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My question can apply to virtually all mitzvos where there is a disagreement in the standard way to fulfill them.

If one reads the hakdama (introduction) to the Rambam's peirush mishnayos (commentary on the mishna) he explains the origin of machlokes (disagreement in halacha).

But if Moshe was the main Rebbe, why didn't everyone just follow Moshe?

For example, knowing what Teffilin Moshe wore should resolve the disagreement over what our Teffilin should be like. Why didn't everyone just follow his shittah and pass that tradition down to us?

Edit:I found in the Ben Ish Chai Shana Alef parshas vayeira 21 that from Moshe Rabbeinu until the Geonim people wore two pairs(Rashi and Rabbeinu Tam)

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Talk about authentic mesora! – Qoheleth Aug 24 '12 at 17:06
Can you include a summary of the Rambam's 'origin of machloket'? – Double AA Aug 24 '12 at 17:07
Just to point out there are many many mitzvot which Moshe never performed. – Double AA Aug 24 '12 at 17:12
Perhaps Moshe himself wore 4 pairs of tefillin? Remember when they thought they could figure out which kind was used historically, through archaeology? Only to find pairs following both Rashi and Rabbeinu Tam? – HodofHod Aug 24 '12 at 18:29
@DoubleAA Because I like 4. It's a nice number. – HodofHod Dec 6 '13 at 19:46

This question is dealt with at great length in the Sefer "The 13 Principles of Faith" (Gutnick edition) by Rabbi Chaim Miller in the Eighth Principle, Lesson Seven, based on the teaching of the Lubavitcher Rebbe.

He summarizes the chapter as follows:

  • The Sanhedrin of each generation was authorized to overrule any of the derived laws of the previous generation.
  • Therefore, when derived laws were lost, it did not represent a crisis because the current Sanhedrin was not bound to those laws in any case.
  • Furthermore, when laws were forgotten it was often the case, not that a single legal opinion was lost leaving us with no data, but merely that the consensus of opinion was forgotten.
  • While the Sages of each generation had the right to disagree with their predecessors about derived laws, it was nevertheless preferable for them to agree.
  • Nowadays, Rabbis do not have the right to disagree with the ruling of the Mishna, Talmud and Shulchan Aruch since they have been universally accepted by the Jewish people as binding.

The sources he bases himself on in the Rebbe's teachings are: Sichas Yud Aleph Nissan 5737, par 19-22; Sichas Acharon Shel Pesach 5737, par. 43-50; Sichas Shabbos Parshas Matos 5742, par. 25; ibid 42-46; Sicha of 15th of Tammuz 5746-Al Davar ha-Mahaduros de-Sefer ha-Yad le-ha-Rambam

To specifically answer your questions regarding which Tefillin Moshe Rabeynu wore (the Rebbe asks this question in the first Sicha above): even if Moshe wore Tefillin of Rashi, Rabeynu Tam would still be allowed to argue.

Two stories to illustrate this point:

1) Seder Hadoros (year 4930) brings the story of an argument between Rabeynu Tam and other Rishonim regarding how one should tie the knot of the Tefillin. Eventually, Moshe Rabeynu himself is called down from heaven and asked his opinion. He testifies that he personally saw the back of Hashem's Tefillin shel Rosh, but Rabeynu Tam is not persuaded. In the words of the Seder Hadoros: "Rabeynu Tam got up like a lion and said Moshe Rabeynu you are mistaken!".

2) The Chossid R' Hillel of Paritch was a devoted follower of the Tzemach Tzedek. There was once a dispute amongst the Chassidim on how to interpret a certain point of one of the Rebbe's discourses. When they asked the Rebbe himself what he meant, his response favoured the other Chassidim's approach and not R' Hillel's. However R' Hillel refused to retract from his position, explaining: "When the Rebbe says a Chassidic discourse, the Torah is being given from Sinai. But like all words of Torah, it is crucial that we understand them, and that means using our own brains. So the Rebbe has his understanding of the discourse - said this morning at Sinai - and I have mine."

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how was r"t talking with moshe? – Dude Jun 17 '14 at 15:23
Your point about not being able to disagree with earlier rulings isn't correct, either theoretically or in practice. – Robert S. Barnes Jun 23 '14 at 9:24
In Nefesh Harav pg 45-46, R. Hershel Schachter writes that he heard from R. Soloveitchik in the name of R. Chaim that the first story that you bring from the Seder Hadoros is apikorsus. Your summary of R. Miller doesn't refer to any argument involving Moshe Rabbeinu, but I'll have to check that first sicha you've quoted... can you provide a link please? – Matt Jun 23 '14 at 23:37
@Matt, the Sicha starts here. – Yishai Oct 23 '14 at 22:06
@Matt, the specific reference is here but it doesn't bring the Seder Hadoros and doesn't really explain it, but the note at the bottom says to read further to Achron Shel Pesach. No time to check. Let me know if you need help with the Yiddish. – Yishai Oct 23 '14 at 22:20

According to Shu"t Min HaShamayim 3, the question of whether Rashi tefilin or Rabbeinu Tam tefilin is correct is a dispute between G-d and the yeshivah shel maalah. Therefore, when Mosheh got the mesorah from G-d, he only got one opinion.

