Who Has the Last Word on God’s Word? “Not in Heaven” and the Oral Law

One of the most fundamental axioms of the rabbinic tradition in Judaism is that of the preeminence of the Oral Law over its Written counterpart. The halakhic system codified in the Talmud often makes little or no effort to reconcile its conclusions with the plain meanings of the Pentateuchal origins of the laws. This phenomenon has been dealt with in a variety of sources and contexts, but, working exclusively under the assumption that the halakhic system is valid and binding, I wish to focus on one specific aspect thereof. The Written Law is the revealed word of God to mankind. How and why, then, were the Sages given the power to alter its instructions into different ones entirely?

An aggadic passage, in the context of the minutiae of the laws of tsara’at, casts this rabbinic tradition and its difficulties into sharp relief. The aggadah begins amidst an involved discussion of the order in which the characteristic white hair and white blotch of tsara’at manifest themselves:

There was a dispute in the Heavenly Academy: [We know that] if the bright spot [of tsara’at] preceded the white hair, [the afflicted person] is impure; if the reverse, he is pure. If [the order is] in doubt — the Holy One, blessed be He, ruled, “He is pure”; while the entire Heavenly Academy maintained, “He is impure.” “Who shall decide it?” they asked. Rabbah b. Nahmani! For he said, “I am pre-eminent in the laws of tsara’at and tents.” A messenger was sent for him…[i]

The first curious aspect of this tale is the fact that a “Heavenly Academy” can exist. Apparently, within these confines, God is merely a player in the ongoing halakhic discussion, parallel to a student in a study hall on Earth. How can this be? Does the final authority to decide matters of God’s word rest with anyone but God? Seemingly more problematic is the next section of the story, in which God assents to allowing a human to arbitrate the final decision of the question at hand. Not only does God deign to engage in the interpretation of His law alongside His creations, He delegates the final responsibility of decision to them as well.

In another well-known aggadah, concerning the purity status of a particular oven, known as the tanur shel Akhnai, this particular problem is dealt with using the text of the Torah itself. In this scenario, while the majority of the Sages rule that the oven could not become impure, R. Eliezer disagrees, and God appears to side with the latter. However, as we shall soon see, the “solution” offered by the aggadah to our question of why the Sages possess the authority they do is highly problematic:

On that day R. Eliezer brought forward every imaginable argument, but [the rabbis] did not accept them. He said to them: “If the halakhah agrees with me, let this carob tree prove it!’ “Thereupon the carob tree was torn a hundred cubits out of its place… “No proof can be brought from a carob-tree,” [the rabbis] retorted. Again [R. Eliezer] said to them: “If the halakhah agrees with me, let the stream of water prove it!’” The stream of water flowed backwards. “No proof can be brought from a stream of water,” they rejoined. Again [R. Eliezer] urged: “If the halakhah agrees with me, let the walls of the beit midrash prove it,” whereupon the walls inclined to fall. But R. Yehoshua rebuked [the walls], saying: “When scholars are engaged in a halakhic dispute, why do you interfere?” Hence they did not fall in honor of R. Yehoshua, nor did they right themselves in honor of R. Eliezer, and they are still standing thus inclined. Again [R. Eliezer] said to them: “If the halakhah agrees with me, let Heaven prove it!” Whereupon a Heavenly Voice cried out: “Why do you dispute with R. Eliezer, seeing that in all matters the halakhah agrees with him!” But R. Yehoshua arose and exclaimed: “It is not in Heaven.”[ii] What did he mean by this? R. Yirmiyah explained: “The Torah has already been given at Mount Sinai, so we pay no attention to a Heavenly Voice, because [God has] long since written in the Torah at Mount Sinai, “After the majority must one decide.”[iii]

R. Natan met Eliyahu [the prophet] and asked him: “What did the Holy One, Blessed be He, do [while this dispute was occurring]?” “He laughed [with joy],” [Eliyahu] replied, “saying, ‘My sons have defeated Me, My sons have defeated Me.’”[iv]

This story paints a different picture than does the aggadah we previously saw about tsara’at. The debate here is initiated by men and completed by men, whereas the discussion of tsara’at begins in Heaven. And while, in the tsara’at story, God does not interfere with man’s decision, in the tanur shel Akhnai story, although He appears to reverse course later in the tale, God miraculously intervenes. The Sages, led by R. Yehoshua, successfully resist the Divine influence and resolve the question at hand on the ground. No credence is given to God’s opinion in the discussion; matters of halakhah, we are told, are left to man and man alone. This second aggadah, though, offers two verses from the original revealed text that attempt to provide a basis for the phenomenon of the primacy of man over God in matters of applications of the Law. Upon further inspection, however, the proof-texts are somewhat wanting.

