Establishing Halaĉa on the Word of G-d
The Paradox of Halaĉa
In Halaĉa there are two types of Mitzvos:
- Permanent Mitzvos of which there are 613. These Mitzvos and the methodologies and derivation processes that determine how to fulfill them, and the associated Rabbinic enactments to prevent violations of them, are called Halaĉa.
- Temporary Mitzvos, known as הוראת שעה – emergency guidance which can even be issued in violation of one of the permanent Mitzvos. The classic example of this is Eliyahu’s sacrifice on Mount Carmel, which violated the Mitzva prohibiting sacrifices from being offered outside the Bais Hamikdash.
When it comes to Permanent Halaĉa, we do not derive legal rulings of Halaĉa from statements made by heaven / G-d himself, as it says in the Gemara[i] Rabbi Yehoshua said, אין משגיחין בבת קול – we do not pay attention to a voice from Heaven.[1] The source for this ruling by Rabbi Yehoshua is from the verse[ii] אחרי רבים להטות – determinations [of Halaĉa] follow the majority.[2]
And yet, the very transmission of the entire Torah is written in a way that seems to contradict this rule. Every time the verse states ויאמר ה’ אל משה לאמר – and G-d spoke to Moshe saying. If Halaĉa rejects Heavenly voices as legally determinative, then why would Moshe establish our entire baseline of Halaĉa on a “voice from Heaven”.
Insufficient answers
There are several acceptable answers to this:
- One might argue that these verses in the Torah are there to set forth the Permanent Mitzvos – which by their essential nature must be commanded by G-d.[3]
- The commands of the Torah, including אחרי רבים להטות, relate to the establishment of Halaĉa once the entirety of the Torah was given, similar to most positive Mitzvos which only came into effect once the Jews entered the land of Israel.[4]
- The Torah, and all it contains, including Halaĉa, was given to Moshe as a gift.[5] It wasn’t until he gave it to the Jewish people, as it says in the verse[iii] תורה צוה לנו משה that the rules of how to derive Halaĉa came into effect. Until then, there was only one recipient of Torah.
All these answers though are not complete, as אין משגיחין בבת קול and[iv] תורה לא בשמים הוא – Torah is not in Heaven are fundamental axioms of Halaĉa. To state that the entire establishment of the baseline of Halaĉa was one giant exception to those rules, for whatever reason, calls the rules into serious question.
One might offer another response, to preserve the rule and still accept that the Torah was commanded by G-d to Moshe:
- Receiving the statement of G-d in the verse ויאמר ה’ אל משה לאמר is not what established Halaĉa, though it does establish what a Mitzva is. Rather, the acceptance of all the Jewish people of Moshe’s teaching, once he had been spoken to by G-d, is what established the Halaĉa – the (unanimous in most cases) majority of the generation of the wilderness ruled in accordance with Moshe.[6]
However, the descriptions of the Midrash on how Moshe taught Torah does not align with that answer.[7]
While all of these answers are logically and structurally sound, and obviously correct, there is still something lacking regarding our understanding of why the transmission of the Torah seemingly involved a giant loophole in the rules of Halaĉa.
The Description of G-d’s Speech to Moshe
The resolution to this paradox lies in G-d’s description of Moshe’s prophetic mechanism / status as compared to the other prophets. When Miriam and Aharon spoke about Moshe’s treatment of his wife Tzippora, G-d responded as follows[v]:
לא כן עבדי משה… פה אל פה אדבר בו
Moshe is not like that, because ‘mouth to mouth’ I speak to him.
Commentators[vi] typically explain this as a ‘face-to-face’ communication. However, we cannot state that this phrase refers to the directness of communication or the clarity of speech between G-d and Moshe for several reasons:
- Rashi chooses to define this concept as being a reference to a command given to Moshe of[vii] ואתה פה עמד עמדי (stress added). Presumably, Rashi is implying that Moshe, in separating from his wife, was obeying the command of ואתה פה – which fits in to the פשט of the narrative, explaining Moshe’s actions.
However, we cannot accept this understanding, because the concept of clarity in speaking with or perceiving the divine, should properly be translated as פנים אל פנים – a phrase used often in the Ĉumash[viii] to describe clarity of vision. However, while two of those verses refer to the special communication of G-d to Moshe, one of those times the phrase is used by Yaakov describing his meeting with G-d (angels)[8]. Furthermore, a similar phrase פנים בפנים is used in describing G-d’s speech to the Jewish people[ix]. And while the Midrash teaches that the people couldn’t handle that level of revelation, as related explicitly in the Torah[x] – G-d did indeed appear to the people in this way. Therefore, stating Moshe was special because G-d always[9] appeared in this fashion might be an advantage in quantity, but not quality. And G-d was protesting that Moshe was qualitatively different.
