Is the Talmud 100% Oral Torah?

Question

I've been taught that the Oral Torah was passed from generation to generation from Moshe Rabbeinu. And I've also heard that the Talmud is basically a recollection of Oral Torah. This would suggest everything in the Gemara comes from knowledge that was given by Hashem to Moshe.

But I recently studied part of the Masechet Brachot in school, and one of the things we read was the importance of the Kaddish and how Hashem reacts in heaven when we say it. But the Kaddish wasn't there at the time of Moshe. How could this be part of the Oral Torah then?

Please correct me if something I said is wrong. But I really don't understand this.

Answer 1

As far as the main question is concerned, the Ramban in his debate with Pablo Christiani states (in the beginning of the section entitled "על האגדות") that the corpus of the Torah can be divided into three sections:

1. The Bible, in which we all have complete faith
2. The explanation of the mitzvos in the Talmud, which we also fully accept
3. The midrashim, or sermons on the bible, which we are not required to accept as part of the Oral Law, as they represent the private opinions of the person who said the sermon.

Being that a significant portion of the Talmud contains aggadic material that fits in the last category, it is logical to conclude that the Talmud is not 100% Oral Law.

With regards to Kaddish specifically, Kaddish could be considered part of the Oral Law insofar as it's recitation was an enactment of the Rabbi's, similar to the lighting of Chanukka candles or the celebration of Purim, both of which commemorate events which took place after the bible was canonized, and therefore perforce are not of the Written Law.

Answer 2

The Talmud has it's basis in oral tradition, but in general it is not a direct transmission from previous generations.

Here is what the Aruch HaShulchan wrote about the Talmud. It is found in his introduction, printed in the beginning of Choshen Mishpat, s.v. Vizehu HaMishna.

'Rabi Yehuda Hanasi had compiled all the laws with his colleagues into a short work meant as an aid for memorization called the Mishna. These laws were all traditions tracing themselves back from one teacher to the last all the way to Moshe Rabbeinu.

Afterwords, the Chachamim had to interpret the hints in the Mishna to know the laws. This interpretation along with interpreting the secondary works of law left by Rabi Yehuda Hanasi and his generation called Toseftos, Braisos, Sifra, Sifrei, and Mechilta make up the law section of the Talmud.

In the days of Ravina and Rav Ashi, they and the Chachamim in their days 'closed the Talmud' being that not all minds were able to properly understand the hints in the Mishna.

Also included in the Talmud, adds the Aruch HaShulchan (s.v. Od Hosiphu) was 'much of knowledge. They also added much Agados and Drashos that have to do with Maasei Bereishis and Maasei Merkava and other knowledge of philosophy and nature and hid these concepts in parables so that all who are intellectually astute could decipher them, and all who cannot will not lose out, being that these ideas do not effect keeping of any laws. But all actual laws that pertain to the Torah and Mitzvos were written straightforward and explained openly.'

Answer 3

The Rambam, in his introduction to the Mishna (and Oral Law in general) explains that the definitions of the Mitzvos were passed down from Moshe Rabbeinu, and there are no arguments on these. In this category is our interpretation of the פרי עץ הדר as the Esrog, that Shechita means the slaughter as we know it, that מלאכה on Shabbos means the 39 tasks, and the many details of the Succah.

There are also many issues and scenarios that came up after Moshe Rabbeinu, and it is impossible to fit any and all scenarios into any book or scroll. But Moshe gave us the tools to deal with these. There are thirteen methods of extrapolation that were passed down and we used these methods to deal with the new questions that arose over time. Since these are derived by us there will be differences of opinion of what exactly to learn from the verses. The differences are minute since the methods we use are the same. But it is unavoidable to have slightly different outcomes depending on different perspectives.

The Rambam explains that in early times, when the students spent much time with their rabbis, they would even pick up their attitude and perspective to the extent that there would be no argument among the students when tackling new issues. They would all view it the same, with the perspective that was passed on to them.

Although we have these differences of opinion, the Talmud in Chagiga (3b) tells us:

Should a man say: How in these circumstances shall I learn Torah? Therefore the text says: ‘All of them are given from one Shepherd’. One God gave them; one leader uttered them from the mouth of the Lord of all creation, blessed be He; for it is written: (Exodus 20:1) ‘And God spoke all these words’.

The Tanna DeBei Eliyahu (c. 2) likens the relationship of Oral Law and Written Law to a case of a king who gave his servants wheat along with bundles of flax. Those who were smart made fine table cloths from the flax and loaves of bread with the wheat and welcomed the king proudly when he came to check up on them.

