Question:

I believe in my heart that the Five Books of Moses and the Prophets are from G‑d. When it comes to the Talmud, however, I am beginning to believe it was made up over the centuries to control the Jewish believer with all its added laws. The rabbis add scores of laws to each of the 613 commandment and you end up having to obey all kinds of things that were never part of Judasim when it all started.

I guess what I’m saying is that although we claim to believe in the Bible, in reality we are controlled by a small group of old men and their Talmud.

Answer:

I appreciate your concern, since this is the trap institutionalized religions have fallen into time and time again: It starts off with a lot of good ideas, and then come along a priestly cult to hijack those ideas for their own benefit.

The question is, does Judaism include some mechanism to avoid this trap? If, as we say, the Torah is truly a Divine document, you would expect it to foresee all obstacles to its own survival—including this one—and to include some safeguard to prevent it from happening.

The answer, it seems to me, is that this is why G‑d chose Moses, of all men, to be the agent by which Torah would enter earth-space.

Moses was the first populist civil rights leader. Already at a young age, he demonstrated his contempt for abuse of power when he struck and killed an Egyptian taskmaster. He was well aware of the dangers of a hierarchical religious cult, familiar as he was with the priestly cult of ancient Egypt. He cared for the people and empathized with them—so much so, that he even took G‑d Himself to task in Egypt, demanding, “Why have you done evil to this people? Why did you send me?” More than his wisdom, more than his courage, it was this trait of Moses that made him a faithful shepherd of his people. And for this, he was chosen to bring Torah to them.

Moses, the Populist

They say that a prophet hears the voice of G‑d speaking in his own voice.1 In the story of the Exodus and the giving of the Torah, we see how G‑d works with Moses in accordance with Moses’ own style.

Other prophets came and told the people, “This is what G‑d told me. Trust me.” G‑d tells Moses to gather all the people at the foot of Mount Sinai, to hear for themselves the revelation that he hears. When the people complain that they cannot bear such revelation—”You go find out what He wants and tell us”—Moses is sincerely disappointed. G‑d must console him, telling him that this is good, that they should be in such awe—and all Moses has to do is to tell them what G‑d wants and they will do it.

But Moses is not satisfied with that. When he teaches the people—we’re told that all the people participated—he does it publicly, repeatedly, disclosing everything he hears and explaining in further detail. He tells them to teach it to one another and to their children, to speak of it, “when you sit in your house and when you go on the road, when you lie down and when you get up.” He asks the people to bring to him those that they choose as their judges, from the people and of the people, who will judge each case according to the law he has taught them.2 He even urges each person to write down the entire law for himself, so that he can study from it and know it well.

Typical of the Moses approach is the book of Leviticus. Leviticus may be Moses’ most radical productIn Ancient Egypt, the priesthood was an occult, with mysterious rituals and secret knowledge. In Leviticus, that scheme is deliberately overturned. Everything is spelled out in black and white for every Jew to read. The initiation ceremonies are performed before the entire community. The punishments due to the priestly class for improper performance of their duties is spelled out clearly. Any five-year-old would be able to yell out, “Hey, that kohen didn’t sprinkle the blood the way it says in the Torah!” The priests of any society throughout history would have considered this ludicrous and self-defeating. But this was G‑d speaking through Moses the populist, restructuring society.

Pop-Culture

Similarly, with all the legislation of Torah: Moses commands the people again and again to learn all these laws and to know them well. He tells them to write them down and study from the written word. And so, the Jewish people became the first literate society in history—and remained such until the advent of popular literacy in the modern era.

A fascinating tidbit of history: We know that the ancient Egyptians had a sophisticated system of writing, known to us as hieroglyphics, using graphic symbols to represent words and phrases. So complex was their system—using over 2,000 distinct glyphs—that only the initiated few were able to decipher the meanings. Phonetic writing, representing the sounds of the words individually—with only 22 letters—appears first in Canaan. When it spread, it revolutionized culture and thought by making the written word accessible to the general populace. All of the hundreds of historical phonetic alphabets, including our present day alphabet, can easily be traced back to that original aleph-bet. There’s even a vestigial remnant—the letter “Q”, which is useless in Latin and Greek, but represents the Semitic guttural “Quf” (originally made deep in the throat).

What’s not so well known is that the Egyptian hieroglyphs also comprised a complete set of 24 consonants, quite similar to the 22 letters of the Hebrew alphabet. To us, in retrospect, it seems quite puzzling: What prevented them from making the logical step of rejecting all those esoteric symbols and reducing their printing needs to a small and simple set?

