No mitsvah is as essential to Judaism as the study of Torah.[i] There are different parts to Torah study, as the Gemara states: “A person should split up his learning: one third Bible, one third Mishnah, one third Talmud.”[ii] Nowadays, most Orthodox students focus on the Talmud, spending many hours each day involved in its study. Yet, many do not know the nature of the mitsvah in which they are involved. This paper will focus on understanding this “third part” of Torah – Talmud. In order to reach a deeper understanding of its nature, it will explore the development of Talmud study and Oral Law over history.
The Nature of the Oral Torah and Talmud Study
To understand the mitsvah of Talmud, one must understand how Jews learned in the centuries before the Mishnah was written down. The only written texts they used the 24 books of Tanakh, as there was a prohibition against writing down the Oral Torah. As the Gemara states:[iii]דרש רבי יהודה בר נחמני מתורגמניה דרבי שמעון בן לקיש, כתיב: +שמות ל”ד+ כתוב לך את הדברים האלה, וכתיב: +שמות ל”ד+ כי ע”פ הדברים האלה, הא כיצד? דברים שבכתב אי אתה רשאי לאומרן על פה, דברים שבעל פה אי אתה רשאי לאומרן בכתב. דבי רבי ישמעאל תנא: אלה – אלה אתה כותב, ואי אתה כותב הלכות.
“R. Judah b. Nahmani, the public orator of R. Simeon b. Lakish, discoursed as follows: It is written (Exodus 34), ‘Write thou these words,’ and it is written, ‘For according to the mouth of these words.’ What are we to make of this? — It means: The words which are written down you art not at liberty to say by heart, and the words transmitted orally you are not at liberty to recite from writing. A Tanna of the school of R. Ishmael taught: [It is written] ‘These’: these you may write, but you may not write ‘halakhot.’”
How was Oral Law learned before it was written down? Furthermore, why was it not permitted to write the Oral Law? It would have helped the spread of information if the halakhot were written down and not just memorized!
An important aspect of the study of Talmud is that it provides the opportunity for the advanced student to think, innovate and apply his conclusions to practice. One can study any text, but the highest level is to study God’s Word itself rather than any intermediary commentary. The masorah of Torah shebe‘al peh gave the student the principles of learning and some halakhot, but he would then derive the sources for halakhot from the Penetauch itself and apply the principles to new cases of halahah..[iv] Not every detail of every law could always be remembered, but this methodology allowed people to constantly rediscover the laws in the Torah itself.[v] There was a constant connection with the Divine word. The actual learning did not consist of reading a frozen text, but was a lively discussion of the Torah itself. The oral nature also allowed for different people to each teach and learn in their own style, since there was no text confining them. This is how Rabbi Sherira Gaon (c. 906 – 1006) describes teaching before the Mishnah was written down:
Despite the unanimity among the sages in the underlying principles and teachings, each sage taught his students with whichever order and whichever method he preferred.… Some taught general rules; others added details; and others expanded and offered many, many examples and analogies.[vi]
The prohibition on writing the oral law allowed Jews to always be connected with the Divine word itself. The study of Torah was not about the spread of information, but about this connection to Sinai.[vii]
The History of the Study of Talmud
This oral manner was the ideal mitsvah, and this is how Jews learned since the Torah was given. In the words of Rambam:אלא מה שיעשה יהושע ופינחס בעניני העיון והדין הוא מה שיעשה רבינא ורב אשי.[viii]
Yet the oral manner of study was not able to continue unchanged. Due to persecutions and hardships, the Oral Law came in danger of being forgotten and was therefore partially written down. Yet, even after Torah she-be-al peh was codified, the nature of learning did not radically change. People tried to maintain as much of the oral nature of Torah study as they could. The Mishnah was mostly recited from memory, as were the beraitot.[ix] In this way, it was comparable to the oral traditions of earlier days. Although there was now a set text of the Mishnah, learning was still similar to before. They would still need to find the sources for the halahot of the Mishnah in the Torah and they would still derive new halahot from the Torah.
