The Oral Torah is taught to us when we are grade school children as a fact and feature of Torah, with little explanation as to its function and significance. I venture to say that many people just think of it as two parallel Torahs; one was originally written while the other was not. This does not make much sense as there should logically be a reason why certain aspects of the Torah were originally designated as oral and other parts not. From a simple common sense perspective, we might assume that certain parts needed to be oral because they contained too many details or nuances to capture easily in the written word. For example, see how many pages of English words it takes to translate a five-line, extremely short Tosafos. In Today’s daf, we will look at the role of the Oral Torah and Written Torah from a number of sources.
Our Gemara on Amud Beis cites the famous verse, “An eye for an eye”. Remarkably, despite the repetition of this verse and sentiment several times in the Torah (Shemos 21:24, Vayikra 24:20 and similarly Devarim 25:12), our sages were resolute in their tradition that the exact opposite of this severe sounding response is required. Instead as the Gemara (Bava Kamma 83b-84) states, all of this is about financial restitution. It’s all fine and good to have a tradition that explains the verse differently than it seems to mean. Our Orthodox Judaism depends on faith and respect for the chain of oral tradition and law. But it also should make some sense. Why would the simple reading of the verse imply something so opposite of the Masorah?
Yismach Moshe (Devarim 15) explains that the literal punishment is actually “true” in a way. The Torah wants to impress the severity of the issue and that strictly speaking, Middas Hadin, one must suffer the full measure of what was inflicted. It is only due to the principle of Divine Mercy, that financial payment is substituted.
The Torah is literally making a rhetorical point, or should I say, rhetorically making a literal point! The person who committed such a hurtful act must realize, at least in some sense, he is liable to suffer the same. In the end, the Oral Torah, representing the overall need for a compassionate society, reduces the penalty to a financial one.
There is a cryptic statement in the Guide for the Perplexed (III:41) that might also be making the same point. In this section of the Guide, the Rambam’s aim is to show how the Torah is a vehicle of justice and preservation of society. He notes that the punishments in the Torah are fair and just, and involve appropriate repair and restitution:
The punishment of him who sins against his neighbor consists in the general rule that there shall be done unto him exactly as he has done: if he injured anyone personally, he must suffer personally; if he damaged the property of his neighbour, he shall be punished by loss of property. But the person whose property has been damaged should be ready to resign his claim totally or partly. Only to the murderer we must not be lenient because of the greatness of his crime; and no ransom must be accepted of him. "And the land cannot be cleansed of the blood that is shed therein but by the blood of him that shed it" (Num. 31:33). Hence even if the murdered person continued to live after the attack for an hour or for days, was able to speak and possessed complete consciousness, and if he himself said, "Pardon my murderer, I have pardoned and forgiven him," he must not be obeyed. We must take life for life, and estimate equally the life of a child and that of a grown-up person, of a slave and of a freeman, of a wise man and of a fool. For there is no greater sin than this. And he who mutilated a limb of his neighbour, must himself lose a limb. "As he hath caused a blemish in a man, so shall it be done to him again" (Lev. 24:20). You must not raise an objection from our practice of imposing a fine in such cases. For we have proposed to ourselves to give here the reason for the precepts mentioned in the Law, and not for that which is stated in the Talmud. I have, however, an explanation for the interpretation given in the Talmud, but it will be communicated orally, face to face.
What did the Rambam feel was too sensitive to relay in writing about this matter? I will tell you some of my thoughts but not all. After all, if the Rambam thought it better to use discretion in what to write explicitly, why should I attempt to reveal it? However, there also is a long-standing tradition from the Guide’s commentaries to push the envelope and attempt to reveal more than the Rambam wanted to, despite his warning in the introduction to not do so. So I’ll say a bit, but not all of it.
There is a strong trend within the Oral Torah to be more lenient than the written Torah. The Yismach Moshe (Emor 21) quotes the Arizal as stating that the Written Torah represents Middas Hadin (Divine exacting justice), and the Oral Torah represents Middas HaRachmanus (Divine mercy). My good friend and scholar Vukan Marinkovic has pointed out to me that it is in fact a universal feature of all law to be more lenient in practice than in the mandates and legislation. For instance, the speed limit is 50 miles per hour, but you can probably go up to 64. Even the odious and oppressive tools of the police state, otherwise known as the speeding cameras, do not give you a ticket for a mere few miles above the speed limit. A store might have a sign, “ABSOLUTELY no checks accepted. NO EXCEPTIONS.” As proven by life experience, this sign merely tells you that they would prefer not to have the hassle of taking checks, but for money, anything is negotiable.