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Out of curiosity, Who hold what? – Shmuel Brin Aug 24 '12 at 21:28
@ShmuelBrin I'm not an expert in the subject, but from what I know, it seems G-d held like Rabbeinu Tam (since G-d holds the "vehayah"s are in the middle and the yeshivah shel maalah holds they're in order, and Rashi holds everything's in order) – b a Aug 24 '12 at 22:04
I'm sorry, what? – Seth J Aug 27 '12 at 3:22
@SethJ Are you asking how G-d and the yeshivah shel maalah disagree, or are you asking why G-d only gave Mosheh His opinion and not the yeshivah's, or are you asking why I think G-d held like Rabbeinu Tam, or are you asking what the "vehayah"s are, or are you asking something else? – b a Aug 27 '12 at 5:28
Let's start with one at a time... Go with the first one. – Seth J Aug 27 '12 at 13:46

One might ask: if, as we established in Chapter One, all the basic explanations if the laws of the Torah were received from Moses, (the general wording of the laws {written in the Torah} and also the particulars and details of all the laws of the entire Torah were spoken on Sinai- the Tora Kohanim, B'har) then what is that special class of laws designated by the term "Halacha L'Moshe Mi-Sinai"-Laws given to Moses at Sinai?

This basic point must be understood: [None of] the explanations which were known to have originated with Moses were ever contested. Ever since Moses,until the present, we have never found a dispute arising among the sages of any time or era- from the days of Moses to those of Rav Ashi- in which there would be a sage who would say that one who takes out the eye of his follow has his eye removed as an observance of the verse, "Eye replaces eye" (Deut. 19:21), and that it would be only another sage who would state that the verse merely means he is obligated to monetarily compensate for the loss.

Neither have we ever found any disagreement arising over the meaning of the verse, "You shall take the fruit of he glorious tree" (Levit. 23:40).... Such facts are not contested, because they were all traceable back to Moses. Concerning all such acts the Rabbi's stated "The general outlines, and also the details and the particulars of the entire Torah were told on Sinai."

However, even though they were stated by Moses and therefore no disputing them the specifics can, in addition, be extracted through the science of Torah-interpretation given us. We can derive these known explanations from the Written Torah through one of the various applications of s'varos, through the ashmachtos, the proofs, and indications planted in Scripture. [How to extract these explanations from Torah's verses can be a matter of dispute.]

-Maimonides Introduction to the Talmud, translated by Zvi Lampel

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I understand that there is disputes and thats fine,but why not do exactly like Moshe Rabbeinu did? – sam Oct 22 '12 at 21:29
I think you misunderstood my q,i even qoute the Rambam – sam Oct 22 '12 at 21:31

There's another way to approach this question. Consider the US constitution, l'havdil. We have not only the original document, and a record of all the debates during it's composition, but also extensive writings of each of those that participated in it's writing regarding exactly what they meant when they wrote it. Additionally we have a great body of precedent law, yet there are today radically different approaches as to how to interpret it and what it means among Supreme Court justices.

Rav Haym Soloveitchik wrote an article called Rupture and Reconstruction dealing with the issue of how living traditions are overturned based on textual analysis:

The author asserts that contemporary Orthodox Jewish religion and practice has undergone a major and profound change in nature during his lifetime. Where observance of Jewish law was once organic and transmitted through family tradition as much as by text and rabbinic literature, it has now become disconnected from family practice and connected only to the written word, the author explains.

While he limits this to modern times, i.e. "his lifetime", it seems to me that the basic idea of people introducing theoretical doubts were none had previously existed, and then using that to overturn or significantly change living traditions and existing practice has been going on for a very long time.

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The reason why we can't use 'Moshe Rabeinu's Shittah', is because we don't know it in many instances.

This is because when Moshe Rabeinu passed away we lost 3,000 Halachos (i.e. we forgot them during mourning) (Rashi, Yehoshua 1:2).

We do have the tools to derive from the Torah what those Halachos are (Moshe Rabeinu taught them to us), but these rules are very general in nature and therefore we get two opinions on how to learn a given Passuk.

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'many instances': In what instance do we know what his shittah is? – Double AA Aug 27 '12 at 1:17
@DoubleAA, I suppose anything about which there's no machlokes: e.g., that you can't deliberately light a fire on Shabas. – msh210 Aug 27 '12 at 2:46
@msh210 While I agree it is likely that that particular rule has remained constant, I can't say it with 100% certainty, nor can I say so about any halacha. As outlined in the other answers, deoraita dinim can change (by going through an appropriate process) so it could very well be (and likely is true) that some halacha changed between Moshe's time and the earliest recorded halacha. – Double AA Aug 27 '12 at 2:59
The Tefilin of Rashi and Rabeinu Tam could not conceivably have been forgotten. It was worn simultaneously by hundreds of thousands. – gaagu May 27 '14 at 18:46

I think the point is that there isn't an unbroken tradition that goes back to Moshe; if there was we would know. The 'oral law' is just the opinions of men and not revelation from G-d. If there were an unbroken tradition going back to Moshe we would know, wouldn't we?

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Would we? How would we know exactly? – Double AA Dec 5 '13 at 9:58

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