Similarly, after the Talmud was written down, people still learned primarily in an oral manner. The Geonim did not learn from a written text of the Talmud, but recited it orally. They were not as bound to the specific wording of the text, but recited the general discussions of the Talmud. Some may never have even used a written Gemara text.[x] Their focus was less on analyzing and comparing the Gemarot themselves and more on partaking in the Talmudic process.
Eventually, the Jews left Babylon and the era of the Geonim ended. The oral nature of Talmud could no longer be maintained in the far-flung lands in which the Jews found themselves. How would the study of Talmud continue? Different schools of learning in Ashkenazi and Sepharadi lands developed their own approaches. We will focus on how Rambam (from Sefarad) and Tosafot (from Ashkenaz) viewed the mitsvah of Talmud in their times. Their views on this subject can be seen both in their discussions of the mitsvah and in the way they themselves learned.
Talmud According to Rambam
Even though hundreds of years had passed since the writing of the Talmud and hundreds more since the compilation of the Mishnah, Rambam still describes the fundamental mitsvah of Talmud as if there had been no change to the original nature of the Oral Law:ושליש[xi] יבין וישכיל אחרית דבר מראשיתו ויוציא דבר מדבר וידמה דבר לדבר ויבין במדות שהתורה נדרשת בהן עד שידע היאך הוא עיקר המדות והיאך יוציא האסור והמותר וכיוצא בהן מדברים שלמד מפי השמועה, וענין זה הוא הנקרא גמרא.[xii]
The Rambam’s description is very similar to the mitsvah as described above and to what the Talmud itself does. He explains the mitsvah of Talmud as being focused on the primary source, the Torah, and understanding and analyzing it based on the oral traditions. Rambam does not say that the mitsvah of Talmud consists of analyzing earlier generations’ statements. Furthermore, Rambam attacks the focus on intermediary sources:
Such is the mentality of even the elect of our times that they do not test the veracity of an opinion upon the merit of its own content but upon its agreement with the words of some preceding authority, without troubling to examine that preceding source itself.[xiii] [xiv]
While it is clear that Rambam does not consider the writings of the Geonim to be binding, his views on the authority of the Talmud are more nuanced. The Talmud itself is not (That is because almost all of what the rishonim knew of the Torah shebe‘al peh was from the Talmud, as they had few separate oral traditions.[xv] Yet, this does not mean that the Talmud’s conclusions are the final word on every matter. Since Rambam views the fundamental mitsvah of learning Talmud as being focused on understanding the Divine word above any intermediary source, he sometimes even breaks with the apparent conclusion of the Talmud. He views Talmud study as partaking in the same process the Talmud did, which allowed for greater authority in ruling.
the halakhic process. For instance, Rambam extensively uses relies upon Midrashim and the Talmud Yerushalmi, sometimes ruling in accordance with a passage in the Yerushalmi over an apparently conflicting passage in the Bavli[xvi] [xvii] . He sometimes ruled in accordance with a Hava Amina of the Gemara.[xviii] At times, he even seems to focus more on the primary source in a passage than the explanation of the Talmud Bavli itself (though normally without contradicting the Bavli),[xix] [xx] or follows a different explanation of the Mishnah than that of the Gemara.[xxi] These bold rulings are all in accordance with his view of Talmud.
