We Do Not Live According to the Mishnah

“For we learn: All movable objects induce uncleanness by the thickness of an ox-goad. Said R’ Tarfon, May I bury my children [he regrets the Torah which had been forgotten and curses himself–Rashi] if this is not an erroneous halacha, for the hearer heard [a ruling] and erred [therein]” (Shabbat 16b; this mishnah is quoted from Tractate Ohalot chapter 16, mishnah one).

In this essay we will clarify how our rabbis related to the Mishnah. All who read and examine what we wrote about the weekly portions (particularly on the portion of Shoftim) will immediately see that we do not live according to the Torah (the Pentateuch) but according to the Oral Torah which has the power to uproot what the Written Torah says. Here we will clarify that we do not live according to the Tannaim who wrote the Mishnah.

On one hand, our rabbis say, in Berachot 5a, that the Mishnah is treated as though it were from Sinai: “Rabbi Levi the son of Hama said that Rabbi Simon the son of Lakish said: It is written, ‘And I will give to you the stone tablets with the teachings and commandments which I have inscribed to instruct them’ (Exodus 24:12). ‘Stone tablets’–these are the Ten Commandments. ‘Teachings’–this is the Scriptures. ‘Commandments’–this is the Mishnah, ‘which I have inscribed’–these are the Prophets and Writings, ‘to instruct them’–this is the Talmud, to teach you that all are given to Moses at Sinai.”

Eiruvin 54b: “Our rabbis taught: How was the Mishnah organized? Moses learned from the mouth of the Glory. Aaron entered and Moses taught him his portion. Aaron went away and sat to the left of Moses. His sons entered and Moses taught them their portion. They went away; Eleazar sat to Moses’s right and Itamar to the left of Aaron.”

On the other hand, our rabbis say in Sukkah 20a: “Resh Lakish said: May I suffer for the expiation for Rabbi Chiya and his sons — for, in the beginning, when the Torah was forgotten by Israel, Ezra came up from Babylon and restored it. Once again it was forgotten and Hillel the Babylonian came up and restored it. Once again it was forgotten and Rabbi Chiya and his sons came up and restored it.”

Thus testified R’ Hanina in Bava Metzia 85b: “Rabbi Hanina said to Rabbi Chaya:…G-d forbid, if Israel forgets the Torah I will return it through casuistry!” [for he was a sharp man].

Thus wrote Rashi on Tractate Bava Metzia 33b: “This statement is dated to the days of Rabbi [R’ Judah ha-Nasi] — the one which says that there is nothings greater than study of the Talmud. For once the students of Shammai and Hillel multiplied, three generations before [Rabbi], many disagreements arose about the Torah and it became as two different Torahs, due to the yoke of the kingdoms and the decrees that were issued against [the Jews]. Therefore they could not clarify the disagreements until the days of Rabbi, to whom the Holy One, blessed be He, gave favor in the eyes of Antoninus king of Rome, as is said in Avodah Zarah (10b). Their persecution abated and he sent for and gathered all the scholars of the Land of Israel. Until his day there were no ordered tractates, but each student who heard something from his teacher retained a version and made himself hints to recall it: This law I heard from this man in the name of that man. And when they gathered, each said what he had heard, and they clarified the reasons for the disagreements to see whose words it was appropriate to uphold, and they put tractates in order–the matters of damages in one place, of levirate marriages in another, and of sanctified things in another. They also included single opinions which Rabbi agreed with and quoted them without attribution, to establish the law according to them. Therefore the Gemara says, ‘There is nothing greater than this’ — for they clarified the reasoning of the Mishnah.”

Anyone who looks at the content of the Mishnah will immediately see that it was written during the Second Temple period and afterwards, until the Mishnah was finalized by Rabbi (d. c. 225 CE). Just to illustrate, it is clear that all the mishnahs taught in Tractate Megillah were not received by Moses from the Glory and that he did not give them to Joshua; we have already quoted Maimonides, in the portion of Lech Lecha, from Sefer HaMitzvot, first principle: “And they counted [as one of the 613 commandments] the lighting of Chanukah candles, which was instituted by the Sages of the Second Temple period, and the reading of the scroll [of Esther]. While there are those who say that Moses was told at Sinai to command us that at the end of the days of our sovereignty such and such will happen to us with the Greeks and we will be obligated to light the Chanukah candles, I can not see that anyone would imagine so or think thus.”

