Wednesday, May 06, 2009

the issur of writing torah sheba'al peh

Returning to the Netzi'v's distinction between limud=accumulation of knowlege vs. asiya/la'asos=innovation, chiddush, and his suggestion that chiddush, asiya, is acceptable only when done lishma, Anonymous suggested in a comment that this fits nicely with the Chasam Sofer's tshuvah (Shu"T O.C. 208) that the heter to write Torah sheba'al peh, based on "eis la'asos laHashem", applies only when chiddushim are written lishma -- once again, the term "asiya" demands purety of motive. The C.S.'s assumes that the issur of writing Torah sheba'al peh remains in effect even to this very day and is suspended only on an as needed case by case basis provided the intent is l'shem Shamayim. (In addition to Anonymous' other comments to that post see R' Shternbruch's intro. to Moadim u'Zmanin where he grapples with this C.S. and the challenge it poses to anyone who dares to publish; see also Yechaveh Da'as III:74).

In light of the Chasam Sofer's claim that writing torah sheba'al peh constitutes an issur d'oraysa (see Tos. Yeshanim, Yoma 70) it is striking that the Rambam does not once even mention this halacha. Rav Solovetichik explained (Perach Mateh Aharon p. 48-49) that the Rambam did not in fact leave this halacha out. The Rambam understood the prohibition of writing torah sheba'al peh is not an independent issur, but is a function of the fact that certain elements of Torah are categorically designed to be transmitted by mesorah from teacher to student just as other elements of Torah are categorically designed to be conveyed as text. When the Rambam in his introduction to the Yad records the passing of tradition from generation to generation from Moshe Rabeinu to the days of Rav Ashi, that chain of mesorah represents the fulfillment of this halacha which prohibited writing torah sheba'al peh. However, once that chain was broken, once the transmission of mesorah from teacher to student was lost and replacedby written text, this halacha ceases to have any practical bearing. We no longer have an oral mesorah.

Based on this approach, there is no basis for the Chasam Sofer's claim. The reason we are permitted to write divrei Torah is not based on eis la'asos, but is based on the fact that our methodology of transmitting the mesorah has changed from the person to person link that was operative until the completion of the Talmud. This approach also resolves the question raised by R' Shternbruch (and quoted by R' Ahron Soloveitchik in the name of R' Elchanan Wasserman) whether once Mashiach arrives we will still be permitted to use text to study Torah sheba'al peh -- since mala'ah ha'aretz de'ah and there is no chance for forgetfullness, what might be the eis la'asos permissability of using a text? The answer is that it is not the necessity of avoiding forgetfullness which is the basis of our heter to write torah, but rather it is the fact that the knowledge we record was never part of a chain of mesorah that was exclusively orally transmitted person to person. That fact will not change even with the coming of Moshiach.


  1. Anonymous5:15 AM

    the way you bring r sternbuch and r wassermans question i dont understand it-the issur isnt to learn from it rather the writing

  2. R' Shternbruch asks exactly the opposite -- he writes that he does not understand why the C.S. criticized only the authors of seforim when, if the process of learning torah sheba'al peh must be through oral transmission, the reader (from text) is as culpable as the writer.
    (Sounds like his approach fits RYBS's mehaleich that the issur of writing tshba"p is not an independent din but is a function of derech halimud.)

  3. Back a step. How assur is it? The lashon is "i ata reshai", which is not any of the usual idioms for issur. WRT the other half of the quote, no one claims it's actually assur to say a pasuq by heart. Think of how often Tehillim are said without a siddur in front of you! (Not to mention Tanakh quotes during divrei Torah, etc...) Perhaps the whole thing is an "ought not" rather than the "may not" of an actual issur.

    And if it were an issur, is it derabbanan or does it fit in one of the 613?

    Last, we definitely have some remnant of an Oral mesorah. Since Dr Haym Soloveitchik's article, MO Jews call it "mimeticism". Perhaps more traditionally we would call it "Toras imekha".

    Given that this is the only case of "eis laasos" I can think of that wasn't by a navi, perhaps it's only possible to overturn because it's more about doing something that's a bad idea rather than something that's assur.

  4. >>>Think of how often Tehillim are said without a siddur in front of you!

    Tosfos (Temurah 14) asks how this is possible when it contradicts our din, see also Tosfos Yeshanim Yoma 70a. They take the issur at face value and answer up the question.

    The C.S. held this is is an issur d'oraysa; that Tos. Yeshanim in Yoma disagrees and holds it is an issur derabbanan.

    If it is not an issur of some sort, what is it? A midas chassidus? -- what is the midas chassidus of using a sidur or chumash instead of reciting things by heart?

    >>>WRT the other half of the quote, no one claims it's actually assur to say a pasuq by heart.

    Rambam does -- hil tefilah 12:5.

    R' Dr. Haym Soloveitchik's idea of mimetic tradition has nothing to do with his father's use of mesorah as a technical category of torah sheba'al peh -- -- see Shiurim l'Zecher Aba Mori vol 1, "Shnei Sugei Mesorah".

  5. Anonymous7:03 PM

    in regards to r sternbuch asking acc to the c.s how one can READ seforim, even if he himself learns like the rybs approach (which i dont believe he does from what he says in the haaroah it seems like he has a different approach for the reason of the issur) theres still no place to ask on the c.s from the gemara itself which only mentions the issur to write.
    also, i would say theres a problem beetzem with r sternbuch learning theres an issur to read b/c look at gemara temurah 14b kosvei halachot kesoref torah vehalmed mehen aino notel schar. which is mashma that halomed mehen is just not mekabel schar but is ok to do. so tzarich iyun on r sternbuch lechora.

    now, in regards to the main chidush of the issur being based on mesorah... 3 kashas 1 raya

    i once heard a beautiful raya for this b/c see kiddushin 29 b tanu rabanan hu lilmod ubeno lilmod hu kodem rav yehuda omer im bno zariz umemolach vtalmudo miskayem beyado bno kodmo. now when the rambam bring this in hil tal torah perek 1 hal 4 he says if his son is "navon umaskil" he's first. so the question is why he didnt quote the gemara more precisly. but the answer is simple- in the time of the breysaa when there was a chiyuv to uphold the mesorah then since the son was quick and doesnt forget his learning so he's first to the father, but bezman hazeh theres no maaleh in that since the mesorah is batel so t/f rambam only mentioned about being smarter.

    3 kashas- 1 rambam paskens chiyuv milchemes 7 ammimim even though its no longer relevant as the rambam says theyre all gone. so too here even though mesorah is done he still shouldve brought the din
    2 as brought in r sternbuch, rambam in hakdama to yad says now we can write b/c "nismatttu hatalmidim etc." but acc. to the yesod theres no need for explaining the heter this way
    3 also as brought in r sternbuch rambam in moreh nevuchim 1 71 says the reason for the issur of writing is b.c its not barur (also ritva and ramah in gittin say s/t similar) as if one goes to sanhedrin to ask the halacha. acc to this also its not an issur in regards to maintaining mesorah. i'm aware that on the last 2 kashas it might not be that bad b/c its not in mishneh torah itself, but the first kasha is lechora a problem

  6. Nu, so I looked at the sources. The Ritva in Yuma (sham) says that "i ata reshai leomram baal peh" is only when one is speaking of a chiyuv of public leining. The Tosafos Yesheinim ad loc continues this theme and seems to actually make my point -- that this is a mitzvah min hamuvchar, not the chiyuv.

    It really sounds like leshitaso, even WRT leining for the minyan, "i ata reshai" means "it's better not" rather than one isn't permitted.