The Formation of the Oral Torah

How the Talmud came to occupy its place in the canon of authoritative Jewish texts as the "Oral Torah"

By Jacob Neusner

In the following article, Neusner describes his theory concerning the formation of the Mishnah and it attaining authoritative status. However, it should be noted that some scholars disagree with him and present alternative theories. Excerpted from The Talmud: A Close Encounter, with permission of the author.

Problem: How could the Mishnah gain authority?

From the formation of ancient Israelite Scripture, in the aftermath of the return to Zion and the creation of the Torah book in Ezra's time (ca. 450 BCE), coming generations routinely set their ideas into relationship with Scripture. This they did by citing proof texts alongside their own rules.

Otherwise, in the setting of Israelite culture, the new writings could find no ready hearing. Over the six hundred years from the formation of the Torah of "Moses" in the time of Ezra, from ca. 450 BCE to ca. CE 200, four conventional ways of accommodating new writings--new "tradition"--to the established canon of received Scripture had come to the fore.

First and simplest, a writer would sign a famous name to his book, attributing his ideas to Enoch, Adam, Jacob's sons, Jeremiah, Baruch, and any number of others, down to Ezra. But the Mishnah bore no such attribution, for example, to Moses. Implicitly, to be sure, the statement of Mishnah Avot 1: "Moses received Torah from Sinai (and handed it on to Joshua, Joshua to the elders, and the elders to the prophets. And the prophets handed it on to the men of the great assembly…)" carried the further notion that sayings of people on the list of authorities from Moses to nearly their own day derived from God's revelation at Sinai. But no one made that premise explicit before the time of the Talmud of the Land of Israel.

Second, an authorship might also imitate the style of biblical Hebrew and so try to creep into the canon by adopting the cloak of Scripture. But the Mishnah's authorship ignores biblical syntax and style.

Third, an author would surely claim that his work was inspired by God, a new revelation for an open canon. But, as we realize, that claim makes no explicit impact on the Mishnah.

Fourth, at the very least, someone would link his opinions to biblical verses through the exegesis of the latter in line with the former, so Scripture would validate his views. The authorship of the Mishnah did so only occasionally, but far more commonly stated on its own authority whatever rules it proposed to lay down.

The Hebrew of the Mishnah complicated the problem, because it is totally different from the Hebrew of the Hebrew Scriptures. Its verb, for instance, makes provision for more than completed or continuing action, for which the biblical Hebrew verb allows, but also for past and future times, subjunctive and indicative voices, and much else.

The syntax is Indo‑European, in that we can translate the word order of the Mishnah into any Indo‑European language and come up with perfect sense. None of that crabbed imitation of biblical Hebrew, which makes the Dead Sea Scrolls an embarrassment to read, characterizes the Hebrew of the Mishnah. Mishnaic style is elegant, subtle, exquisite in its sensitivity to word order and repetition, balance, pattern.

Rabbinic Solutions: Avot, Tosefta, Talmud, Sifra

The solution to the problem of the authority of the Mishnah, that is to say, its relationship to Scripture, was worked out in the period after the closure of the Mishnah. Since no one now could credibly claim to sign the name of Ezra or Adam to a book of this kind, and since biblical Hebrew had provided no apologetic aesthetics whatever, the only options lay elsewhere. The two [solutions] were, first, to provide a myth of the origin of the contents of the Mishnah and, second, to link each allegation of the Mishnah, through processes of biblical (not Mishnaic) exegesis, to verses of the Scriptures. These two procedures, together, would establish for the Mishnah that standing which the uses to which the document was to be put demanded for it: a place in the canon of Israel, a legitimate relationship to the Torah of Moses.

There were several ways in which the work went forward. These are represented by diverse documents that succeeded and dealt with the Mishnah. Let me now state the three principal possibilities:

(1) The Mishnah required no systematic support through exegesis of Scripture in the light of Mishnaic laws.

(2) The Mishnah by itself provided no reliable information, and all of its propositions demanded linkage to Scripture, to which the Mishnah must be shown to be subordinate and secondary.