The same is true for all mishnahs which deal with the laws of fasts for the destruction of the Temple and many other issues like this.

Before we see how this may be reconciled with the saying that the Mishnah was given to Moses at Sinai, it is worthwhile to clarify that the Amoraim themselves did not always see the Mishnah as given at Sinai, but discussed it based on their own judgement; we find Rabbi Tarfon (in the mishnah brought at the start of this essay) disagreeing so strongly with the tradition expressed in this mishnah that he was greatly dismayed over the Torah having been forgotten. Thus, too, did the Amoraim treat the Mishnah, in which it is possible that distortions had been introduced.

We will bring several examples to show you that the Amoraim treated the Mishnah not as something clear and sealed, given at Sinai, but as a matter for discussion. The Mishnah in Tractate Niddah 13b: “The deaf woman and the mentally incompetent and the blind and one who has gone mad–if they have supervision [someone who is not blind], they check the woman [to see if she has niddah impurity], and the woman eats from the terumah.”

Thus writes the Gemara: “‘The blind.’ But the blind woman checks herself and shows it to her friend! R’ Yossi the son of Rabbi Hanina said: The blind woman is not in the original mishnah.” So you see that through study the Amoraim removed the blind woman from the Mishnah.

Similarly, the mishnah in Tractate Shabbat, chapter seven, 73a, speaks of “one who salts and cures” a deer’s skin. The Gemara asks in 75b: “But salting and curing are identical? R’ Jochanan and Resh Lakish both said: Omit one of these and insert the tracing of lines.” About this Maimonides wrote in his commentary on the Mishnah: “And they said that salting and curing are not two separate actions, for salting the skin is one of the ways of curing. It is mentioned to teach you that salting is a method of curing and they completed the count of 39 actions with the tracing of lines. But the Tanna erred in not mentioning it when this [mishnah] was written, having thought that it is one of the kinds of writing.” So you see that the text of the Mishnah was not given at Sinai, but the Tannaim wrote it and in this case even erred.

Similarly in many cases we find that the Amoraim study the Mishnah and proof it, and the Tosefta testifies to this. The Rosh on Tractate Berachot chapter three, paragraph 34: “An Amora has the power to changes a baraita…Of what is this said? When the Amora knows the baraita and changes it.”

See something amazing. The Mishnah in Tractate Niddah 7b rules: “The halacha is as Rabbi Elezar.” But the Gemara there says about this: “We do not learn Halacha from the Talmud,” and Rashi explains: “‘We do not learn Halacha from the Talmud’ — from the Mishnah and the baraitas where it is taught that the Halacha is according to so-and-so. We do not learn from them, for the later Amoraim were exacting in the reasoning of the Tannaim and clarified the Halacha, but the early ones were not precise about each others’ words; everyone merely taught his students what he had heard from his rabbi as tradition, and this was called Mishnah and baraitas. This one gave this reasoning for his tradition and that one gave a different one, as is said, ‘A man should study and subsequently understand’ (Shabbat 63a). This understanding was called the Talmud in the days of the Tannaim and the Mishnah in which a Halachic ruling is taught based on their learning is studied but not considered reliable.”

Thus wrote the Rosh in Tractate Sanhedrin chapter four, paragraph six: “The later Amoraim sometimes disagreed with the earlier ones, and we hold onto the words of the later ones, since they knew the reasoning of the earlier ones and their own and decided between the reasonings and found the point of each thing. We therefore do not learn Halacha from the Shas but from the words of the Amoraim we learn Halachic rulings, even though the Tannaim were greater than the Amoraim.”

Thus wrote the Rashbam on Bava Batra 130b, s.v. ad shyomru lo halacha l’maaseh: “…They said we don’t learn Halacha from the Mishnah…If the Gemara does not rule Halacha to be in accordance with a certain opinion [in the Mishnah], we do not rely on the Mishnah’s ruling. Yet, we do rely on the halachot which the Amoraim ruled, for they were established and written by Rav Ashi and Ravina, who are the end of the instruction, and we certainly rely upon them.”

