by Haddasah Levy

A famous midrash in Menachot 29b recounts a fantastical story about an interaction in heaven between Moses and God:

R. Yehuda said in the name of Rav:

When Moses ascended to the heavens, he saw God sitting and tying crowns to the letters [of the Torah].

Moses asked, “What’s the hold up [i.e., why can’t you give the Torah as is]?

God replied, “there’s a man who will be in the future, after many generations, named Akiva b. Yosef, who will find in every jot and tittle mounds of laws.

Moses said, “Master of the Universe, show him to me!”

God said, “Turn around”

Moses went and sat in the eighth row of students in R. Akiva’s class, and had no idea what they were saying. His strength deflated.

The class asked R. Akiba about a certain matter, “From whence to you know this?” He replied, “It is a Law transmitted to Moses at Sinai. Moses’ mind was put at ease.

The purpose of this midrash is to authenticate the Oral Law, but there are many questions relating to it. If the Oral Law was given to Moses at Mount Sinai, how can it be that Moses does not understand what is being said in the study hall of Rabbi Akiva? And if the Oral Law is a continuation of the divine tradition, why is it necessary for Rabbi Akiva to derive them from the crowns of the letters? And how does he do this?

The idea that the Oral Law is integral to the Torah is stated even more strongly in a midrash about Abraham. According to this midrash (Yoma 28b), Abraham kept the entire Torah and that included the rules of the Oral Law, such as eruv tavshilin (pre-sabbath preparation for holiday cooking). Of course, that premise only strengthens our previous questions: if the two Torahs are really one corpus, how can it be that Rabbi Akiva had to learn these laws for himself? Until the time of Rabbi Akiva, did these laws not exist? When did laws like eruv tavshilin come into existence?

According to Rabbi Baruch HaLevi Epstein, author of the Torah Temimah (Exodus 24, note 28), the passage in Menachot teaches us that there are two types of laws. There are traditions that were handed down to Moses — which Rabbi Akiva did not derive from the Torah since they are impossible to derive by human means. And there are laws that can be figured out, for which type of Oral Law, Rabbi Akiva’s interpretative method was put to use.

There are three basic methods to derive oral laws:

• Sevara — something which is basic common sense. For instance, the fact that murder is forbidden even under the pain of death, is sevara. According to Rabba, no one can claim that his or her own life is more important than someone else’s life.
• Kal vachomer (lenient and strict) — also a logical principle. For example, since it is forbidden to bake on a holiday for Shabbat, an important day that merits preparation in advance, then it is obviously forbidden to bake on a holiday for an ordinary weekday.
• Rulings that are based on ethical principles. For instance, the identification of the lulav (palm branch) and hadas (myrtle) — for the taking of the four species that is a mitzvah on Sukkot — was done by eliminating all similar plants which are thorny or poisonous. That process of elimination of other possibilities applies to the famous monetary compensation in the eye for an eye equation. The asessment was understood to apply to money because there is no fair way to accomplish a literal trade of an eye for an eye.

Then there are laws which are called “Laws Transmitted to Moses at Sinai.” These can’t be learned in any other way. They include laws such as the 39 melachot of Shabbat, the tying of the tefillin strap to form the letter shin and the pouring of water on the altar for all of seven days of Sukkot. These are not the laws that Rabbi Akiva derived from the crowns of the Torah; rather, they were handed down from Moses to each subsequent generation.

Historically, it would seem that there was a point in history in which only the Written Torah was kept (except for a small number of laws) and the Oral Law was added bit by bit in stages. The talmudic passage in Menachot purposely created a dichotomy — Oral Law is both divinely inspired and created by rabbinic interpretation.

The essence of the Oral Law is that at whichever point in time the rabbis interpret the Torah, the interpretation becomes a part of the corpus of the Torah. So the Mishnah Berurah can be part of the Oral Law without the need to pretend that its author was quoting the traditions of Moses. And there is no need to say Rabbi Akiva was doing that either. If he had traditions for everything, there would be no need to use such difficult methods to derive the laws. Rather, some ancient traditions probably existed but most of the Oral Law is a process created by man within the license granted to us by God — “it is not in heaven.”

As taken from, https://blogs.timesofisrael.com/how-did-the-oral-law-become-part-of-the-torah/