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From Prohibition to Mitzvah: Writing the Oral Torah

The verse in Parashas Ki Tisa states: “Hashem said to Moshe: Write these words down for yourself, since it is through these words that I have made a covenant with you and Israel” (Shemos 34:27). Based on these words the Gemara (Gittin 60b) derives the prohibition of writing down the Oral Torah:

“Rabbi Yehuda bar Nachmani, public orator of Rabbi Shimon ben Lakish, taught as follows: It is written, ‘Write these words down for yourself.’ But it is also written, ‘since it is through these words (lit. by word of mouth).’ What are we to make of this? It means: You are not at liberty to say written words by heart; and you are not at liberty to transmit teachings transmitted orally in writing.”

The Gemara cites a tannaic source for the prohibition: “A Tanna of the school of Rabbi Yishmael taught: [It is written] “[Write] these [words down]” – these you may write (the Written Torah), but you may not write halachah (the Oral Torah).”

As we know, today it is permitted to write down the Oral Torah. Indeed, such writings form the basis for most Torah study today. Clearly, something has changed.

In the this article we will outline the development of this halachah, its scope and its practical ramifications. Despite the general halachic permission to write the Oral Torah, we will see that several aspects of the initial prohibition remain in place.

Scope of the Prohibition

The Gemara notes that even in ancient times, there were exceptions to the prohibition against writing down the Oral Torah. For instance, individuals used to write Oral Torah insights they heard, so that these should not be forgotten: “For Rav Said: I found a concealed scroll from Rabbi Chiya, in which it was written…” (Shabbos 6b).

Rashi explains that the scroll was hidden because of the prohibition to write the Oral Torah. Despite the general prohibition, Torah insights could be recorded for personal use (so that they shouldn’t be forgotten), but they were hidden from the public eye (see also Rashi, Shabbos 96b).

The idea expressed by Rashi emerges from another passage of the Gemara (Temurah 14b, according to one version in the Shita Mekubetzes): “The rabbis rely on their learning. But due to concern for forgetting, they write it down and they set it aside. When something is forgotten, they look it up in the notes.”

Thus, it seems that the initial prohibition only related to writing down the Oral Torah for public Torah study, and not for personal use out of fear for forgetting the learning. This is likewise implied by the Rambam in his introduction to Mishneh Torah:

“From the days of Moses, our teacher, until Rabbenu Hakadosh, no one had composed a text for the purpose of teaching the Oral Law in public. Instead, in each generation, the head of the court or the prophet of that generation would take notes of the teachings that he received from his masters, for himself, and teach them orally in public (see also Beis Yosef, Orach Chaim 545:9, who seems to limit the leniency to cases of a novel insight that requires writing, rather than the general oral tradition).

The Netziv (Introduction to Commentary on She’iltos 3:10) mentions that the wording of the prohibition, which states, of orally transmitted teachings, that “you are not at liberty to say them by heart,” also implies that the prohibition is limited to public teaching and not to personal notes.

The prohibition against writing the Oral Torah included writing Midrashim, prayers and berachos (see Shabbos 115b), as well as translations and commentaries of the Written Torah (Shabbos 115a). All of these are considered part of the Oral Law.

Reason for the Prohibition

The Ran (Megillah 14a in page numbering of the Rif) explains: “The reason for [the prohibition to write down the Oral Torah] is that the oral tradition contains explanations of the Written Torah that can only be understood when explained well by a teacher. Were it written down, one might be tempted to suffice with the level of understanding [achieved from reading what is written down], even though he did not fully comprehend it.”

Rabbi Zaddok Ha-Kohen (Machshevot Charutz p. 113) adds that the written word cannot capture the depth of the spoken word – another possibility for why the Oral Torah should not be committed to writing. In his words, “One cannot compare the direct teachings of a master to that which is written in a book… Speech issues from the depths of the heart, while the written word cannot capture that depth.”

It is also possible that the prohibition reflects the need for Torah law to be dynamic. Although the Written Law gives us immutable principles that offer eternal guidance, the Oral Law depends on interpretations made by Torah sages of each generation, and these are liable to develop and change over time. No two sages think alike, and changes in circumstances can bring up new challenges that require novel interpretations.

We can thus suggest that the purpose of the prohibition against writing the Oral Torah is to ensure the dynamic nature of halachah: the dynamic application of the Written Torah by an Oral tradition allows it to be eternally contemporary.

In addition to the above, we find in the Gemara that “those who write berachos are considered as though they burned the Torah” (Shabbos 115b). Although the person doing so intended that his writing be put to good use (in reciting berachos), the Sages related to setting down berachos in writing with special severity, out of concern that this might lead to their destruction. The law originally was that, in contrast to actual Torah texts, it was forbidden to save such writings from a fire, should a fire break out on Shabbos.

Even after it became permitted to set the Oral Torah into writing, some authorities continued to forbid the writing of prayer books and the like (see Rif and Milchamos Hashem, Shabbos Chap. 16).However, of course the consensus is to permit.