The Rambam felt that the main purpose of talmud Torah was to understand the halahot themselves and know how to apply them. Even the Talmud Bavli is a means toward understanding the fundamental components of Torah she-bi-ketav and Torah she-be-al peh, not an end unto itself. And since the halakhot themselves are fundamentally oral in nature, people should not be bound to specific texts to be able to learn them. Thus, Rambam wrote two important works, the Perush ha-Mishnayot and the Mishneh Torah, which provided alternatives to the Talmud as means of acquiring halakhic knowledge.[xxii]
Talmud According to Tosafot and the French Rabbis
Other Rishonim understood the nature of Talmud differently. Rashi explains the nature of Talmud that the Tannaim studied as follows:תלמוד[xxiii] – זו היא סברא, שהיו התנאים אחרונים מדקדקים בדברי הראשונים הסתומים לפרשם וליתן בהן טעם, כמו שעשו האמוראים אחר התנאים שפירשו דברי התנאים שלפניהן וקבעו בהן גמרא, ואותו דיוק שבימי התנאים נקרא תלמוד.[xxiv]
Perhaps, according to such a definition, one can say the fundamental mitsvah of Talmud is to analyze and compare the words of the previous period of scholars. This fits well with the view of R. Isaac ha-Levi Rabinowitz, in his Dorot Ha-Rishonim,[xxv] that the derashot that the sages seem to derive directly from the Torah are in fact derived from the analyses of scholars in the previous period.[xxvi]
This approach to the mitsvah of Talmud can be seen in the way the French rabbis after Rashi themselves learned. Tosafot developed new ways in the study of Talmud. They compared various passages in the Talmud and tried to resolve contradictions and explain differences. They studied the Talmud in a similar way as the Talmud studied the Mishnah. This was a novel approach. The Geonim did not compare different passages of the Talmud as extensively as the Ba’alei ha-Tosafot did since they partook in its own analyses. The Ba’alei ha-Tosafot moved the focus of analysis one step further away from the original biblical source, from working within the Talmudic process to analyzing the Talmud from the “outside”. This shift may have caused a lessening of the importance of the study of the primary sources. The Gemara mentioned earlier states that a third of one’s learning should be of Mikra, a third of Mishnah, and a third of Talmud. Yet Tosafot states:
בלולה במקרא ובמשנה וכו’ – פירש רבינו תם דבתלמוד שלנו אנו פוטרין עצמנו ממה שאמרו חכמים (מסכת ע”ג דף יט.) לעולם ישלש אדם שנותיו שליש במקרא שליש במשנה שליש בש”ס. אע”פ כן אנו קוראים בכל יום פרשת התמיד ושונים במשנת איזהו מקומן וגורסין רבי ישמעאל אומר בשלש עשרה מדות וכו’[xxvii]
According to Tosafot, the study of Talmud can possibly replace all of talmud Torah. This is clearly very different from Rambam’s focus on the Torah itself.
A Deeper Examination
It is possible that the difference between Rambam and the French rabbis in their views on learning Talmud relates to their different conceptions of yeridat ha-dorot.The approach of Tosafot is compatible with acceptance of a literal understanding of yeridat ha-dorot – that each generation, or era, was at a lower level than the previous generation.According to this understanding, it is clear why Talmud would consist of analysis of previous generations’ statements. It would be presumptuous for later generations to independently interpret the words of much earlier sources. Each generation can only try to understand the previous generation’s explanations of the more primary sources. This would also explain why the Ba’alei ha-Tosafot view the Talmud as the absolute final word on a matter.
Rambam may have had a different conception of historical decline. In the quote cited above from his Introduction to Sefer ha-Mitsvot, Rambam seems to imply that part of yeridat ha-dorot is because people just accept a preceding authority:[xxviii] According to Rambam, there were other factors that may have caused the decline, such as persecutions, dispersions of Jewry, and collapses of central rabbinic authority.[xxix] Later generations may have forgotten some of the Torah that the earlier generations knew. There were circumstances that caused a decline, but Rambam does not appear to believe in a historical rule of steady decline. There are important reasons for accepting the authority of the Talmud, and can also explain why Amoraim accepted the authority of the Tannaim. Yet they are not as fundamental reasons as the Tosafists’ understanding of yeridat ha-dorot, and this allows for greater independent analysis for later generations. This helps explain why the Rambam understood the fundamental mitsvah of Talmud as being focused on the primary sources rather than on intermediary commentaries. It also explains why he was able to use greater authority in his own rulings.
Elu Va-Elu
It is possible that Rambam and the French rabbis also understood the concept of mahaloket (argument) differently, or more specifically, the Talmudic dictum of “Elu va-elu divrei E-lohim hayyim” (“These and these are the words of the living God”). The Talmud describes the disputes between the School of Hillel and the School of Shammai:
אמר רבי אבא אמר שמואל: שלש שנים נחלקו בית שמאי ובית הלל, הללו אומרים הלכה כמותנו והללו אומרים הלכה כמותנו. יצאה בת קול ואמרה: אלו ואלו דברי אלהים חיים הן, והלכה כבית הלל.[xxx]
Ritva (ibid.) wonders how both sides of an argument can be true:
אלו ואלו דברי אלהים חיים. שאלו רבני צרפת ז”ל היאך אפשר שיהו שניהם דברי אלהים חיים וזה אוסר וזה מתיר, ותירצו כי כשעלה משה למרום לקבל תורה הראו לו על כל דבר ודבר מ“ט פנים לאיסור ומ“ט פנים להיתר, ושאל להקב“ה על זה, ואמר שיהא זה מסור לחכמי ישראל שבכל דור ודור ויהיה הכרעה כמותם, ונכון הוא לפי הדרש ובדרך האמת יש טעם וסוד בדבר.[xxxi]
Ritva, citing the French rabbis, understands “elu va-elu” literally: God showed Moses many possibilities within every matter, there was no single original truth. Every view can be considered the exact truth of God at Sinai!