First, we shall examine the context of R. Yehoshua’s evidence, emphasized within its surroundings. Moshe, soon before his impending death, is in the midst of one of his final speeches to the Israelites, exhorting them to action:

For this commandment (mitsvah) which I command you this day, it is not too hard for you, nor is it far off. It is not in Heaven that you should say: “Who shall go up for us to heaven, and bring it to us, and let us hear it, so that we may perform it?” Nor is it beyond the sea that you should say: “Who shall go over the sea for us, and bring it to us, and let us hear it, so that we may perform it?” For the matter is very close to you, in your mouth, and in your heart, to perform it.[v] [vi]

The phrase R. Yehoshua cites to demonstrate the independence of the Sages from God, or at least God’s expressed statements, in arbitrating matters of Halakhah refers to a “mitsvah,” or “commandment,” referenced in the preceding verse. But what is this mitsvah? Virtually no straightforward reading of the text[vii] yields the interpretation that it refers to the Torah as a whole. Ramban[viii] explains, based on the surrounding paragraphs, that the mitsvah is that of teshuvah, repentance. Another reading might hearken back to the mitsvah referenced earlier in the book of Devarim, which most likely refers to love and fear of God. Regardless, it appears that R. Yehoshua, a mortal man, is utilizing a verse in a context totally removed from its original revealed intention, to teach that mortal man, not God, has the final authority over the Law after revelation. Furthermore, R. Yehoshua uses this verse to make a legislative point, discussing the process of creating laws, while in context, the verse describes how the laws should be fulfilled. Especially for the goal he seeks to accomplish, R. Yehoshua’s proof-text seems curiously lacking. R. Yirmiyah’s text, offered as an “explanation” of R. Yehoshua’s, encounters a similar problem, but to an even greater extent. This selection is taken from a description of the process of court systems:

You shall not follow a multitude to do evil; nor shall you bear witness in a dispute to turn aside after a multitude to pervert justice; nor shall you favor a poor man in his cause.[ix]

R. Yirmiyah uses a section of a verse from the context of adjudication of civil law, not legislation of halakhah, as his proof. More difficult, though, is the fact that the portion he cites runs completely contrary to the actual meaning of the sentence. Of the instruction, “Do not follow the majority,” R. Yirmiyah entirely omits the words “do not.” Regardless of R. Yirmiyah’s understanding of the nature of peshat and derash,[x] he utilizes the principle of rabbinic independence from the literal meaning of the text to demonstrate the validity of this selfsame principle. From a textual point of view, this is deeply problematic.

This problem is an important theological one, one whose solution lies outside the scope of this essay. Instead, we shall examine the section of the Torah surrounding R. Yehoshua’s statement, and understand that while the question of man’s final authority over the Torah remains puzzling from a philosophical perspective, on a scriptural level it is rooted deep in the text of Sefer Devarim.

Before embarking on an analysis of Chapters 29-32, the relevant portion of the Torah for this phenomenon, it is critical that we understand the structure of the preceding sections of Sefer Devarim. Chapters 1-4:40 and Chapters 5-26 comprise two long, uninterrupted speeches by Moshe to the Jews in Arvot Moav, across the Jordan River from the Land of Israel, in the Israelites’ fortieth and final year of sojourns in the desert. The first of these speeches is a summary of the Jews’ travels from Egypt to that point. The second, longer one is a set of commandments, ranging from the broad principles of love and fear of God to the specifics enumerated particularly in Chapters 12-26. Chapters 27 and 28 may be viewed as the beginning of the end of the book: the former sees Moshe instructing the Jews to perform covenant-affirming ceremonies once they enter the Land, while the latter contains Moshe’s blessings and curses to the people, to be administered in the events of their upholding commandments and their failure to do so, respectively.

It is with this background that Moshe begins what appears to be his final substantive speech to the Jews. In Chapters 29 and 30, the leader gathers his people and warns them again about the dire consequences that await them if they fail to observe God’s commandments. Yet he includes the possibility of repentance, of the exiled nation returning to God, and, in return, God returning them to their Land. Blessings await the people upon their return. However, Moshe continues to stress one central message to the Israelites. Beginning with the above-cited verses in Chapter 30, which contain the key phrase of “not in Heaven,” he informs Bnei Yisrael that they have the option of fulfilling God’s commandments. Again and again in verses 15-20, Moshe impresses upon the people that they have a choice: the commandments and life on the one hand, transgression and death on the other. “Therefore choose life,” he exhorts, “that you may live, you and your offspring.”[xi]  Moshe, who will soon pass away, begs his flock to follow the path God has laid out for them, and promises them that they will be richly rewarded for doing so.

