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If you’ve learned Gemara you have no doubt encountered many a machloket – disagreements between different Sages who lived in the times of the Mishna and Gemara. But the ubiquity of machloket (no tractate is without dozens of them) begs a question: if we believe that the Oral Torah is no less a mesorah than the Written Torah and that it has been passed down generation to generation, then why should there be any machloket?

In this three-part series we are going to explore the history of the development of machloket – how it happened and what are its implications. To make matters clearer we are going to divide the history of machloket into six stages, the first two presented this week.

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Stage 1: From the Death of Moshe until the Zugot

As long as Moshe was alive any questions concerning the interpretation could be directly resolved by G-d. For example, when those who were unable to bring the Korban Pesach due to impurity came to Moshe, he responded, “Stand by, and let me hear what instructions Hashem gives about you” (Bamidbar 9:8). Following the death of Moshe, Torah would no longer be decided in Heaven (see Bava Metzia 59b). Any question would be decided using human reasoning based on the Torah given to Moshe. While a prophet could serve as a posek (decisor of halacha), he could not use prophesy in that capacity.

At Moshe’s death the written Torah was complete and carefully passed from one generation to the next. The Oral Torah was transmitted orally from teacher to student. Rambam, in his Introduction to Mishneh Torah, records who the chief participants in this transmission were.

Until the period of the Zugot (the Sages who lived in the last two centuries before the destruction of the Beit HaMikdash) we find no unresolved debates. Rambam attributes this to two factors, both referred to in the Talmud in Sanhedrin 88b. In his Introduction to Mishna Rambam emphasizes that in earlier periods debates were rare due to the proficiency of the scholars in utilizing the tools of derasha transmitted from Moshe. In Hilchot Mamrim, he notes that when debate did arise it was quickly resolved by majority vote of the High Court.

Before continuing we must consider how debate emerged. There are two basic schools of thought who (not surprisingly) debate this question.

According to the Geonim, every detail of every law was given at Sinai. Debate emerged from the forgetting of those details. Talmudic analysis is an attempt to retrieve that which was forgotten.

According to Rambam certain details were not transmitted at Sinai. Debate emerged from the scholar’s attempts to understand G-d’s intention at Sinai.

Both of these possibilities would seem to take for granted that the transmission at Sinai was clear-cut. Moshe, at the very least, was not confused about the law. This assumption seems reasonable; why would G-d intentionally introduce confusion? However, a number of thinkers understand the Yerushalmi in Sanhedrin (4:2) as teaching that G-d frequently taught Moshe the possibilities without always informing him of the resolution. Indeed, the Yerushalmi records that Moshe was frustrated with the Torah’s ambiguity. G-d responded that the ambiguity is essential insofar as it ensures the Torah’s timeless relevance without undermining the Torah’s eternality and underlying immutability. Moreover, should a debate arise with respect to the Torah’s interpretation, there is a clear method of resolution: follow the majority.

This perspective is adopted by, among others, the French rabbis (ba’alei ha’Tosafot) cited by Ritva (Eiruvin 13b) and Tosafot Shantz (Eiduyot 1:5).

Conceptually this perspective is much closer to that of Rambam’s insofar as it insists that many of the details of the laws were not conclusively given at Sinai. Of course, just because G-d refused Moshe’s request to resolve certain matters of halacha does not mean that no concrete rulings were issued at Sinai. It does imply, though, that the matters debated in the Talmud, or at least the resolution to the disagreements concerning biblical law that were debated by Beit Hillel and Beit Shammai, were not given at Sinai.

 

Stage 2: The Zugot

When the Jewish people returned from the Babylonian exile a high court was established known as the Anshei Knesset ha’Gedola or the Men of the Great Assembly. This court included luminaries like Ezra, Mordechai, Chagai, Zecharya, and Malachi. The last member of this court was Shimon ha’Tzadik. His death marks the beginning of the period of the Zugot.

While there were halachic debates during Stage 1 (see Sanhedrin 19b), they were resolved by Sanhedrin. The first sustained debate, regarding the laws of semicha (leaning upon an animal being offered as a sacrifice), took place during the period of the Zugot or pairs.

Zugot refers to the 200-year period (approx. 170 BCE – 30 CE) during the time of the Second Temple in which the spiritual leadership of the Jews was in the hands of five successions of “pairs” of religious teachers, with one of the pair serving as nasi (lit. “prince” or president of the High Court) and the second as av beit din (lit. “father of beth din” or chief justice). They were:

1. Yosee b. Yoezer and Yosee b. Yochanan, at the time of the Maccabean wars of independence
2. Yehoshua b. Perachiah and Nittai of Arbela, at the time of John Hyrcanus
3. Yehuda b. Tabbai and Shimon b. Shetach, at the time of Alexander Yannai and Salome Alexandra
4. Shmaya and Avtalion, at the time of Hyrcanus II
5. Hillel the Elder and Shammai, at the time of King Herod the Great.

Why was it at this point that we find the first unresolved debate? Scholars suggest a number of answers, many of which are presented in Chapter 28 of Illuminating Jewish Thought Vol. 3. The solutions can be divided into two categories: (1) Historical factors which presented resolution, including persecution, weakness in Torah, and the discontinuity of the Sanhedrin. (2) The conscious decision to leave certain questions unresolved. By doing so, the Sages taught the value of legitimate debate and set the stage for the further development of the Torah she’ba’al peh (Oral Law) that would flower in the coming centuries. These considerations notwithstanding, there were only a total of four unresolved debates prior to the deaths of Hillel and Shammai.

Next week, we’ll consider how debate proliferated following the deaths of Shammai and Hillel to the point that it became as though “there were two Torahs.”

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Rabbi Netanel Wiederblank is a Maggid Shiur at RIETS where he teaches Gemara, Halacha, and Jewish Philosophy. He has written “Illuminating Jewish Thought: Faith, Philosophy and Knowledge of God” and “Illuminating Jewish Thought: Explorations of Free Will, the Afterlife, and the Messianic Era,” published by Yeshiva University Press and Maggid Books. He lives in Passaic with his family.
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