The oral law in the system of Jewish law: its origin, essence and character - Статья

The oral law in the system of Jewish law: its origin, essence and character Mariana Hartman The article is devoted to highlighting the essence and content of the Oral Law in the system of Jewish law. It studies the problem of the Jewish understanding of the term Oral Law and its relationship with the Written Law. The author analyzes a number of sources of Talmudic literature on the basis of which the conclusions that the Oral and Written Torah are in close connection and interdependence with each other. Based on the analysis of Torah and Talmud the following two reasons for such connection have been pointed out: the same source of origin and the one that the Oral Law is an explanation of the Written Law. In addition, the author highlights a number of features inherent to the Oral Law, which make possible to make conclusions about its nature, essence and content. Such interdependence of the two parts of Jewish law emphasizes once again its uniqueness as a legal phenomenon. Key words: the Oral Law, the Written Law, Torah, Talmud, Halacha, Haggadah. The Oral Law, or, as they call it in the Jewish tradition, the Oral Torah or the Oral Teaching, occupies an important place in the system of Jewish law. While the Written Law includes the five books of Moses, the Oral one covers much more legal material, due to the dynamic nature of its development. Unlike the Torah, which is a static source of law, i.e. one that is not subject to amendment, the Oral Law is on the contrary characterized by dynamic nature. Being the source of law derived from the Written Torah, the Oral Law was formed through interpretations and explanations by the Jewish people in the course of their history. Prof. Menachem Elon states that the term Oral Teaching includes all Jewish Halacha, which is not construed in the Written Teaching. In a broad sense scholar urges to treat the Oral Doctrine not only as Halacha of the Talmud, i.e. one that is formulated in the Mishna, in the Midrash, in the Tosefta, in the Baraytas and two Talmuds (Jerusalems and Babylons), but also as halachic resolutions in all their forms, of all ages. In addition, halachist stresses that the Jewish concept of Oral Teaching” includes written laws, including statutes, regulations, etc. and their interpretation. Taking into consideration the definition given by the scientist, it becomes clear that M. Elon treats the Oral Law as an exclusively halakic legal material. Another definition of the Oral Law (ПЭА>УЭ$ ЧІП, Torah shebe-al peh), i.e.of the Oral Torah is given in the Electronic Jewish Encyclopedia (EJE): all the interpretations and conclusions which the scribes deduced from the written Torah, as well as the regulations instituted by them, and therefore comprises the entire traditional teaching contained in the Mishnah, the Tosefta, and the halakic midrashim, since these were taught only orally and were not committed to writing. As we can see, the authors of the Electronic Jewish Encyclopedia treat the Oral Law not only as a set halakic material, but also haggadic. Despite a great respect for scientific views of the Jewish scholar, closer and thus more corresponding to our vision of the Oral Law is the definition given in the EJE. The main reason to prefer this opinion to the another one is that the Oral Law includes not only Halacha, but also Haggadah, which is also the source of the Jewish law. According to the teachings of Jewish halachists, the Oral Law existed even in the days of Isaac long before the period of Sinai legislation. This idea is based on the words from Bereshit: Because Abraham obeyed Me and did everything I required of him, keeping My commands, My decrees and My instructions.” (Toldot 26:5). The phrase ”My instructions” is translated from Hebrew, and the original word used there is Torotai” which has a plural meaning, i.e. ”My Torahs”. In comments to Torah Sonchino explains that it literally means my teachings” and then he refers to the Midrash, which emphasizes that the Torah is divided into written and oral. The author of popular commentary on the Pentateuch directly explains that ”the written Torah passes from generation to generation, like a scroll, and the oral one as a doctrine”.2 There is a large number of stories in Torah, which show that even before the period of Sinai legislation there existed the Oral Teaching that regulated the family, civil, commercial and criminal relationships. Obviously, it was a system of knowledge, norms and customs that were passed on orally and because of repeated use were granted compulsory nature. The period of Sinai law was an important moment in the history of the Jewish people, because then Law obtained a written form. And even after that the need for the Oral Teaching did not disappear, on the contrary, the Jewish people were given a kind of reinforcement in the form of the Written Law, and a more detailed explanation of it. Such a need for the Oral Teachings increased in every period of time. In the talmudi