(3) The Mishnah is an autonomous document but closely correlated with Scripture.

The first extreme (1) is represented by the (Pirkei) Avot, ca. C.E. 250 (see quotation above--a later addition to the order of Nezikin of the Mishnah), which represents the authority of the sages cited in Avot as autonomous of Scripture. Those authorities in Avot do not cite verses of Scripture, but what they say does constitute a statement of the Torah. There can be no clearer way of saying that what these authorities present in and of itself falls into the classification of the Torah.

The authorship of the Tosefta (a collection of Mishnah-era materials, most of which are not included in the Mishnah itself, but many of which are parallel and include commentaries) ca. C.E. 400, takes the middle position (3, above). It very commonly cites a passage of the Mishnah and then adds to that passage an appropriate proof text. That is a quite common mode of supplementing the Mishnah.

The mediating view is further taken by the [Talmud] Yerushalmi and the Bavli, ca. C.E. 400-600. With the Yerushalmi's authorship, that of the Bavli developed a well‑crafted theory of the Mishnah and its relationship to Scripture. Each rule of the Mishnah is commonly introduced, in the exegesis supplied by the two Talmuds, with the question, "What is the source of this statement?" And the answer invariably is, "As it is said," or ". . . written," with a verse of Scripture, that is, the written Torah, then cited.

The upshot is that the source of the rules of the Mishnah (and other writings) is Scripture, not freestanding logic.

The far extreme (2)--everything in the Mishnah makes sense only as a (re)statement of Scripture or upon Scripture's authority--is taken by the Sifra, a post‑Mishnaic compilation of exegeses on Leviticus, redacted at an indeterminate point, perhaps about C.E. 300. The Sifra systematically challenges reason (= the Mishnah), unaided by revelation (i.e., exegesis of Scripture), to sustain positions taken by the Mishnah, which is cited verbatim, and everywhere proves that it cannot be done.

The Fully-Developed Solution: "Oral Torah"

The final and normative solution to the problem of the authority of the Mishnah worked out in the third and fourth centuries produced the myth of the dual Torah, oral and written, which formed the indicative and definitive trait of the Judaism that emerged from late antiquity. Tracing the unfolding of that myth leads us deep into the processes by which that Judaism took shape. The two Talmuds know the theory that there is a tradition separate from, and in addition to, the written Torah. This tradition it knows as "the teachings of scribes."

There is ample evidence, implicit in what happens to the Mishnah in the Bavli, to allow a reliable description of how the Bavli's founders viewed the Mishnah. That view may be stated very simply. The Mishnah rarely cites verses of Scripture in support of its propositions. The Bavli routinely adduces scriptural bases for the Mishnah's laws. The Mishnah seldom undertakes the exegesis of verses of Scripture for any purpose. The Bavli consistently investigates the meaning of verses of Scripture and does so for a variety of purposes.

Accordingly, the Bavli, subordinate as it is to the Mishnah, regards the Mishnah as subordinate to, and contingent upon, Scripture. That is why, in the Bavli's view, the Mishnah requires the support of proof texts of Scripture. By itself, the Mishnah exercises no autonomous authority and enjoys no independent standing or norm-setting status…

Having represented the Mishnah as it did, the Bavli's authorship quite naturally chose to represent its own system in the same way--that is to say, as a mere elaboration of a received tradition, a stage in the sedimentary and incremental process by which the Torah continued to come down from Sinai. And for that purpose, I hardly need to add, the mixed logics embodied in the joining of philosophical and propositional statements on the principle of fixed association--commentary attached to a prior text--served exceedingly well.

That explains how, in the Bavli, we have, in the (deceptive) form of a tradition, what is in fact an autonomous system, connected with prior systems but not continuous with them. The authorship represented their own statement of an ethos, ethics, and defined social entity, precisely as they did the received ones, the whole forming a single, seamless Torah revealed by God to Moses at Sinai.

Professor Jacob Neusner is the senior fellow of the Institute of Advanced Theology and a full-time professor at Bard College. He has published more than 800 books and innumerable articles. His publications range from the scholarly and academic to the popular and journalistic.