When did “Lo B'Shamayim Hi” Come Into Effect?

Question

The concept of Lo B'Shamyim Hi (It is not in heaven) is a central tenet to the Halakhic process amongst Rabbinic Jews and is summarized nicely by this Wikipedia Article:

The phrase "not in Heaven" is understood to justify man's authority to interpret the Torah. The Talmud explains "[The Torah] is not in Heaven" to mean that the meaning of the Torah itself is to be uncovered not by prophets, or even God's miracles or words, but by man's interpretation and decision-making. In the story of the Oven of Akhnai,[3] "Rabbi Yehoshua affirmed the independence of man's interpretation from divine intervention since this is what God wills. In support he adduces the biblical statement that the Torah is 'not in heaven' (Deuteronomy 30:12)."

In the academic study of Jewish law, the verse "not in Heaven" serves as the Biblical grounding for the jurisprudential structure of halakhah (Jewish law). The source for Rabbinic authority is really from Deuteronomy 17:11 (According to the law which they shall teach you, and according to the judgment which they shall tell you, you shall do). As one author explains, thanks to the midrashic reading of the verse, "...God himself acquiesced in His exclusion from the halakhic process. Having revealed His will in Sinai in the grundnorm, He Himself, according to the Rabbinic explanation, entrusted the interpretation of His will to the Sages."

Source: https://en.wikipedia.org/wiki/Not_in_Heaven

But my question is when did Lo B'Shamayim Hi come into effect? For example there are many laws given in the Torah that don't take effect until the Israelites are in the land of Israel. In the case of Lo B'Shamayim Hi we see Moses not applying this concept in several important instances. In at least 2 instances a situation arises in which Moses is unable to render a decision, the judges/princes/leaders are unable to render a decision, and apparently no attempt to arrive at a decision by majority happens. Instead Moses goes to God to get these halakhic matters resolved like in the case of Zelphehad's daughters.

Numbers 27:1-8

The daughters of Zelophehad son of Hepher, the son of Gilead, the son of Makir, the son of Manasseh, belonged to the clans of Manasseh son of Joseph. The names of the daughters were Mahlah, Noah, Hoglah, Milkah and Tirzah. They came forward 2 and stood before Moses, Eleazar the priest, the leaders and the whole assembly at the entrance to the tent of meeting and said, 3 “Our father died in the wilderness. He was not among Korah’s followers, who banded together against the Lord, but he died for his own sin and left no sons. 4 Why should our father’s name disappear from his clan because he had no son? Give us property among our father’s relatives.”

5 So Moses brought their case before the Lord, 6 and the Lord said to him, 7 “What Zelophehad’s daughters are saying is right. You must certainly give them property as an inheritance among their father’s relatives and give their father’s inheritance to them.

8 “Say to the Israelites, ‘If a man dies and leaves no son, give his inheritance to his daughter. 9 If he has no daughter, give his inheritance to his brothers. 10 If he has no brothers, give his inheritance to his father’s brothers. 11 If his father had no brothers, give his inheritance to the nearest relative in his clan, that he may possess it. This is to have the force of law for the Israelites, as the Lord commanded Moses.’”

So my question is, when did Lo B'Shamayim Hi come into effect? Was it at the appointing of the judges, and if so, why don't we have instances of it being utilized and instead have only the opposite? Or perhaps it happens after the death of Moshe? But even that seems problematic as clearly the Umim and the Thumim were used to try and divine decisions.

So when was the concept of Lo B'SHamayim Hi supposed to be put into effect?

Answer 1

Well we know what month it went into effect.

As I see it, this is a side-effect of the dispute over who wrote the last 8 verses of the Torah.

There are strong indications that Moshe's role was to transmit the Torah to us. "Torah tzivah lanu Moshe -- Moshe commanded us the Torah" (Devarim 33:4). R Simlai uses this verse to derive the number of 613 mitzvos -- Moshe relayed 611 of them, the gematria of "Torah", and 2 heard directly from Hashem at the beginning of the 10 commandments. (Makkot 23b) So this verse in Devarim is taken to be specifically about Moshe giving us halakhah.

Similarly, Hashem has Malachi enjoin his audience to obey halkhah with the words "Zikhru Toras Moshe avdi -- Remember the Torah of My servant Moshe" (3:22)

However, there is a debate in a beraisa (Bava Basra 15a, Menachos 30a) about the last 8 verses of Devarim that describe Moshe's passing, burial, and the nation's mourning for him. One opinion was that Moshe couldn't have written them, since at the time it wasn't true yet -- and it was unthinkable that Moshe would write an untruth. The other is that Moshe wrote it "with tears".

According to the opinion that Yehoshua wrote those words, then we delay the end of the giving of the Torah to the end of the month described in verse 8.

According to the position that Yehoshua wrote these verses of the Torah, it would seem that one can derive halakhos from a text written after Moshe.

But there is a third position, that the last 8 verses are not themselves Torah. This is suggested by the Meshekh Chokhmah (Ki Savo 28:61). These verses are required for a seifer Torah to be kosher, but they are an appendix, not part of the actual text of the Torah. The Meshekh Chokhmah does not believe there could even be a debate about whether Yehoshua wrote actual Torah. So, in his opinion, the last 6 verses were written by Yehoshua, but the giving of the Torah from heaven to earth did end with Moshe.

Which (I may add), nicely fits our citation of R Simlai as well, since there are no mitzvos in these verses.

Also, neither the Bavli nor the Yerushalmi (nor any of the medrashei halakhah the Bar Ilan CD) derive an actual halakhah from these verses. IF Yehoshua wrote verses that are considered Torah, we could assume that derashos could still be there, just either not found, or if found, not cited in print.

Answer 2

The gemara Eruvin 13b says that there was a machlokes between Beis Shamai and beis Hillel for 3 years while they tried to determine who the halacha would follow. Eventually a bas kol (heavenly voice) called out and said that while both opinions were "the words of the living G-d" the halacha is like beis hillel. אלו ואלו דברי אלקים חיים והלכה כבית הלל.

This is accepted as the normative halacha.

The gemara yevamos 14a, and the tosfos there and in Bava Metzia 59b (the achnai oven) discuss different ways of reconciling this with the gemara of lo bashamayim hi.

But what comes out from it is as follows:

At least during the time of beis shamai and beis hillel, a heavenly voice was used to determine what the halacha will be.

After the story of R' Yehoshua and R' Eliezer and the oven of Achnai, we have he accepted halachic position of Lo BaShamayim hi the halacha is established down on earth, not with heavenly voices.

The change took place during these couple of generations between the students of Hillel and Shamai, and R' Yehoshua and R' Eliezer (this is also the time of R' Gamliel and R' Akiva as is clear from the story there.)

See also Collected Writings of Rav S.R. Hirsch, the Volume on the Oral Lawe (I think it's vol 5, but I can't access it currently.) He discusses these gemaras and these issues and explains it in a bit more detail.