To us, a bewildering puzzle. To Pharaoh’s priests, however, it is the question that would be most bewildering: “Why on earth,” they would retort, “would we want to make our hidden code more accessible?”

As the great anthropologist, Claude Levi Strauss, writes, ancient writing’s main function was, “to facilitate the enslavement of other human beings.”

To take that great step needed not a genius but a revolutionary. When Moses transmitted G‑d’s message to his people that they were to be “a nation of priests” and committed the Torah to phonetic writing, he was creating the most significant watershed event in the history of populism: The flattening of the hierarchy of knowledge with the advent of public education and literacy.

Everyone a Moses

If he had stopped there, Moses would without a doubt have been the greatest social revolutionary of all time. But he didn’t. It wasn’t enough for Moses that all Jews be educated. He wanted them to be participants as well, everyone involved in the debate. That’s why he deliberately devised an institution of Torah study and debate, to circumvent just those issues you mention.

Moses didn’t have to go this far. He could have written the book, handed it to his brothers, the Levites, and told them to ensure the masses follow the law. Perhaps the common people would read it as well, even write each man his own copy. But they would read it only as one reads a holy incantation, a script to follow, a path to walk down straightly, without stopping to examine its cobblestones. He could have preserved the hierarchy: The law comes from Above, and the people receive it below.

And what if some new circumstance would arise, the solution for which could not be found in this written Torah? Once again, Moses would have to go to the Divine Authority and ask—as he did in several instances. When he saw that his time of passing was near, he could have appointed his children and confidants to discuss among themselves any difficulties that would arise and issue new rulings in accordance with what he had been taught.

Sure, G‑d told him to teach the people, to ensure that they knew the dos and do nots. But who says he had to empower them to decide new laws, and to incite them to discuss and debate? He could have claimed that this way, the law would remain pure and intact, as received, the Divine Word from Above.

But Moses knew that was a lie. He knew that knowledge in the hands of a minority corrupts both the minority and the knowledge. He knew that truth is only truth when it can sprout forth from the grassroots of the populace. So he urged his people not just to learn the rules, but to debate and discuss, to dig deep into the details and nuances of every word and to find there new meanings, new applications, new wonders of G‑d’s infinite wisdom and its relevance at every time. He taught them the way of the Talmud.

This what Rabbi Yossi, son of Rabbi Chanina, explained.3 He said that in truth, G‑d only gave the Torah to Moses and his descendants. After all, when G‑d told Moses to write the second tablets, He told him, “Write for yourself two tablets of stone…”.

The other rabbis argued with Rabbi Yossi, “But didn’t G‑d tell Moses to teach the Torah to all the Children of Israel?”

But what Rabbi Yossi meant was, as I said, that the instructions of the Torah—”do this and don’t do that”—were for all the Jews. But the power to deduce one thing from another, to examine deeply and unfold the inner workings of the Torah—that was meant for Moses and his progeny alone.

But this was Moses, a man who began his career by striking down the taskmaster to rescue the slave. Who, when his disciple Joshua attempted to muzzle “those who prophesied in the camp,” protested, “Would it be that all the people should be prophets!”4 Who, when told by G‑d that the Jewish nation, having sinned with the golden calf, would have to be erased and rebuilt from Moses’ own progeny, replied, “If this is the way Your story goes, you can erase me from the script!”5 Moses, who smashed the tablets of G‑d to save his people.6

So what did Moses do? He determined that every Jew should be his progeny—just as he had brought every Jew to hear G‑d at Mount Sinai to hear what he heard. They would not only hear the voice, they would participate in knowing it, in resonating with it and in amplifying it further.

In effect, Moses deemed that the collective consciousness of the Jewish nation should be Moses, through whom G‑d’s voice is heard.

Moses and Rabbi Akiva

Moses’ dream was perhaps best realized in a much later leader of popular revolution, a man also from the people and of the people: The famed Rabbi Akiva, a man of humble beginnings who lived his life by humble means, and stood behind the Bar Kochba revolt against the Romans. Rabbi Akiva, when making a crucial decision would take serious account of popular custom, saying, “Let’s go out and see what the people do.”

The Talmud illustrates the relationship of Rabbi Akiva to Moses in the form of a story7:

They told that when Moses went above to receive the Torah, he found the Holy One, blessed be He, sitting and attaching crowns to the letters. (Of course, G‑d doesn’t sit, neither does He need to use cut and paste when composing the Torah. Once you get used to the style of the Talmud, you learn to take these things figuratively. But without them, the story is very dry.)

Apparently, Moses didn’t see any need for these crowns. He asked, “Master of the Universe! Who forces You to go to such extremes?”

