Why don't we just follow the shittah of Moshe Rabeinu?

Question

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)

Answer 1

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."

Answer 2

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

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

Originally, for the first 1300+ years after matan torah, there was no machlokes at all about psak halacha, as there was a complete mesorah from Moshe Rabbeinu as to what the halacha was in every situation, and even if a machlokes started (based on someone forgetting the halacha, the sanhedrin hagadol would pasken and then that would be the new din, with no arguments whatsoever. (It would even be accepted in shamayim because of lo bashamayim he). However, in every generation the chachamim would still argue out every tzad in every sugya, with full pilpul, because of lihagdil torah ulihadira. The one machlokes that did start, 1500 years after matan torah, about smicha on yom tov, was a special case where the sanhedrin could not pasken because the rov said one way and the mufla she'bi'beis din said the other (i.e. the nasi and the av beis din). (For a more in-depth analysis on this part see the beginning of the margalios hayam on sanhedrin.)

Then, in the time of Yose ben Yoezer, the end of the Eshkalos (Ish she'hakol bo; those who knew everything - see Rashi on the sugya in Temurah), the rabbanim stopped knowing everything and began to get confused, mixing up the kabalah going all the way back to Moshe Rabbeinu and the pilpul, with each side sure that one of the 2 sides, which worked fully with all of the rest of the Torah as well as logically, was what the kabalah was going back for dorei doros, and what Moshe Rabeinnu and the sanhedrin had said as well.

Therefore, we cannot just do what Moshe Rabbeinu did, as that is exactly what we are arguing about in the first place (and even if we are wrong, once we pasken Moshe, and the Rebono shel Olam would pasken like us).

Answer 7

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?