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Did Rabbinic Laws such as Muktzeh exist in the time period between the receiving of the Torah and the time they were written down and institutionalised in Halacha?

Are there different opinions on how this developed over time? Do some say that in fact all the Rabbinic laws we have today were given at Sinai as part of the Oral Law? Which were, which weren't?

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    A distinction needs to be made between Rabbinic ordinances like Muktzeh, which clearly didn’t exist before they were created, and the Oral Law, which was given on Sinai. I don’t see how anyone could say that Rabbinic laws actually existed and were binding before the Rabbis coined them; sure, Avraham kept them, so the concept existed, but they weren’t binding on all of Jewry until the Rabbis formally instituted it. – DonielF Mar 27 at 21:22
  • Muktza was enacted by Nechemia, no? – Double AA Mar 27 at 21:31
  • And Ezra....... – sam Mar 28 at 0:13
  • @sam Looks around nervously "What do you want from me!?" – ezra Mar 28 at 6:53
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    @ezra I think the question is what you want from us... – DonielF Mar 29 at 21:56
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By definition, no. That is what makes those laws rabbinic. But...

There are cases where the Talmud finds a derivation from the Torah using the principles of derashah, and then says that despite this, the law is rabbinic. The derivation is declared to be an asmachta, something to attach to. My rebbe in grade school compared it to a hook to hang your hat on. I think of an asmachta as a mnemonic tool -- the law doesn't really come from the verse, but the verse can help you remember the law.

The Raavad has an interesting position on asmachtos. (Rabbi Avraham ben David, c. 1125 – 27 November 1198, Prevence, best known for his gloss on the Rambam's code where he generally disagrees with the Rambam's rulings. In his lifetime he worked hard at resisting the growing influence the Rambam was having on 12th cent Prevence.)

According to the Raavad in his gloss on Hikhos Mamrim ch. 2, asmachtos were given by G-d. G-d "Thought" this law could be worth legislating in the right circumstances, and therefore suggests it in the Torah. However, He left it up to the rabbis to decide whether to actually decree it or not, whether the situation it would be good for arose.

There is also a middle ground -- divrei soferim ("the thoughts of the soferim"), where "soferim" is the term used for the religious leasership during the early Second Temple period, i.e. the members of the Great Assembly. Like when Ezra is referred to as "Ezra haSofeir". Sometimes this category of laws is called "divrei qabbalah" -- the words that were received; i.e. laws enacted by an early beis din like the Great Assembly.

The thing is, divrei soferim were rabbinic laws, but where some of the rabbis were also nevi’im (prophets). While halakhah cannot be made by prophecy, at least not since Moshe, halakhos made through rabbinic means where the rabbis can "hear" that G-d gives His after-the-fact approval could be something more than regular rabbinic laws.

As an example: Those who believe this is a distinct category would include Purim as divrei Soferim rather than usual rabbinic law. Some achronim rule that the obligation for women must hear megillah and the other mitzvos of Purim is rabbinic but for men it’s divrei qabbalah (to use the phrase that is usually used in the discussion of Purim). Thus, their obligation is lesser.

So, the answer is -- rabbinic laws are created by rabbis. Some might have been suggested by G-d for the rabbis to create if and when appropriate. (According to the Raavad, and not, say, the Rambam.) And others are a bit more than rabbinic, because after they were created, G-d ratified them.

Some of the above overlaps with my answer to "What is the difference between a takana and a gezera?" It is a general taxonomy of rabbinic law, as taught in a class Rabbi Yonasan Sachs. (Not the former chief rabbi, that's Rabbi Lord Jonathan Sacks. This is the head of the yeshiva at Lander's College and the Rabbi of the Agudah of Passaic-Clifton.) And then embellished over time.

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