This understanding of elu va-elu can be seen in the Ba’alei ha-Tosafot’s approach to the mitsvah of Talmud and in their own analysis of the Talmud.[xxxii] As mentioned above, Tosafot understood the mitsvah as being focused on intermediate sources. But what if the intermediate source explained the primary source incorrectly? One will be so focused on the intermediate source that he may not even try to understand the true explanation of the primary source! Yet, if one understands “elu V’Elu” literally and applies it broadly, this is not a problem. both sides of a dispute are true and surely when there is no dispute! This also allows Tosafot to analyze both sides of many disputes. each generation may add another layer of analysis, but then both sides can be analyzed themselves as a true view. This may also explain why Tosafot do not emphasize final conclusions, but often cite many views on a matter.
Rambam never mentions elu V’Elu and considers mahloket as something that should be resolved with proper reason. He thinks the primary focus of one’s learning should be to reach halakhic conclusions, not analyze mahloket. He specifically omits all makhloket from his Perush ha-Mishnayot and the Mishneh Torah, and only renders final conclusions. This is consistent with his explanation of the mitsvah of Talmud as being focused on primary sources. If one analyzes intermediary sources, he may correctly understand them but still be incorrect. The Rambam also tried to maintain this primary focus himself.[xxxiii] The ideal focus of Talmud is on the Divine word itself.
Contemporary Learning
The custom nowadays in most yeshivot is for students to spend most of their learning analyzing the words of the rishonim and acharonim. They often ignore the study of more primary sources, from Tanakh to Mishnah to even broad knowledge of the Talmud itself. This custom clearly does not fit with the opinion of the Rambam, who criticizes such reliance on secondary sources and emphasizes reaching final halakhic conclusions. He also states the obligation to learn Tanakh and Mishnah, without exempting people by studying the Talmud.[xxxiv] Perhaps modern practice can be justified on the basis of the views of the French rabbis, who explain the nature of Talmud as analysis of an earlier generation’s words and exempt students from focusing on Mikra andpossibly Mishnah.Yet, even Tosafot would probably not approve of modern-day learning. Although the Ba’alei ha-Tosafot may have put a lesser emphasis on the study of Tanakh, they surely did not ignore it completely![xxxv] They clearly knew the subject matters that they studied very well! Yet, many students only cover a few folios a year, studying tiny details within an achron while remaining ignorant of vast areas of the Talmud and the Torah.[xxxvi] This was unheard of even a hundred years ago and has little justification in any earlier source. Perhaps there should be a greater focus on learning and analyzing the primary sources of the Torah. The Tanakh and the works of Hazal are also worthy of one’s focus.[xxxvii]
Abstract:
The idea of an Oral Torah that cannot be written down seems strange to many people in modern times. Yet, its oral nature helped Jews always keep a connection to the Divine word itself. Even after it was written down, there was always an effort to maintain its oral nature. After the continued dispersion of Jewry, different views emerged about the nature of Talmud. This paper examined the view of Rambam and of Tosafot. Their different outlooks are seen in their explanation of the mitsvah of Talmud and in their approach to many other areas, from their approach to pesak to the study of Tanakh. The deeper difference between their views may be reflected in alternate understandings of yeridat haDorot and “Elu V’Elu”. Whatever path people ultimately find in their learning, a reflection on these issues should still be helpful. As long as their learning continues in the traditions of the past, perhaps each derekh can be considered “eilu va-eilu.”[xxxviii]
[i] אין לך מצוה בכל המצות כולן שהיא שקולה כנגד תלמוד תורה אלא תלמוד תורה כנגד כל המצות כולן שהתלמוד מביא לידי מעשה, לפיכך התלמוד קודם למעשה בכל מקום (רמב”ם הלכות תלמוד תורה פרק ג).
