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Are halachos that were received at Sinai (or in the desert shortly after) but not recorded in Tanach--such as the method for kosher slaughter alluded to in Deuteronomy 12:21--considered rabbinical or biblical laws? I ask because, if rabbinical, they would seem to be of a higher status than many other forms of rabbinical law (g'zeiras, takanas, derashah, etc.) insofar as they were given to Moshe Rabbeinu along with the written Torah.

If rabbinical, are these treated entirely as "regular" rabbinical laws--subject to the same norms of self-limitation as the others--or as in any way distinct or higher? (In what cases?) And why would the Oral Law be considered rabbinical if Halacha l'Moshe mi'Sinai is considered biblical?

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    IIRC, Rabbeinu Yona, ikn his comment to the opening Mishnah in Pirkei Avot that states "Moses received the Torah from Sinai", explains that this includes the Oral Law as well as the written one. That seems to imply that the Oral law is d'oraita. I'll see if I can locate this as I have fuzzy memory on this. Excellent question! I would have not analyzed it this way. – DanF Nov 3 '16 at 14:28
  • Another thought - since the Torah gave the rabbis authority to implement their own laws, it could be said that all Rabbinical laws are d'oraita, no? I think the main thing that distinguishes them is the "technicalities" of punishments for disobeying them as well as "leniencies" esp. when we compare them with d'oraita laws. – DanF Nov 3 '16 at 14:43
  • @DanF Glad you liked my question :) I learned that the only differences were that the d'rabbanans could be limited in application by the rabbis just as they were created by the rabbis, and that the d'rabbanans always(?) yield to d'oraisas that may conflict with them. So that's what I'm wondering about the Oral Law: which group it falls into. I'm also wondering what fraction of Talmud consists of the Oral Law itself, and whether this part could be biblical even though the rest of Talmud is rabbinical, and how we tell the difference. – SAH Nov 3 '16 at 16:25
  • Why would you suspect they are rabbinic? Have you done any research so far? – mevaqesh Nov 3 '16 at 19:35
  • @DanF Everyone agreed that Moshe received material besides the written law at Sinai. At least some of this is sometimes called Torah. This is all we see from what you cited, which tells us nothing about the status of this material. – mevaqesh Nov 3 '16 at 19:37
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A great question, which is treated in Rambam and Ramban around the Sefer Hamitsvot. Sefer Megilat Esther quoted Sefer Zohar Harakyia which explains the Rambam. We will try to explain Rambam view. What is called Oral law? What is called rabbinical? Are there halachot entirely orally transmitted which are not rabbinical? Is there a hierarchy in rabbinical laws? In the introduction to his commentary to Mishna . Rambam clarify all this

  1. There are for some halachot written in Tora and their meaning is unanimously recognized thanks to oral transmission (e. g. concerning the 4 minim and lex talionis, shechita). The orally transmitted information is not rabbinical, that is, not discovered by chachamim. This is a first kind of oral law from Sinai considered deorayita. There's sometime a way to understand or deduct à postériori those halachot from the written Tora.

  2. Some halachot are transmitted from Moshe from Sinai and have no scriptural allusion . They are called in Chazal "Halacha Lemoshe Misinai" . Ramban (root 2) disagreed with the fact that Rambam called them "from scribes words" and Zohar Harakyia answered that Rambam too considered those dinim as deorayta concerning safek as for shyurim (kazait, cabetsa... ) deorayta which are purely Halacha Lemoshe Misinai. The term divre sofrim is ambiguous and make the Rambam hard to understand.

  3. Some halachot are found through reflection and reasoning, often in verses, sometimes are very old, even from Moses himself and are called from scribes words (sefer Hamitsvot shoresh 2). When we say reasoning this includes the use of thirteen midot to interpret Tora . When we afford the 13 midot, we separate here two kinds of dinim learned from 13 midot. The first results from deduction without transmission. The second is transmitted. Chazal said that they are Tora equivalents. Zohar Harakyia explains: The dinim from the second group are deorayta concerning rules as sfeka deorayta but Rambam called them derabanan to express that they cannot be counted in 613 M because they are stemming from roots which are the 613 M . For each item of this second group, Chazal said explicitly that this din is deorayta (for instance tum'at nivlat clean bird which Rambam called derabanan in intro to seder taharot, and paskedthis rule as deorayta, kiddushe kesef also are called by Rambam divre Sofrim but their din is din Tora in each detail ) .

    Are halachos that were received at Sinai (or in the desert shortly after) but not recorded in Tanach--such as the method for kosher slaughter alluded to in Deuteronomy 12:21--considered rabbinical or biblical laws?