By this point, Moshe believes he has concluded his task of imparting the commandments to the Jews. In his next speech, in Chapter 31, he intends to bid the people farewell before they resume their journey without him: “I am a hundred and twenty years old this day; I can no more go out and come in; and the Lord hath said unto me: ‘Thou shalt not go over this Jordan.’”[xii] He tells the people to be strong, and then begins the final, formal investiture of leadership in Yehoshua, his disciple. Among his final acts is this:

And Moshe wrote this law (torah), and delivered it to the priests the sons of Levi, who bore the Ark of the Covenant of God, and to all the elders of Israel.[xiii]

Moshe writes the torah, a term which is subject to enormous debate amongst the classical commentators and will be critical for our analysis of this section, and safeguards it. Meanwhile, God has other plans for Moshe’s final message to the people. He intends for it to solve theological questions that may arise later. When the Israelites wonder why evil befalls them, God preemptively responds that when the Jews transgress His commandments, He will “hide His face” and not grant them special favor. God instructs Moshe:

Now therefore write this song (shirah) for you, and teach it to the children of Israel; put it in their mouths, so that this song may be a witness (ed) for Me against the children of Israel.[xiv]

This message is transmitted in Devarim 32:1-43, in the format commonly referred to as “Shirat Ha’azinu.” Note, however, that God’s instruction on how to transmit the song is tripartite: Moshe is to write it, teach it to the Israelites, and “put it in their mouths.” Also significantly, God here refers to the song as an “ed,” a “witness.” The placement, immediately after Moshe delivers what could have well served as his last speech, indicates that God intends this to be essentially the final message the Jews hear from their leader.

Moshe does indeed teach the Israelites Shirat Ha’azinu. However, critically, he takes a number of steps which imply a subtle disagreement with God over the form his final message to the people should take. While God, of course, could have chosen to dictate this final speech, He apparently chooses to leave the decision in Moshe’s hands, and Moshe does not seem to fully follow suit with God’s instructions for how Shirat Ha’azinu should be rendered.

First, we shall examine Moshe’s immediate response to God’s command: “So Moshe wrote this song (shirah) the same day, and taught it to the children of Israel.”[xv] While God’s instruction contained three steps, Moshe’s action only has two. Notably, he neglects to fulfill the third stage, to “put [the song] in their mouths.” Evidently, Moshe is reluctant to follow the command exactly as ordered. The next few verses are also striking:

And it came to pass, when Moshe had completed writing the words of this law in a book, until they were finished, that Moshe commanded the Levites, who bore the Ark of the Covenant of God, saying: “Take this book of the law (torah), and put it by the side of the ark of the covenant of God, so it may be there for a witness (ed) against you.” For I know your rebellion, and your stiff neck; behold, while I am yet alive with you this day, you have been rebellious against God; and how much more after my death? Assemble unto me all the elders of your tribes, and your officers, so I may speak these words in their ears, and call Heaven and Earth to witness against them. For I know that after my death you will deal corruptly, and turn aside from the way which I have commanded you; and evil will befall you in the end of days; because you will do that which is evil in the sight of God, to provoke Him through the work of your hands.” And Moshe spoke in the ears of all the assembly of Israel the words of this song, until they were finished.[xvi]

Moshe, in rather harsh tones, conveys God’s message to the people: When they sin, they will be duly punished. Yet it is notable that the torah Moshe had written down earlier becomes the ed, the witness, instead of the shirah. Moshe, apparently, would rather have the torah be the final testimony. When discussing the shirah itself, Moshe transforms God’s directive of “putting it in their mouths” into “speaking it in their ears,” which implies a far less intense transmission. Instead of the Jews repeating it constantly, they merely are called upon to listen to the song. Additionally, while Heaven and Earth are called to witness—“ve-a’idah bam”—the song itself still is not, and the sole item identified with the title of “ed” is the torah. The torah, we may suggest, refers to Moshe’s selected messages to the Jews, either from the beginning of the book of Devarim or the concluding section beginning with Chapter 29. Moshe is uncomfortable leaving God’s harsh message of hester panim, hiding of His face, as the final message the Jews hear from their leader, so he takes steps to ensure a less-than-complete delivery of the song.

After he concludes Shirat Ha’azinu, though, Moshe—with God’s tacit approval—makes one last subtle alteration to the final speech.

And Moshe came and spoke all the words of this song in the ears of the people, he, and Hoshea the son of Nun. And when Moshe had finished speaking all these words to all Israel, he said to them, “Set your heart to all the words which I testify against you this day; that you may charge your children to observe to do all the words of this law (torah). For it is no vain thing for you; because it is your life, and through this matter you shall prolong your days upon the land which you go over the Jordan to possess.”[xvii]

Again, Moshe chooses to speak the song into “the ears of the people,” not their mouths. At his conclusion, though, he insists that the people observe the words of the torah—not the shirah. A new term is used for this transmission: no mention of mouths or ears is made, but Moshe instructs the people to “set your heart.” The torah of choosing life, not the shirah of punishment for evil, is Moshe’s preferred final speech to the people, and the most internal and fundamental one of all.