- If G-d’s defense of Moshe is that he had been commanded to separate from his wife, then why does G-d continue speaking by adding further accolades. He could have simply stated Moshe was obeying G-d’s command – as Rashi states.
- If the meaning of the word פה is a reference to ‘here’ why do we pronouncing it to mean ‘mouth’.
- What does the remainder of the phrase אל פה mean in the context of how Rashi is explaining this.[10]
- How is the obedience of Moshe to a direct command such an impressive praise of Moshe that to speak badly of Moshe is a terrible transgression.
Considering all of this, we should be approaching the meaning of this phrase differently.
Anatomical Mechanics of Prophecy
Prophecy is often described as G-d speaking within the prophet.[xi] Thus, we can understand the phrase אדבר בו in the verse פה אל פה אדבר בו as meaning literally I will speak from within him.
When Miriam and Aharon were talking about Moshe’s actions, simply stating that G-d had commanded him to blind obedience would not explain why Moshe had to separate from his wife. As we find when Moshe was informed he would not be allowed to enter into the land of Israel – he prayed hundreds of times to be allowed in.[xii] Why did Moshe not pray to be allowed to get back together with his wife.
Especially as Miriam and Aharon had both experienced the efficacy of prayer in overturning a decree:
- Miriam was naturally too sick to bear children.[xiii] Despite her infirmity, Calev determined to marry her strictly “for the sake of Heaven”, recognizing her immense spiritual stature and what a privilege it would be for him to be married to her. As a result, G-d performed a miracle and healed Miriam allowing her to bear children. It is through her descendants that Dovid was born.
- Aharon had also experienced the efficacy of prayer; the initial decree against Aharon was that all of his children would die for his participation in the Golden Calf. And yet, as stated in the verse[xiv] ואתפלל גם בעד אהרן בעת ההוא – Moshe’s prayer on behalf of Aharon succeeded in preserving the lives of Elazar and Itamar.
Why then did Moshe not pray. Even if he felt he could not pray for himself, surely [from Miriam’s perspective] he could pray for Tzipporah who was suffering, as we find by our forefather Yitzĉok who prayed for Rivka Imeinu. And yet, not only did Moshe not pray for Tzipporah [or himself] even when Miriam brought this up he spoke no word of explanation.
Had G-d’s response been limited to explaining that Moshe was following a divine decree, not only would Miriam not have accepted that response. She would have done everything in her power for her younger brother and sister-in-law to pray that the decree be overturned. Therefore, G-d had to explain that the decree was the result of Moshe’s status – at having achieved the ability to be a clear conduit for G-d’s speech – that is why Moshe had to constantly stand at-the-ready for the Divine Presence never departed from him.
This understanding of Moshe’s unique prophetic status is in line with the famous teaching of the Ba’al Shem Tov, as codified by the Alter Rebbe[xv] שכינה מדברת מתוך גרונו של משה – the Divine Presence spoke from within the gullet of Moshe. Moshe himself naturally had a speech impediment, as stated in the verse[xvi] כי כבד פה וכבד לשון אנכי. However, through his immense humility in front of G-d, as it says in the verse[xvii] והאיש משה עניו מאוד מכל האדם אשר על פני האדמה, he was able to render himself as naught allowing G-d to literally speak through Moshe.
As a result, this allowed Moshe to transmit the Torah without an interpreter or other angelic go-between.[11]
Considering this, the verses’ literal meaning פה אל פה אדבר בו – mouth-to-mouth I speak within him, addresses all of our questions.
- Moshe was indeed different in that G-d’s voice issued from his mouth.
- This is why the Torah uses the phrase פה אל פה – mouth-to-mouth, as if G-d was transferring the speech from G-d’s so-to-speak mouth to Moshe’s mouth.
- This provides a source for the Ba’al Shem Tov’s famous teaching
Halaĉic Resolution
And incidentally viewing Moshe’s prophecy through the teachings of Ĉassidus answers our initial question. When Moshe transmitted the Mitzvos of G-d to the Jewish people, this wasn’t a voice issuing from heaven. It was G-d’s voice here in this world. Moshe operated as the ultimate Halaĉic Authority because his rulings were G-d’s voice entirely within the physical domain. Therefore, the giving of the Torah never violated the rule of תורה לא בשמים הוא, since, at its inception, Mitzvos and Halaĉa was literally issued in this world.