The same goes for the Torah. We were given the original laws and the rules by which to extrapolate their details and application. With these we produce many volumes of law and thought, all directly based on what we learned and received. There is no outside input. We aren't introducing any ideas outside the framework of the tools which were passed down.

To sum this all up, Oral Law includes those laws which are directly passed down, and those laws which were derived using the tools which were passed down.

Another category is the rabbinic law. These are the rulings of Gezeiros, or boundaries, in which the rabbis decreed certain things in order to round out the biblical laws. This means that at times something might be technically permitted but to the untrained eye it seems no different from what is actually prohibited. In these cases the rabbis outlawed the likeness of the biblical prohibition. Other rabbinic prohibitions are to keep people away from scenarios that would have them easily sin with or without noticing.

These too are actually fulfilling the tradition and are based on their understanding of a situation and what they learned about the role of leaders in enforcing the Torah and making it accessible to all.

Along these lines, the early Great Assembly, the Anshei Knesses Hagedolah, codified and formulated the format of the prayers. Prayer itself is a biblical requirement but its format and timing is rabbinic. But this is all part of Oral Law.

Answer 4

Rambam writes about the tripartite division of Torah study:

Hilchot Talmud Torah 1:11

וחייב לשלש את זמן למידתו שליש בתורה שבכתב ושליש בתורה שבעל פה ושליש יבין וישכיל אחרית דבר מראשיתו ויוציא דבר מדבר וידמה דבר לדבר ויבין במדות שהתורה נדרשת בהן עד שידע היאך הוא עיקר המדות והיאך יוציא האסור והמותר וכיוצא בהן מדברים שלמד מפי השמועה וענין זה הוא הנקרא גמרא

A person is obligated to divide his study time in three: one third should be devoted to the Written Law; one third to the Oral Law; and one third to understanding and conceptualizing the ultimate derivation of a concept from its roots, inferring one concept from another and comparing concepts, understanding [the Torah] based on the principles of Biblical exegesis, until one appreciates the essence of those principles and how the prohibitions and the other decisions which one received according to the oral tradition can be derived using them. The latter topic is called Gemara. (Chabad.org)

It would appear from here that the "Oral Torah" is rather limited – all the analysis (which is probably the majority of the Talmud) is the third category of "Gemara" rather than the second category of "Oral Torah".

R. Yosef Messas has a responsum addressing precisely this question:

Otzar Hamichtavim 1:234

עוד שאל מעלתו אם אוכל להודיעו בראיה מה היא תורה שבע"פ אם כל הש"ס בכלל או לא דע ידידי כי תורה שבע"פ הם המשניות דוקא והגמרא היא פי' המשניות וכל הכתוב בש"ס שאינו נוגע לפי' המשניות אינו בכלל תורה שבע"פ רק דרשות ואגדות ואזהרות של חכמי הש"ס כמ"ש בהקדמת המעתיק פירוש המשניות להרמב"ם ז"ל בס' נזיקין וזל"ה רבי' משה וכו' בפי' המשניות שחבר וכו' ולפי שהם עיקר תורה שבע"פ וכו' פירשם בלשון ערב"י וכו' ע"ש וכ"כ רבי' שמואל הנגיד זצ"ל במבוא התלמוד וזל"ה התלמוד נחלק לשני חלקים משנה ופי' המשנה המשנה היא הנקראת תורה שבע"פ והיא יסוד התורה וכו' וכו' ע"ש ושלום

His Honor further asked if I could inform him with proof what is the Oral Torah – if all of the Talmud is included or not.

Know my friend that the Oral Torah is specifically the Mishnayot, and the Talmud is the explanation of the Mishnayot, and anything written in the Talmud that is not relevant to the explanation of the Mishnayot is not included in the Oral Torah. It is simply the expositions, aggadot, and warnings of the Sages of the Talmud, as is written in the introduction of the copier of Rambam's Commentary to Mishnayot in the Order Nezikin, and these are his words: "R. Moshe, etc. in his Commentary to Mishnayot that he wrote, etc. and because they are the essential Oral Torah, etc. he explained them in Arabic etc." see there. And so wrote R. Shmuel Hanagid in his preface to the Talmud, and these are his words: "the Talmud is divided into two parts, the Mishnah and the explanation of the Mishnah. The Mishnah is called the Oral Torah and it is the foundation of the Torah, etc. etc." See there, and peace.