פרשנות התלמוד ולשאלת כתיבת המשנה - הג' ר' יחיאל יעקב ויינברג-בתוך שו"ת שרידי אש ח"ד (מוסד ר' קוק)
• מקורות ומוסיפים-ר' דוד וייס הלבני
• (דברי שלום ואמת- ר' שלמה יהודה לייב רפפורט (שי"ר
• מורה נבוכי הזמן -ר' נחמן קרוכמל
• Collected Writing Vol. 5 and 6 – ר' שמשון רפאל הירש
• יסוד המשנה ועריכתה-ר' ראובן מרגליות
• דור דור ודורשיו- אייזיק הירש וייס
• דורות הראשונים-ר' יצחק אייזיק הלוי