These are explicit words, saying that we should not rely upon nor rule according to the Mishnah, but according to the Talmud alone, and even though the Amoraim are lesser than the Tannaim, they are the ones who determine and they have the power to change the baraitas and proof the Mishnah and disagree with Halachic rulings found in the Mishnah.

Therefore they said, in Tractate Sotah 22a: “It is taught: Those that recite laws destroy the world…Ravina said: because they give rulings based on the mishnahs that they know.”

Now see something wonderful. In the portion of Vayelech we quoted the Rosh in Laws of a Torah Scroll, section one: “‘And now write for yourselves this song.’ That is, one should write a Torah Scroll in which this song is written… In earlier generations they would write a Torah scroll and learn from it. But now, that we write a Torah scroll and leave it in the synagogue to read from it in public, it is a positive commandment for each person who can afford it to write the whole Pentateuch, the Mishna, the Gemara, and the commentaries so that he and his sons may study them, for the commandment of writing a Torah scroll is to learn from it, as is written, ‘And teach the Children of Israel to have it in their mouths,’ and from the Gemara and the commentaries one will know the meaning of the commandments and the laws clearly; therefore these are the books which a man is commanded to write and they may not be sold except for the study of Torah or to marry a woman.”

Thus the words of Rabbi Tanchum the son of Chanilai in Avodah Zarah 19b became null and void: “R’ Tanchum the son of Chanilai said: A man should always divide his learning in three — one third Scriptures, one third Mishnah, one third Talmud.”

Who amongst those fearful of G-d divides his time among the Scriptures and Mishnah? The scholars’ whole occupation is with the Talmud, every day of their lives, and thus wrote the Tosafot on Tractate Sanhedrin 24a, s.v. belulah b’miqra uv’mishnah: “Rabbeynu Tam explained that in learning the Talmud we are exempt from what the Sages said, ‘A man should always divide his learning in three — one third Scriptures, one third Mishnah, one third Talmud.”

This will be a sign for you that we do not live according to the Scriptures or to the Mishnah but according to the Talmud. In Bava Metzia 33b it is written: “Rabbi Judah the son of Rabbi Ilaei expounded: What does the Scripture mean, ‘Hear the words of the Lord, you who are concerned about His word’ (Isaiah 66:5)? These are the scholars; ‘kinsmen’–these are the Scriptural masters, ‘who hate you’–these are the masters of the Mishnah…”

This, precisely, is the treatment of masters of the Scriptures and Mishnah, according to whose words we do not live.

Now we will return to our question. Why do our rabbis treat the Mishnah–which it is clear to any reasonable person was authored in the Second Temple period–as though it had been given at Sinai?

We have already given the answer to this question in several of our essays. See the portion of Bo, and any enlightened person should read it well. We will bring a quote from our words there: “This is how things stand and it is possible that this is also the opinion of the Great Eagle, Maimonides: as all the halachot and rulings the sages determined from their own sense and deduction, according to their times, and they did not really get them as received tradition back to Moses, so, too, they determined their validity and stringency. There are those they determined as the rule of the Torah and those are more strict, there are those they determined as Halacha given to Moshe at Sinai, and there are those they determined as a restriction added by the Sages. Now it is understandable why Maimonides listed restrictions added by the Sages as Halacha given to Moses at Sinai; understand this foundation well.”

And in the portion of Vayera we wrote: “For this is one of the bases of halachic Judaism. When one says, ‘usage handed down from Moses at Sinai’ he does not mean that Moses handed it to the sages and down through our time, but that the sages were exacting, using their own opinion that this was what should have been written. They changed, through their own opinion, what was written, and then determined it was usage handed down from Moshe at Sinai.”

As we wrote about the sanctity of the letters of the Torah (in the essayThe Variety of Torah Texts): “Just as the Halacha is a human creation accepted by public mandate, so what we accept as the Torah text is absolutely based on human Halachic determination.”

This is our opinion about the creation of the Mishnah. It was not really given to Moses at Sinai; it is a Halachic determination to relate to the authority and validity of the Mishnah as though it were given at Sinai.

Words of True Knowledge