[ii] Kiddushin 30a.
[iii] Gittin 60b.
[iv] See the quote further on from Hilkhot Talmud Torah 1:11, in which Rambam explains what Talmud study consists of.
[v] There was always the possibility of rediscovering forgotten halakhot:
במתניתין תנא: אלף ושבע מאות קלין וחמורין, וגזירות שוות, ודקדוקי סופרים נשתכחו בימי אבלו של משה. אמר רבי אבהו: אעפ”כ החזירן עתניאל בן קנז מתוך פלפולו (תלמוד בבלי מסכת תמורה דף טז עמוד א).
[vi] Translation from R. Nosson Dovid Rabinowich, The Iggeres of Rav Sherira Gaon (Jerusalem: Rabbi Jacob Joseph Press – Ahavath Torah Institute; Moznaim, 1988), p. 15.
[vii] See how the Talmud (Kiddushin 30a) explains an important verse about talmud Torah that states the importance of this connection to Sinai:
אמר ריב”ל: כל המלמד את בן בנו תורה, מעלה עליו הכתוב כאילו קבלה מהר סיני, שנאמר: והודעתם לבניך ולבני בניך, וסמיך ליה: יום אשר עמדת לפני ה’ אלהיך בחורב.
[viii] “Just as Joshua and Pinehas studied in matters of analysis and law, so did Ravina and R. Ashi (the last of the Amoraim).” Rambam’s Introduction to the Mishnah. Although some Rishonim may say there were some developments over time, I think all would agree to the basic idea that Jews were always involved in the same basic study of Torah she-be-al peh.
[ix] See, for example, Yaakov Elman, “Orality and the Redaction of the Babylonian Talmud,” Tradition 14:1 (1999): p. 52-99.
[x] See Robert Brody, “The Talmud in the Geonic period,” in Printing the Talmud – from Bomberg to Schottenstein (p.31 -32). He quotes Rabbi Aaron Sarjado Gaon (gaon and head of the academy at Pumbedita from 942–60) who says that most of the academy “does not know what a book is.” Brody argues that their style of learning was different because of its oral nature.
[xi] The Rambam is referring to the proper division of one’s torah studies. Based off the gemara in kidushin (30a), he says that the proper allotment of time to spend on talmud is one-third of a person’s learning hours.
[xii] Mishneh Torah, Hilkhot Talmud Torah 1:11. The full quote: “A person is obligated to divide his study time in three: one third should be devoted to the Written Law; one third to the Oral Law; and one third to understanding and conceptualizing the ultimate derivation of a concept from its roots, inferring one concept from another and comparing concepts, understanding [the Torah] based on the principles of Biblical exegesis, until one appreciates the essence of those principles and how the prohibitions and the other decisions which one received according to the oral tradition can be derived using them. The latter topic is called Talmud.”
[xiii] From Rambam’s Introduction to Sefer HaMiẓvot. Translation from Kellner, Menachem. Maimonides on the “Decline of the generations” and the nature of rabbinic authority.
[xiv] One can paraphrase the Rambam’s discussion elsewhere as an analogy which will help illustrate what is lost when intermediary layers of commentary replace the primary sources as the new focus of learning:
…People began saying “Since the commentators are servants of the Torah, they deserved to be studied and analyzed… and this is the honor of the Torah.” So they began building sevarot and offering inferences… saying this is the way of the Torah. And after the years passed, people arose and said, “Study this commentator or all the commentators in this way and that way. Eventually, the Holy, Awesome Torah was forgotten from all people…
[xv] See the later discussion of yeridat ha-dorot where Rambam’s view of the Talmud’s authority is explained,as well as the note there.
[xvi]For more on this, see: Herbert Alan Davidson, Moses Maimonides: The Man and his Works ( ), p. 119 and footnote 130. He mentions how there are many examples in which Rambam seems to rule like the Yerushalmi, but the Bavli can be interpreted to accord with it. If this is the case, then it would fit with the idea that Rambam freely interprets a primary source when it does not directly contradict the Talmud Bavli.
