V. If we reject the first argument for a divine Oral Law that was given to Moses from God we are left with the definition of an Oral Law that came from the rabbis of old.
The rabbis who contributed to the Mishnah are called the Tannaim. These rabbis were decisors of the law during the last two centuries before the common era and the first two centuries of the common era. There are problems with these particular rabbis being the decisors of the law that is written in the Mishnah.
Only some of the Tannaim could be legitimately considered part of the official court in the Land of Israel. The Temple was destroyed in 70CE and those rabbis who were part of the exiled court were no longer eligible to sit as a court within the Land of Israel. The court was only permitted to render decisions when they were seated at the place that the Eternal One will choose (that is, the Temple environs).
And you shall do according to the tenor of the sentence, which they shall declare unto you from that place which the Eternal One shall choose; and you shall observe to do according to all that they shall teach you. (Deuteronomy 17:10)
Since the Temple was destroyed in 70CE only those decisions made by the judges before 70CE were legitimate and binding.
If we are to believe Rabbinate history the only legitimate rabbis who could make binding decisions as a court of law would be:
- Yose ben-Yoezer and Yose ben-Yohanan (Second Century BCE at the time of the Maccabean wars)
- Yehoshua ben-Perachyah and Nittai of Arbela (Second Century BCE at the time of John Hyrcanus)
- Yehuda ben-Tabbia and Shimon ben-Shetach (First Century BCE at the time of Alexander Jannæus and Queen Salome Alexandra)
- Shmaya and Avtalyon (First Century BCE at the time of Hyrcanus II)
- Hillel and Shammai (First Century BCE – First Century CE at the time of King Herod the Great)
- Rabban Gamaliel Hazaken (First Century BCE at the time between King Herod the Great and the destruction of the Temple)
- Rabban Shimon ben-Gamliel (First Century BCE at the time between King Herod the Great and the destruction of the Temple)
- Rabban Yochanan ben-Zakai (First Century BCE at the time between King Herod the Great and the destruction of the Temple) – his opinions made before the destruction of the Temple are his only legitimate, binding decisions
There are twenty-three more Tannaim listed (including the redactor of the Mishnah – Rabbi Yehuda HaNasi) in the sources after Rabban Yochanan ben-Zakai. However, since their decisions and rulings were made after the destruction of the Temple in 70CE their rulings are not legitimate and therefore not binding upon any Jew.
Since the majority of the Mishnah has no attributions as to who made the rulings we cannot determine if the ruling in and of itself is legitimate. Why? This is due to the fact that the ruling could have come from any of the legitimate decisors or the twenty-three illegitimate decisors. Since (in most cases) we cannot make the distinction between the two we must negate the decisions as being binding upon any Jew.
According to Sanhedrin 86a “Rabbi Yohanan said: [The author of] an anonymous Mishnah is Rabbi Meir….”1 If we take this at face value then we know that the majority of the Mishnah (the portions that are anonymous) are completely illegitimate. We know this because Rabbi Meir lived during the Second Century CE – years after the Second Temple was destroyed. He was not a legitimate decisor and his rulings are not binding upon any Jew.
VI. The legitimacy of the information contained within the Mishnah is subject to question.
According to Rashi:
When the students of Shammai and Hillel multiplied… disputes in Torah also multiplied, and it appeared as if there were two different Torahs. This was a consequence of the oppressive decrees of the empire. As a result it became impossible to have the clarity to understand the underlying reasons for halachic disputes. Then, when God showed favor to Rebbi in the eyes of Antoninus, the Jewish people were able to take respite from their oppression. Rebbi then sent for, and gathered, all the scholars in the land of Israel. Up until that time the laws were not arranged according to tractates, but rather each student heard laws orally from someone greater than him, would repeat it, and would label it; halachot A and B I heard from Rabbi C. When all of the scholars were gathered by Rebbi everyone recited what he had heard. Then, they took the effort to understand the underlying reasons for each opinion in each dispute and decided which opinions to preserve. These were then ordered and arranged according to separate tractates… [In addition] Rebbi would anonymously quote the halacha of an individual sage which he approved of in order to establish the Halacha according to him. (B. Talmud Bava Metzia 33b)2
According to Rashi when Yehuda HaNasi decided to redact the Mishnah he called together the scholars from across the Land of Israel. He then proceeded to write down their individual recollections of what they were taught by their teachers (and in some cases the names of the teachers). Yehuda HaNasi then made the decisions of what was to be included in the Mishnah (Oral Law) based upon the “underlying reasons for each opinion.” Therefore, Yehuda HaNasi did not keep all of the teachings that had been passed on orally from teacher to student. That begs the question of how much information was lost and how much information was placed into the Oral Law simply because Yehuda HaNasi agreed with the underlying arguments. This alone shows that the Oral Law cannot be completely trustworthy and therefore not binding upon any Jew.
Based upon these very short arguments it is easy to see that the so-called Oral Law or Oral Torah is not in fact divine and is not binding upon any Jew. It is simply a collection of opinions and traditions from the distant past.
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1Tzvee Zahavy. “English Babylonian Talmud.” halakhah.com, Halakhah.Com, n.d. [http://halakhah.com/pdf/nezikin/Sanhedrin.pdf]
2Meir Triebitz. “The Redaction of the Talmud.” hashkafacircle.com, Hashkafa Circle, n.d. [http://www.hashkafacircle.com/journal/R3_RMT_Talmud.pdf]