G‑d answered, “There is a man who will live many generations after you and his name is Akiva, son of Yosef. He will examine every single spike of every letter and draw from them piles upon piles of halachot.”

So Moses asked, “Master of the Universe! Show him to me!”

G‑d replied, “Step backwards.”

And Moses stepped back until he found himself standing in the 18^th row of Rabbi Akiva’s class. You see, the students were arranged in this class by order of their understanding. It seems the only thing left after the eighteenth row was out in the hallway.

So Moses stood there and listened—and was unable to follow a thing that was said. He became weak with despair. Until finally, the story tells, a ruling came up for which Rabbi Akiva could provide no source. A student asked of Rabbi Akiva, “Where do you learn this from?”

Rabbi Akiva responded, “This is an oral tradition passed down from Moses.”

By those words, Moses was set at ease.

You see, when Moses heard Rabbi Akiva teaching, he was concerned. How could he know for certain that this was the Torah as he had received it? But once he heard that this man was not one to take credit for himself, but rather to quote in Moses’ name, he understood that Rabbi Akiva’s teachings were pure, unadulterated Torah, the same Torah Moses was to receive, only unfolded and unpacked.8

Pop-Tradition

Back to Moses’ “power to the people” revolution: This populist approach was also the distinction between the Sadducees and Pharisees. The Sadducees were an elite class, removed from the common people, whereas the Pharisees – who later were known as the Chachamim – were well integrated with the working class. Most were working people themselves. This is why, after the destruction of the Second Temple, the Romans saw the Chachamim as the only true spokesmen of the people and chose to deal exclusively with them (see Lawrence Schiffman’s “From Text to Tradition”).

That the Chachamim continued this tradition of populism is evident in the tradition that no greater a scholar than Hillel the Elder earned his living as a woodchopper9. So did Rabbi Akiva10. The tradition was still intact centuries later when Rav Huna, while head of the academy of Sura in Babylonia, earned his livelihood as a water carrier11. Similarly, the Talmud provides accounts of the menial trades and crafts of many other respected rabbis.

Consider the context of the era, when menial labor was considered by Greeks and Romans as odious and degrading. Cicero wrote to his son, “Vulgar are the means of livelihood of all hired workmen.12” Members of the Roman upper class were precluded by law to engage in any craft. Work, in their view, was for slaves, not for men. Rabbi Judah the princely leader of the Sanhedrin at that time, on the other hand, taught, “Studying Torah without working will produce nothing and only brings to sin.”13 Indeed, the work ethic extends back to King David himself, “Work with your hands that you may eat, you will be glad and it is good for you.14”

So it continued, up until most recent times, that we were an anomaly among the nations. Throughout most of history, whatever bodies of lawmakers we had appointed were not from an elite class, but composed of men active within common society, concerned with the needs of the common man and sympathetic to his plight. Throughout our history, the rabbis were men who struggled with the same poverty, prejudice and persecution as the rest of us.

How To Make a New Law

This social dynamic is reflected in the method by which legislation is passed in the Talmud and later. Although complex, we can distinguish three encompassing principles that define what makes new halachic legislation binding:

1. The legislation is passed after discussion and debate by a governing body or appointed individual whose authority has been established by consensus of the people.15 At one time, this body was the Sanhedrin, which was composed of scholars and judges who had been accepted by the people in their particular communities and gradually moved up to the highest authoritative body. The decisions of the Sanhedrin were made by majority rule.

At a later date, this authority became the Gaonim of Babylon. Since the times of the early Rishonim, halachic decisions have been the product of intense discussion and debate between diverse opinions on an international scale. Who debates? Whoever has the knowledge and whits.

2. The legislation must be based on strong precedent. No Jewish court ever said, “Let’s make up a new law today” out of the blue. An educated populace would never accept such a law. Rather, as every student of the Talmud can see, every law is either:

a) a clarification of an ambiguous matter of accepted law

b) a stamp of approval on an accepted custom

c) an establishment of required stringency due to extenuating circumstances

This is all clarified in Maimonides’ introduction to Sefer HaMitzvot, as well as in his introduction to his Commentary on the Mishnah.16

This is the way of the Talmud when dealing with a new circumstance: Plunge the depths of the original text of Moses, examining every nuance, following the principles of exegesis that were passed down to us in his name. Compare every known ruling on similar cases, searching for the reasoning behind each one and seeking a harmony between them. Discuss, debate, build and tear down, until an opinion arises that can be accepted by a majority.