To prove this point, I have compiled an extensive list of examples showing how the oral tradition acts as a softening and mitigating factor to the written Torah:
- The literal verses in the Torah famously demand punishment of an Eye for an eye, but the halakha only allows monetary compensation (Bava Kama 83b).
- The scripture mandates 40 lashes for certain violations but actually a maximum of 39 is allowed according to the halakha (Makkos 22).
- The Prohibition of Piggul. A literal reading of the verse invalidates a sacrifice and makes the owner RETROACTIVELY liable for punishment based on the action of someone eating from the sacrifice beyond its correct time (Vayikra 7:18), but the oral law only creates future liability based on past actions (see Rashi Op. Cit).
- Do not burn a fire in your dwelling on the sabbath (Vayikra 35:3) which implies a prohibition to merely having a fire burning on Shabbos, though the halakha allows a fire to be left on before shabbos to kindle during shabbos. In fact, there is a rabbinic mitzvah to light shabbos candles, which has been a custom of Jewish women for millennia.
- The literal verse states, “You shall cut her hand off” (Devarim 25:12), which is understood as monetary compensation instead of actual corporal retribution (Bava Kamma 28).
- The verse by impurity states, “Or when a person touches any unclean thing—be it the carcass of an unclean beast or the carcass of unclean cattle or the carcass of an unclean creeping thing—and the fact has escaped him, and then, being unclean, he realizes his guilt” (Vayikra 5:2). The actual prohibition is not on passively remaining impure but rather upon entering the Temple or Courtyard while impure (Shavous 16b, and Rashi Vayikra ibid)
- The simple reading of the text in the verse prohibiting carrying sounds as if it prohibits leaving one’s home on Shabbos (Shemos 16:29): “Mark that the LORD has given you the sabbath; therefore He gives you two days’ food on the sixth day. Let everyone remain where he is: let no one leave his place on the seventh day.” The tradition is that this verse is referring to Techum and carrying, not leaving the house (Eruvin 51a).
- The verse in VaYikra (15:33) has a literal connotation that a menstruating woman should be socially distanced. Indeed the Talmud in Shabbos (64b) records an opinion of the “Elders of the earlier generations” who deduced from this verse that a Niddah should not adorn herself or use cosmetics and remain low key. Yet, through Rabbi Akiva’s position, the Oral Torah interpreted the verse as commenting on a technical aspect; that even if she is no longer bleeding she remains a Niddah until she immerses in the Mikvah. Rabbi Akiva adds, that the opinion of the Elders would cause her to be unattractive to her husband. The upshot is that Rabbi Akiva’s oral tradition mitigates what he saw as an unreasonably harsh standard in the literal verse. (See Ben Yehoyada for even more surprising ideas about Rabbi Akiva and this verse.)
- The literal verse in VaYikra (21:2) enumerates the list of deceased relatives for whom we permit the cohen to become defiled: “except for the flesh relatives that are closest to him: his mother, his father, his son, his daughter, and his brother.” Notably absent here is his wife. The verse introduces the list with a description, “flesh relatives that are close to him”, which in the simple reading is simply defining and introducing the list. However, the Oral Torah derash understands that the “flesh relative” is actually referring to one’s wife (Yevamos 90b). Presumably one’s wife is of his own flesh, as in the verse (Bereishis 2:24) “Hence a man leaves his father and mother and clings to his wife, so that they become one flesh.” Once again, another example of how the Oral Torah provides more leniency than the written, allowing the cohen to defile himself to tend to his wife’s burial.
Occasionally the oral law adds on restrictions but that’s only when interpreting parameters for the overall rule such as defining what is an esrog, wine for Kiddush, requirements to effect marriage, divorce and the like. However, the overall trend is toward mitigating the strictness of the literal word. Why is all this important? It is because as consumers of Torah thought it behooves us to understand its psychological and philosophical underpinnings.
The duality of the Written and Oral Torah is not a random feature. Rather, it represents two streams of emphasis. The written law is a portrayal of an ideal absolute universal, while the oral law embodies the actual and practical. By way of metaphor, there is an idea called a triangle. A pure triangle, that is one that is mathematically perfect, exists only in concept. As a concept, it is pure truth. However, in reality it cannot exist. The most beautiful and perfect pyramid constructed, while close to mathematically perfect, will never actually be mathematically perfect. The mathematical truth has value in that it is a pure universal. The practical truth has value in that it can actually exist in this world. This is a good way of thinking of the difference between the written Torah and the Oral Torah.
Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation 
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