[xvii] A possible example in which Rambam follows the Yerushalmi over a possible reading of the Bavli is found in Mishneh Torah, Hilkhot Yesodei ha-Torah 5:5, where Rambam discusses the law of a city sacrificing all the lives of its inhabitants rather than give over one Jew to be killed.Rambam takes his ruling from a Yerushalmi, even though some (the Remach) think the Bavli contradicts it.
[xviii] There are a few examples of these cases in.
[xix] For example, see Kiddushin 6b (concerning one who betrothes with a loan) and 58b (concerning the sprinkling of water from a sin-offering), where Rambam’s explanation seems to be focused on the primary source and gives a simpler explanation of it, even though it does not accord as well with the Gemara. I believe that he may have felt it was preferable to give the best explanation of the more primary source because that reading could be true independent of the Talmud’s explanation. In both examples, other Rishonim give a simpler explanation of the Gem-ara, but their readings do not as easily fit with the more primary sources. For another possible example, see Yad Malakhi Kelalei ha-Rambam #38.
See also the earlier cited case from Yesodei ha-Torah where Rambam seems to focus on the primary sources instead of following the rules of pesak. Rambam rules like like Resh Lakish over R. Yokhanan (though there is a rule in pesak to follow R. Yokhanan) that a city cannot hand over a specified person who is not liable to the death penalty. Kesef Mishneh explains that he follows Resh Lakish because the implications of the tannaic and biblical sources are in his favor. See, however, Yad Peshutah, ibid. who argues that Rambam had a different text.
[xx] This idea of trying to fit with a more primary source or understanding may be seen elsewhere also. For example, the Talmud Bavli often rules in a certain way based on its understanding of the Pentateuch and rules of Derash. An objection is raised from the Mishnah, which the Talmud dismisses with either an answer that seems forced (dohek) or that is a textual addition or emendation (hisura mehsara). The Talmud may recognize that the answer seems forced, but they are basing themselves off a primary understanding of the Torah, and try to avoid outright contradiction with the Mishnah.
[xxi] See many examples of this in Elhanan Samet, Yad la-Rambam: Diyyunim be-Piskei ha-Rambam be-Yad Ha-Hazakah (Ma’aleh Adumim; Jerusalem: Ma’aliyot, 2005/2006). He describes many cases where Rambam rules like a different reading of the Mishnah than that of the Gemara, but also follows the Gemara’s explanation for a different case. See also Joshua Broyde’s article in this edition of Kol Hamevaser for more on this issue.
[xxii] As Rambam states in his introduction to the Mishneh Torah, he felt his work could be read after Mikra, without any work in-between. I.e. the Mishnah Torah is an alternative to studying Mishnah.
[xxiii] The standard Gemara says “Gemara” but the censors often changed the word “Talmud” to “Gemara”.
[xxiv] רש”י מסכת סוכה דף כח עמוד א
Talmud – This is sevara, that the later tannaim would make be medayek in the difficult words of the early ones to explain them and give reasons, just as the amoraim after the tannaim explained the words of the tannaim before them and established the Gemara; that diyuk in the days of the tannaim was called Talmud.
[xxv] Discussed in part I, vol. 5.
[xxvi] This is not to say that the Rishonim themselves held as extreme a view as the Dorot ha-Rishonim, but it suggests a possible alternative outlook to that of Rambam.
[xxvii] “With our Talmud (Babylonian) we exempt oursleves from what our Sages said “A person should split up his learning: one third Bible, one third Mishna, one third Talmud’”
This is found in Tosafot’s commentary on Sanhedrin 24a, s.v. Belulah be-Mikra u-ve-Mishnah, and Tosafot says similarly on Kiddushin 30a, s.v. Lo tserikhah le-yomei, as well.
[xxviii] Menachem Kellner, idem, explains that quote in a similar manner. His book is devoted to arguing that Rambam did not accept the idea of the decline of the generations, but only that the authority of previous generations was accepted. While he may take his claim too far, it is sensible to argue that Rambam had a different view on the matter than Tosafot did. The claim in this section that Rambam viewed yeridat ha-dorot differently is partially based on Kellner’s claim.
