Sanhedrin 044

14:
We have already noted that in the year 444 BCE, at the very end of the biblical period, under the religious and political aegis of Ezra and Nehemiah, the Written Torah [Torah she-bikhetav] in the form in which we now possess it was contractually accepted by the assembled representatives of the community of Israel as the statutory instrument of Israel's government, both public and private. Our commitment to the Torah today stems both from the contractual nature of its acceptance then and from our conviction now that it all comes from the Deity. But the immutable Written Torah is not the rule by which Israel lives: the Torah, as understood and interpreted by the oral tradition enshrined in the Unwritten Torah [Torah she-b'al-peh] is Israel's rule of law. In this way, the Written Torah is constantly being re-understood by the rabbis, its licensed practitioners.

15:
The Unwritten Torah (rabbinic law) is, in essence, developmental – dynamic and not static, and is a living continuation of the Written Torah. Torah she-b'al-peh is the means whereby Torah she-bikhetav is made constantly relevant. Should rabbis abdicate this duty, Torah is in grave danger of becoming outdated and irrelevant. This, of course, is one of the major differences between Conservative Judaism and Orthodoxy. Sometimes we are so concerned with the primacy of the Written Torah that we forget that without the Unwritten Torah, the Oral Tradition whose Mishnah we are studying, the Written Torah would have no more relevance for us than any other document. There is nothing intrinsically holy in the Written Torah: there are many other books held to be sacred by many other religions, and their adherents claim them to be sacred. What gives the Written Torah its sanctity for Israel is the Unwritten Torah: we accept the Torah as holy and binding because the sages say it is.

16:
At this point we must elaborate upon this concept. The Written Torah is the ideological basis of Judaism, but in its details it was never intended to be a `'once and for all time' statement. Built into the very mechanism of the Written Torah itself is an assumption, a demand for interpretation.

Here it is quite explicitly stated that the Written Torah is not exhaustive, but at various times in the future will have to be supplemented and expanded by "the judge that shall be at that time". There are many classical rabbinic statements as the true nature of the Oral Tradition, the "updating" of the Torah by "the judge that shall be at that time". We shall here examine a very few of them. Firstly a very apposite quotation from the Talmud of Eretz-Israel [Sanhedrin 22a]:

Even more to the point is the following excerpt from the second chapter of a Midrashic work called Seder Eliahu Zutta.

Just one more quotation should suffice to prove what is really self-evident, that the rabbinic tradition was always intended to "update" the Written Tradition. This oft-quoted passage comes from the Gemara [Menachot 29b]:

17:
All this makes it sound as if the Divine law is very human, and to a certain extent this is true – by design. But Judaism is insistent that the ultimate source of the moral law is truly God. God is the standard against which we must measure our behaviour. The practical expression of this standard is halakhah, which represents the way that this standard requires us to lead our lives. While it is true that halakhah is developed by man, this is limited by two main considerations. Firstly, the concept of Klal Israel requires wide-spread support and agreement – a general conviction that a proposed development is indeed Torah, not the personal whim of one sage or the passing fad of one generation. Secondly, the organic development of halakhah prevents "revolution", and assumes that all three aspects of time are represented in the decision – past, present and future. In traditional Judaism there is no revolution, only evolution – the constant organic development of Torah as representing God's perceived will.

18:
One of the lynch-pins of rabbinic philosophy is the concept of Torah Min ha-Shamayim, that Torah (both written and oral) comes from God. This presents Conservative Judaism with no difficulty. The rabbis state:

This view, although based upon an earlier conceptualization of revelation, holds no terrors for Conservative Judaism: for it ardently maintains that the whole of the Torah (both Written and Unwritten) comes from God – in the sense already described above, in which God's will is perceived more perfectly as the human perceptors progress onward and upward. We insist that man's reaching for God is, indeed, a reaching for God, and that which is finally accepted into the tradition has proceeded from God. Even when some element or other is superseded later on with an improved understanding, it does not mean that the former teaching was not divine; it merely means that man was not yet philosophically developed to a degree that would permit him to understand the full implications of the divine in that particular matter – very much as we understand our parents more intelligently the more we grow.

19:
However, matters do not rest here. Rambam [Moses Maimonides, North Africa, 12th century CE], in the Thirteen Fundamentals that form part of a long excursus that he inserted into the preamble to his commentary to the very mishnah we are presently studying, codified this concept of Torah Min ha-Shamayim [Torah from Heaven] in a way that is problematic for us:

Surely, had Rambam been formulating his principle today he would have phrased it differently. That which we find problematic in his words is not to be found in the original Midrash nor is it to be found in our mishnah; it was added by Rambam. We agree with Rambam that "It all comes from God and it is all God's perfect, pure and holy Torah of truth". We disagree with him when he states that "the [Written] Torah now in our possession is identical to that given to Moses". The formulation of Rambam is, of course, entirely at odds with the sentiments implied by Abraham Ibn-Ezra in several places in his commentary on the Torah; for instance see the quotation brought in our last shiur, and in particular the gloss on it made by Yosef Bonfils. Ibn-Ezra surely would have rejected Rambam's extension of the original Midrash, as we do – and as Rambam himself almost certainly would if he were alive today. For Rambam was an ardent proponent of the principle that we should not permit the literal meaning of Torah to contradict our verified intellectual perceptions. Rambam himself faced a dilemma similar to the one he has unwittingly created for us: he was a devoted follower of Aristotelian physics, and Aristotle had propounded the eternity of matter, whereas the Torah teaches that "in the beginning God created" matter [Ĥiddush ha-Olam]. Rambam says that he accepts the view of Torah on creation against the view of his intellectual hero, because Aristotle had not proven his hypothesis. If, however, the eternity of matter had been given a scientific proof "it would be possible to interpret figuratively the texts [of the Torah] in accordance with this opinion" [Guide for the Perplexed, Part Two, Chapter 25] He does not say that it would be necessary to ignore clear scientific evidence in order to maintain the verbal integrity of the Written Torah!