[1] This was stated in relation to Rabbi Eliezer’s attempt to prove his Halaĉic ruling by relying on miracles and eventually on a voice from Heaven.
[2] and plurality only applies to human beings, not the Creator.
[3] See Rambam introduction to the Mishna, and הלכות יסודי התורה 9:1, and Sefer HaChinuch Mitzva 495.
[4] See Gem. Shabbos 104a and Temura 16a in which the Gemara learns from אלה המצות that the prohibition against adding anything new was only “from now on”.
[5] See Gem. Nedarim 38a
[6] See Derashos HaRan (Derasha 11) and the concept of קבלו עליהו in Gem. Shabbos 88a. Rabeinu Nissim determines that the foundational authority of the Torah is not based on the fact that G-d spoke, but rather that the entire people who witnessed it accepted it. Rambam in הלכות ממרים similarly explains that the ongoing authority of the Torah rests with the Sanhedrin, not as a perpetuation or echo of the words spoken by G-d.
[7] See Rashi [Shemos 34:32] in describing the four-fold Seder Ha Mishna method of Torah transmittal in which: Moshe would teach Aharon, alone. Then his sons with Aharon present. Then the Elders with the Kohanim present. Then the people with all the Elders present. See also Gem. Eiruvin 54b
If the authority of Halacha fundamentally relied on the democratic consensus of the generation of the wilderness (the “parliamentary” idea of אחרי רבים להטות), the historical transmission of the law should reflect a debate, a vote, or at least a collective, simultaneous acceptance. Instead, the Talmudic record shows a strict, top-down, hierarchical dictation. Moshe received the law in isolation and transmitted it in a highly controlled, authoritarian chain of command. There was no room for consensus or debate in that initial relay.
[8] Which contradicts the idea that Moshe was different from other prophets in this manner.
[9] Actually, there were two times in which Moshe prophesized using the term כה – just like all other prophets:
- [Shemos 11:4] in telling Pharaoh that G-d would smite the first born exactly at midnight, Moshe rephrased the prophecy so that the timing stated was approximated, even though G-d was exact.
- The other time was with the rebellion of the golden calf, [Shemos 32:27] when Moshe summoned the tribe of Levi to vengeance, he phrased it as an approximation of what G-d had commanded. Rashi on that verse comments that the actual command to destroy idolators was issued in the verse [Shemos 22:19] זבח לָאלהים יחרם, בלטי לה’ לבדו. Thus, while G-d had given the general Mitzva to destroy idolators, he had not commanded Moshe to have those who worshiped the golden calf killed.
[10] Perhaps, in quoting the entirety of the phrase פה אל פה Rashi is alluding to this discrepancy in his commentary – but not expounding upon it as this is far beyond the scope of what a five-year-old would be questioning in his studies.
[11] Unlike when Moshe had to speak to Pharaoh, then, he was not speaking words of Torah, and accordingly, Aharon had to translate for him, as it says in the verse [Shemos 4:16] הוא יהיה לך לפה.
[i] Gem. Beraĉos 52a. See also, Pesaĉim 114a, Yevamos 14a, Bava Metzia 59b, Ĉulin 44a
[ii] Shemos 23:2
[iii] Devarim 33:4
[iv] Devarim 30:12
[v] Bamidbar 12:7-8
[vi] The Rishonim seem to follow the following groups in explaining this phrase:
- Ibn Ezra, Rashbam and Chizkuni – direct communication
- Sforno and Unkelos – clarity of communication
- Rambam – allegorical description of conscious conversation
[vii] Devarim 5:27. See Gem Shabbos 87a
[viii] Beraishis 32:31, Shemos 33:11, Devarim 34:10
[ix] Devarim 5:4
[x] Devarim 5:21-24, Shemos 20:16
[xi] Shemuel II 23:2, Zeĉarya 1:9 – and an addition 10 verses in Zeĉarya in which this phrase is used. See also the phrasing used to cause Bill’am to speak, the Torah states וישם דבר בפיו (or similar phrasing) that the words were placed in his mouth, and Bill’am was unable to speak his own words. See also Rambam’s Guide to the Perplexed in discussing the mechanics of prophecy.
[xii] See Rashi on the word ואתחנן.
[xiii] See Gem. Sota 12a and Shemos Rabba 1:17 concerning the alternate names for Miriam as being a reference to her suffering from physical ailments preventing her from having children.
[xiv] Devarim 9:20
[xv] Tanya Chp 34
[xvi] Shemos 4:10
[xvii] Bamidbar 12:3