Lo Tosiphu: Does the Oral contradict the Written?

Lo Tosiphu: Does the Oral contradict the Written? [ Disproofs ]

(This article originally appeared on Ami Hertz's website, but I am including it here because it is still relevant.

Any discussion with the orthodox Jew will reveal a fundamental dogma of belief in the Oral Law- Tora She b’Al Peh. This is the beginning of faith, of practice, and of understanding the Written scriptures.

Unfortunately, no coherent proof is available for the claims of the Oral Torah. It is not derived from the text, nor is there any scientific evidence for it. That aspect has been dealt with on amhaaretz. The question I wish to raise is “does the oral Law contradict and conflict with the Torah she Bi’Khtav?”.
However, I will not take the standard blindfolded Orthodox route, which says you can only understand the Written Torah if you assume the oral law is true. Nor will I accept the irrational argument that “great rabbis of the past, such as Maimonides accepted the Oral Law, so who am I to disagree.” These are simple logical fallacies, but are used in the brainwashing process of religion.

The most problematic verse in the Torah for adherents of the oral law must be:
Deuteronomy 4:1-2
“Now, Israel, listen to the rules and laws that I am teaching you to do, so that you will remain alive and come to occupy the land that God, Lord of your fathers, is giving you. Do not add to the word that I am commanding you, and do not subtract from it. You must keep all the commandments of the Lord your God, which I am instructing you. “
Having studied the major Rabbinic commentaries to this Law, one notices that the rabbis are really unable to justify their own additions in the form of rabbinic “fences”, which are part of the Oral law.
The rabbinic responses are also an enlightening study in human psychology, and in particular, Cognitive dissonance.

At one end of the spectrum, there are Rabbis who make the most far fetched claims to justify the legitimacy of rabbinic laws, and on the other end, there are some examples of rabbis who more or less concede that rabbinic law is illegal, but cannot make such a clear statement, since it would mean for them a departure from orthodoxy.

Somewhere in the middle lies the position of Maimonides, the Rambam, who as we know is the strongest formulator of dogma, and supporter of Oral Law.
Rambam brings a position which is quite sophisticated, and is predicated on the knowledge that adding new laws is a transgression of the Torah. He cleverly argues that we can add new laws as long as we don’t call them “D’Oraita” or biblical. As long as we make the distinction between rabbinical and Biblical law, that is fine.

"If," writes Rambam, "one forbids [the consumption of] poultry on the grounds that it similar to the meat of goat and is therefore forbidden by the Torah, he is [guilty of] adding [onto the Torah]. Yet, if one were to say that while poultry is permissible in the eyes of the Torah, we are forbidding it and informing the masses that this [prohibition] is a rabbinical enactment...[he is not guilty of adding]" (Hilchot Mamrim 2:9)

The great Rambam was too wise to deny outright that such a transgression exists (unlike some of his colleagues). So he puts a spin of sophistry on it, to distract the sceptical reader. There are some basic flaws though:

1) There is anyways a belief that these laws are d'Oraita; we even say asher kideshanu b'mitzvatav on rabbinical mitzvot. And it is also claimed that even these laws were given on sinai, so effectively they are also d'oraita.
2) The whole argument is actually quite meaningless philosophically. It falls in the category of nominalism. Eg can somebody say that Chazir is only unkosher if one calls it chazir, but if you call it tofu or fish, then it is permitted? If i sell pork (ie flesh derived from a pig) but label it as Kosher steak, would that have any bearing on its halachic status? Would the dishes used to cook and serve that meat be unaffected since i am labelling it a kosher?

Similarly, if I wanted to kill someone, but was aware that it is forbidden, I could call it something else, other than murder. That doesn’t exonerate me from the crime.

What Rambam is really saying, is that there is a category of people, named Rabbis, who are above the Law, and as long as they maintain that their laws are of rabbinic status, they do not actually transgress anything. In any case, this position has not been adopted by mainstream orthodoxy, who claim that every word and nuance in the rabbinic imagination was all retroactively given at Sinai.
Unfortunately, the problems that Rambam create for himself do not end here. It seems that it is not only the writer of this article who is sceptical of Rambam’s construct, but also Rambam himself is!
In Hilchot Brachot 11:3 Rambam deals with the conundrum posed by the blessings over rabbinical Mitzvot, which have the formula “Asher Kiddushanu b’Mitzvotav, V’Tzivanu ……..” ie [G-d] who has sanctified us with his commandments, and commanded us to….”
He asks where we are commanded to perform rabbinical commandments (eg washing hands, lighting candles etc), and quotes “That they tell you, you shall do..”


For informational purposes, the Mishneh Torah of Maimonides is not a philosophical work in the sense that his Guide was, ie it does not attempt to prove anything philosophically to the skeptic. It is a codification of the 2 talmuds, and a legal text. If a logical problem does arise, therefore, we must understand the context in which it is written, and it is not Rambam’s own creation.
A logical problem with citing the verse above for rabbinical authority, is that anyone can cite it as a text for his authority. Why can’t the Mormons use it as proof of their true leadership, or the Imams, or any other sect or cult? After all, the Talmud see this verse as an absolute authority for those in Power to claim Divine power for whatever they innovate!
But this isn’t the only problem the rambam is faced with. Let us recall what he writes in Hilchot Mamrim: "If," writes Rambam, "one forbids [the consumption of] poultry on the grounds that it similar to the meat of goat and is therefore forbidden by the Torah, he is [guilty of] adding [onto the Torah]”.
So by claiming Torah status for Rabbinical decrees, one is guilty of Adding. By making both of the claims (Brachot and mamrim), he inadvertently betrays the whole rabbinical enterprise as one in transgression of the Torah!
Rambam’s contemporary, and controversialist, Rabbi Avraham ben David, a.k.a. Rabad, takes a more radical position than the Rambam, on the road towards denial of the value of the mitzvah of Lo Tosiphu. In his gloss on the Rambam (Hilchot Mamrim 2:9) , the Rabad writes:
"Any prohibition enacted by the Rabbis in order to safeguard and protect the Torah is not a violation of the commandment 'You shall not add [to it nor diminish from it]' even if it is enacted permanently, made like a Torah law, and based upon a Scriptural passage. Temporary [rabbinical] suspension of any Biblical commandment is also considered Torah for, 'It is time to act on God's behalf, suspend your Torah' (Psalms 119:126); such is not a violation of the commandment, 'You shall not add [to it nor diminish from it].'"
Effectively, then, the commandment of not adding is thrown out of the Torah, and the rabbis can add to their heart’s content. As long as they do not add to the number of parchments in teffillin, or species in arba minim. This is a counter example to the claim that without the Oral Law, the Torah cannot be understood or practised. At least in this case, the Oral Law does the opposite, it renders the Torah meaningless and obsolete.