God, it appears, acquiesces to Moshe’s insistence on ending the Torah on human terms. At this point, Moshe is told to ascend to Mount Nevo, where he will die. After following in his forefather Yaakov’s footsteps and blessing the tribes, Moshe indeed passes away. But it is he, not God, who has dictated what the final, revealed word of the Five Books will be. The Pentateuch does not end on a note of hester panim, but of u-vaharta ba-hayyim, the exhortation to choose life. One can almost hear the echoes of “My sons have defeated Me” from the conclusion of the above aggadah as Moshe, similar to the Sages, triumphs in the decision to select the conclusion of the Torah. As in the tanur shel Akhnai story, although God explicitly expresses his desire to have His word interpreted in a different way, He defers to mankind in the final expression of His Law, and is evidently pleased with the result.

R. Yehoshua’s selection of the verse “not in Heaven” as the source for man having the final word on God’s word is hardly an accident. It is taken from the section of the Torah that is subject to a subtle struggle between man and God about who will complete God’s revealed word. R. Yirmiyah’s proof-text of “follow the majority” is then a concretization of R. Yehoshua’s principle—now that R. Yehoshua has established that the Torah itself is subject to human interpretation and teaching, R. Yirmiyah explains that Halakhah follows the same modus operandi. He does so in the most emphatic fashion possible: by selecting a derashah that completely opposes the literal meaning of the original text, he demonstrates not an indifference to the straightforward reading, but the total authority of the Sages to determine interpretation of Scripture.

I do not, of course, intend to suggest that the current form of the Written Law is subject to drastic alterations. Nor do I claim that the power to decide halakhic matters rests in the common man. On the contrary: only those who have learned and firmly understand the rabbinic precedent are qualified in that regard. The interpretation of halakhah is certainly not a free-for-all. Nonetheless, part of the uniqueness of Torah is that it is an eternal book. The Oral Law is not static, but open to debate and discussion. Twice a day, in the second paragraph of keri’at Shema, we recall God’s promises to reward us if we observe his precepts, which the verses describe as “My commandments which I command you this day.”[xviii] Rashi, citing the Sifre, famously explains that the term “this day” means that the Jews should strive to perceive the Torah as though it were given on that day, every single day.[xix] When we view the Torah as the “ḥayyei olam,” “eternal life,” that our tradition insists it is, we understand how the revelatory experience, through the medium of the Oral Law, continues its timeless progression through the generations, as reflected by the end of Sefer Devarim.

Daniel Shlian is a first year student at Yeshiva College, majoring in Chemistry and Judaic Studies.

[i] Bava Metsia 86a. This and subsequent translations of Gemarot are those of Soncino Press, with some slight technical modifications.

[ii] Devarim 30, 12

[iii] Shemot 23, 2

[iv], Bava Metsia 59b

[v] Devarim 30, 11-14

[vi] Translations of Biblical verses are those of JPS 1917.

[vii] Many commentators (such as Rashi and R. Baḥya) do indeed assume that the phrase   “lo ba-shamayim hi refers to the entire set of the Torah’s commandments. However, it appears likely that this is primarily motivated by this aggadah, as well as a related derashah in Eruvin 55a.

[viii]Devarim 30, 11

[ix] Shemot 23, 2-3

[x] Stephen Garfinkel (in “Clearing Peshat and Derash,” in Hebrew Bible/Old Testament: The History of Its Interpretation, I/2, ed. by Magne Sæbø [Göttingen: Vandenhoeck und Ruprecht, 2000], 132) writes that while the Gemara on several occasions notes “ein mikra yotsei mi-yedei peshuto,” “the verse does not leave the hands of its peshat,” it is unclear how much Hazal utilized peshat exegetically. However, he also cites Menahem Haran, who claims that Hazal did not employ contextual analysis at all.

[xi] Devarim 30, 19

[xii] Ibid, 31, 2

[xiii] Ibid, v. 9

[xiv] Ibid, v. 19. In our analysis, I have omitted certain verses in the relevant sections. These primarily deal with Moshe’s appointment of Yehoshua, which unfortunately lies outside the scope of this essay.

[xv] Ibid, v. 22

[xvi] Ibid, v. 24-30

[xvii] Ibid, 32, 44-47

[xviii] Ibid, 11, 13

[xix]  Rashi, ad loc.