[xxix] See, for example, Rambam’s Introduction to the Mishneh Torah:
נמצא רבינא ורב אשי וחבריהם. סוף גדולי חכמי ישראל המעתיקים תורה שבעל פה. ושגזרו גזירות… ופשטה גזירתם ותקנתם ומנהגותם בכל ישראל בכל מקומות מושבותם. ואחר בית דין של רב אשי שחבר הגמרא וגמרו בימי בנו נתפזרו ישראל בכל הארצות פיזור יתר והגיעו לקצוות ואיים הרחוקים ורבתה קטטה בעולם ונשתבשו הדרכים בגייסות ונתמעט תלמוד תורה ולא נכנסו ישראל ללמוד בישיבותיהם אלפים ורבבות כמו שהיו מקודם אלא מתקבצים יחידים השרידים אשר ה’ קורא בכל עיר ועיר ובכל מדינה ומדינה ועוסקין בתורה… אבל כל הדברים שבגמרא הבבלי חייבין כל ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמי הגמרא ולגזור גזירותם וללכת בתקנותם. הואיל וכל אותם הדברים שבגמרא הסכימו עליהם כל ישראל. ואותם החכמים שהתקינו או שגזרו או שהנהיגו או שדנו דין ולמדו שהמשפט כך הוא, הם כל חכמי ישראל או רובם והם ששמעו הקבלה בעקרי התורה כולה דור אחר דור עד משה רבינו עליו השלום.
[xxx] Eruvin 13b. “Rabbi Abba the son of Shemuel said: The House of Shammai and the House of Hillel argued for three years, these said the halakhah is like us, and these said the halakhah is like us. [Eventually,] A voice [from Heaven] declared ‘These and these are the words of the Living God, but the halakhah is like the House of Hillel.’”
[xxxi] The French Rabbis asked, ‘How is it possible that both sides are the words of the Living God, when one forbids and the other permits?’, and they answered ‘When Moses went up on high to receive the Torah, they showed him on every matter 49 views to forbid and 49 views to permit, and he asked God on this, and He said that it will be handed over to the Sages of Israel in each generation, and the ruling would be like them.’ And this is correct according to Derash (homiletics), but [kabbalisticly] there is a reason in the matter.
[xxxii] Much of the following discussion of “elu va-elu” is based on Moshe Halbertal, “Three Medieval Theories of Jewish Law,” in Noam Zion, Elu v’Elu: Two Schools of Halakha Face Off On Issues of Human Autonomy, Majority Rule (Jerusalem: Shalom Hartman Institute, 2008): 49-53, available at: http://www.hartmaninstitute.com/uploads/Holidays/Elu-02062008_0957_45.pdf.
After this section was written, Eliyahu Krakowski showed me Ephraim Kanarfogel, “Torah Study and Truth in Medieval Ashkenazic Rabbinic Literature and Thought,” which provides more examples that demonstrate the Ba’alei ha-Tosafot’s stronger interpretation of “elu v’elu”. It is available online at: http://hsf.bgu.ac.il/cjt/files/Knowledge/Kanarfogel.pdf
[xxxiii] Despite the fact that matters were somewhat different for rishonim discussing the Talmud. See footnote 17.
[xxxiv] In the beginning of the earlier mentioned halakhah (תלמוד תורה פרק א הלכה יא), the Rambam mentions the other two parts of talmud Torah:
“וחייב לשלש את זמן למידתו, שליש בתורה שבכתב, ושליש בתורה שבעל פה”
His only exemption if for one who has “grown in wisdom” who only needs to review the material periodically so he does not forget.
[xxxv] For example, the Ba’alei ha-Tosafot wrote multiple perushim on the Torah, such as the perush of Rashbam (Shmuel ben Meir).
[xxxvi] In some yeshivot, it is now common to only study a few folios a year, even during their “bekiut” seder.
[xxxvii] Despite their lack of haskamot. (R. Moshe Stav)
[xxxviii] At least according to Tosafot. Rambam would probably consider many derakhim to be examples of yeridat ha-dorot.
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