If I can provide my own parallel: The process of devising a new halachah is not much different than the process of good environmental design.Halachah and environmental design have much in common It’s perfectly possible to build a factory in the middle of a forest without adversely impacting the ecology of the wildlife and resources—it just takes a thorough knowledge of the dynamics of that ecology and a desire to leave no footprint behind. Similarly, any decision in halachah can only be enacted after weighing into consideration the entire gamut of pre-existing Jewish law and custom. One can say that halachah grows organically, without grafting or genetic modification.

3. Perhaps most significant: Every new legislation is contingent upon its acceptance by the Jewish community at large. A striking example (real brief): At one point in the history of the Sanhedrin, the Schools of Shammai and Hillel passed several key points of legislation, including a prohibition against using the olive oil of a gentile. They also declared that none of this legislation could ever be overturned. Yet, years later, the Bet Din of Rabbi Judah the Prince overturned their ruling and ruled that this oil was permissible. How were they able to do this? Simply because they saw that the original legislation had never become accepted by the community17.

Similarly, in each community, there are rulings made by the accepted authoritative body of that particular community. Not only do these rulings not apply to another community, but if they are not accepted by the members of that particular community, they are subject to reversal.

And we are not speaking of ignorant masses. In every community, whosoever has the mind to do so is urged to learn the ways of the Talmud from his youth, so he, too, can fathom the rationale of any decision.

Under Divine Authority

In sum, the process of halachah is a populist dynamic, by the people, for the people, yet simultaneously, on the authority of Divine Law.

This is the answer to your question, where do these rabbis get the authority to make such laws to begin with? The answer is that they receive it from three sources: From G‑d, from Moses and from the people.

From G‑d, because the Torah itself provides ample authority to the seventy elders and to the “priests and the wise men who will be in your times” to answer “all that is difficult for you” to the point that “you should not turn from their words to the left nor to the right.”18 (Click here to see those verses in their context.)

From Moses, as we have seen, that he decided those wise men should be from the masses, and that all the people should learn to be wise. It was Moses, after all, who declared that the Torah is no longer in heaven “that you should say, ‘who will go up to heaven and get it for us?’”.19

And from the people, as we have seen, that it is the people who establish these rabbis as their authority, not out of ignorance or apathy or blind faith, but within the context of a literate and educated society.

Finding G‑d in the Details

And here is my vital point: Torah, you see, is not a staid book, nor is it a malleable plastic, but a living organism. An organism adapts, but doesn’t change. As the weather changes and so, too, its environment, the polar bear, the dolphin and the bacterial cell find the keys within their own DNA to cope with the new and survive. Similarly, as the Jewish People travel through the vicissitudes of history, storming every form of culture and society ever known to humankind, they look in the Torah and find, “Yes! Here is the solution for this particular situation. All was foreseen, everything was provided for us, by He by whose word all things come to be.”

For this, the Maharal of Prague provided another parable. He likens our situation to a man who moves into a home built by a master architect. The man finds all in place, in exquisite design and order. Yet, in one place, it seems a door is missing. There is a lintel, there are doorposts, even hinges in place. Within is a room that needs to be shut off from the rest of the house. So the man fashions a door, in accordance with every other door in the house, to match the fittings of the open doorway.

So, too, says the Maharal, when the story of Esther occurred and the rabbis established the festival of Purim; when merchants began to trade on the Shabbat and the rabbis established the laws of muktzah; when Jewish society became primarily mercantile and the rabbis established the pruzbul. And in our day, as we deal in medical halachah and supervision of the food industry—at each step along the way, we find the lintel, the doorposts and the hinges awaiting our finishing touches.

And whose door are we placing? Not our own, says the Maharal, but that of the Master Architect. For all is His design, only that He has provided us the privilege of being His partner in completing His world.

This was precisely Moses’ intent: That Torah should come from within, not from without, from below, not from above. He recognized that, even though he had not been Divinely instructed so, this was the true intent. It’s just that you can’t direct a populist revolution from above, so it had to come from Moses himself.

That is why what we do is called Judaism—and not “Scripturalism” or “Torahism” (there was such a movement, called Karaism). Judaism believes in the Jews, meaning, in the Torah that is revealed through the Jewish People. Because G‑d relies upon our communal understanding through history to unfold His wisdom in the world. He knows that if He tells us, “an eye for an eye,” we will understand from the context that He really meant monetary compensation. He knows that if He tells us to study Torah, we will read it in public three times a week and dance with it at the end of the cycle. He looks at those stringencies and customs of ours and says, “Yes! They got the idea!” He sees our collective consciousness not as an obstacle to His wisdom, but rather as its conduit, since, as the Zohar teaches, “no place is void of him”—not even the human mind.

Further reading: See Likutei Sichot vol. 19, pp.252–255; Sefer Hasichot, 5752 vol. 2, pp. 504–510.