The Great Change

The Talmudic Sages saw that it was becoming increasingly difficult for people to learn Torah and to observe related mitzvos. For this reason, they ruled that the prohibition against writing Torah must be overruled by the more vital need to keep Torah alive among the Jews.

This enactment, which involved a veritable revolution in Torah study, was given a Torah source based on the Biblical words Eis laasos la-Shem heifeiru torasecha (Tehillim 119:126), which is understood to mean: “It is the time to act for Hashem, since Your Torah is being uprooted.” In order to facilitate Torah study, it is therefore permitted to teach the Oral Torah from written texts.

According to the Rambam (Introduction to Mishneh Torah) the first part of the Oral Torah to be formally written was the Mishnah, edited by Rebbi. In the words of the Rambam: “Rebbi gathered together the traditions, enactments, explanations and interpretations that had been heard from Moshe Our Teacher or had been deduced by the courts of all the generations regarding all Torah matters; and he wrote the Book of the Mishnah from all of them. He taught it publicly to scholars, and it became known to all Israel. Everyone wrote it down and taught it everywhere, so that the Oral Torah would not be forgotten by Israel.”

The Rambam explains the reason for Rebbi’s doing so: “And why did Rabbi Yehudah HaNasi do so, and not leave the matter as it had been before? Because he saw that the students were becoming fewer and fewer, calamities were continually happening, the Roman government was extending its domain and increasing in power, and the Jewish people were migrating to remote places. He thus wrote a work to serve as a handbook for all, so that it could be rapidly studied and would not be forgotten. Throughout his life, he and his court gave public instruction in the Mishnah.”

Scope of Permission to Write the Oral Torah

According to some authorities, the initial permission to write down the Oral Torah applied specifically to teachings of halachah, and not to teaching of aggadah –traditions and interpretations in non-halachic areas (see Shut Radvaz 4:232).

Some argue the contrary: It was first permitted to write non-halachic traditions, which were in greater danger of being forgotten and only later was it permitted to commit to writing halachic traditions, for which the danger of forgetting was smaller (see Shut Iggros Moshe, Orach Chaim 4:39; Maharatz Chayus Chap. 32).

It is clear that today both are permitted (see the above Radvaz, who clarifies that this has been true since the time the Gemara was written). However, some authorities maintain that some elements of the prohibition continue in force.

The Chasam Sofer (Orach Chaim 208) is perhaps the most prominent of these opinions, stating that the intention of the writer must be taken into account: “Somebody who publishes a sefer, and intends thereby to make a name for himself (together with noble intentions), transgresses a Torah prohibition of ‘you are not at liberty to recite from writing.’ The permission is only on account of ‘doing for the sake of Hashem,’ and if he does not do for the sake of Hashem, the prohibition remains in place.”

However, the custom does not seem to follow this ruling. Rav Ovadya Yosef (Yecheveh Daas 3:74) was asked whether a person can write a Torah work for purposes of receiving a doctorate from university (or for purposes of winning a monetary prize in a Torah competition). In answering, he notes (citing the Afrakasta De’eina 1:2) that the great halachic codes (Rambam and Shulchan Aruch) make no mention of the prohibition. This indicates that it does not apply today under any circumstances.

As noted, the general custom today is not to be concerned about the stringency of the Chasam Sofer.

Other Ramifications

Poskim suggest a number of additional ramifications that arise from the permit to teach the Oral Torah from writing.

Some rule that since permission was granted to write down the Oral Torah, it is no longer forbidden to give halachic rulings before reaching the age of forty. The original reason for this prohibition is that only somebody with a wealth of personal experience is fit to make halachic decisions for others. However, after it became permitted to write down the Oral Torah, “the Torah scholar does not make the decision, but rather the book” (Shut Maharshdam, Choshen Mishpat 1).

Another ramification, this time in the area of teaching Torah to one’s children, is noted by the Shulchan Aruch Ha-Rav (Chap. 1, no. 6):

“Today, when the entire Torah is committed to writing, there is no obligation to hire a teacher for one’s son to teach him the entire Oral Torah. It is sufficient to teach him to understand most passages in the Talmud and the depth of halachic matters, together with the rulings of early and later authorities, and to give him the tools by which he will know how to continue his learning on his own and to reach the final halachic conclusion. Then he will be able to study the Talmud and the halachic works on his own… and it is considered as though the teacher taught him.”

Rav Zaddok Ha-Kohen writes that in contrast with previous times, today there is an obligation to set to writing any novel Torah thoughts, so that they should not be forgotten over time (he cites the Shulchan Aruch, Yoreh De’ah 270:2, and Shach 5). Writing the Oral Torah has thus changed from being a prohibition to being a mitzvah!

Conclusion

Although the Oral Torah is no longer oral in a literal sense, its essential nature – a transmission bringing the creative dynamic of the human mind to its zenith – lives on. This nature can be glimpsed in the writings of the great Torah sages throughout the generations – such as the Rambam in times of Rishonim, the Noda Biyhuda in the eighteenth century and Rav Moshe Feinstein in recent times. Their creativity on the one hand, yet absolute loyalty to tradition on the other, ensure that the Torah of old is, indeed, forever contemporary.

May we merit to walk in their light.

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