    Not recorded but alluded are this kind and are divided in two subgroups as mentioned. Rambam calls them divre Sofrim but those transmitted from Sinai have the same rules than Torah exactly.

There is no Machloket between Chachamim in the two first kinds. But in the third (for his first part ) there are often Machloktot.

  1. The fourth kind of halachot are ordinances . There are rabbinical even if Moses decreed them.

  2. The fifth are enactments which are innovations called takanot, and are also rabbinical.

    I ask because, if rabbinical, they would seem to be of a higher status than many other forms of rabbinical law (g'zeiras, takanas, derashah, etc.)

    Gzeras are the fourth kind and are rules with specific kulot of rabanan rules. Takanas are the fifth kind. They have also owns special rules.

    Higher status for second kind and second part of third kind.

    If rabbinical, are these treated entirely as "regular" rabbinical laws--subject to the same norms of self-limitation as the others--or as in any way distinct or higher? (In what cases?)

    Rabbinical is their name az explained Zohar Harakyia (Rabbi Shim'on ben Tsemach Duran) because they are transmitted by Chachamim without written (biblical support) but their status is deorayta.

    And why would the Oral Law be considered rabbinical if Halacha l'Moshe mi'Sinai is considered biblical?

    In Rambam terminology both are called derabanan and have orayta status.


You can see the mefarshim on Sefer Hamitsvot. The discussions about the second root are a bit length and complex. I hope this helps. If somewhat is not clear I will try to improve it.

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  • @kouty Thanks for this fantastic answer. Very interesting and confounding to learn that laws which are d'oraysa may be called "derabanan." How would one know the difference? – SAH Nov 4 '16 at 14:41
  • @SAH thank you for your feedback for decreed it is fixed. For dinim deorayta called derabanan, more accurately they are called in Rambam divre sofrim. For takabot Moshe there are a lot, e. g. Kriat hatora shabbat, שבעת ימי המשתה. I will beli neder search the list. – kouty Nov 5 '16 at 18:36
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(I ran out of time to look up and provide sources beyond those for the central point. This answer is known to be incomplete. I am posting it now anyway with plans for further editing so that (1) I don't risk losing what I typed so far, and (2) I can crowdsource the job of finding those sources. So rather than downvote before those edits, how about contributing to the effort?)

As a prelude, we should clarify that there are actually two uses of the expression "halakhah leMoshe miSinai":

First, it is used literally. A law given to Moshe from Sinai. Sinai here is broad, meaning the wilderness, not the mountain. There is no guarantee that this particular detail was received during Moshe's 120 days atop the mountain.

Second, it is also used idiomatically, "as sure as if it were given to Moshe from Sinai". This idiom is used for laws that were known to be rabbinic enactments. It even later got used in Ashkenaz to refer to Nusach haTefillah -- traditional tunes used by chazanim.

I will limit this answer to the first, literal, usage.

What does it mean that the law is categorized deOraisa? The most notable pragmatic difference is that we err on the side of stringency when a doubt arises in a Torahitic law (safeiq deOraisa lechumera); while if the law were deemed rabbinic, we are permitted to be lenient in cases of doubt (safeiq derabbanan lequla).

Among other potential pragmatic differences is that one person can only fulfill an obligation on behalf of another if the person doing the action is equally obligated. A person who is only obligated deRabbanan could not fulfill an obligation for someone who is obligated deOraisa. But the issue of safeiq (doubt) makes an easier to find litmus test.

One last clarification before getting to actually answering. There is a middle ground between deOraisa and deRabbanan. Megillah reading for men was legislated by the Anshei Keneses haGedolah (the Great Assembly; the high court of the early 2nd Temple period), and therefore is not deOraisa. However, among the members of the legislating court were many prophets, so that the law had Hashem's imprompeteur. It is not just another rabbinic law. In contrast, it is rabbinic law that women hear megillah. For this reason, the aforementioned rule applies: because a woman is less obligated to hear megillah than a man, a man cannot fulfill his obligation by hearing a woman read. Some sources understand the term "divrei soferim" as referring to this middle ground -- prophet endorsed rabbinic law. After all, sages of this period are often called by the term "soferim", such as "Ezra haSofer".

So, after all that, I would reduce your question to: When a law is deemed halakhah leMoshe miSinai in the sense that Moshe actually was given the law by G-d, would doubts in that law be ruled stringently? If so, it would make sense to apply the term deOraisa. But if not, we would need to see if other bellwethers apply. If the results are mixed, perhaps halakhos leMoshe miSinai also sit in the middle ground.

Measures (shiurim) are halakhos leMoshe miSinai (Yerushalmi Pei'ah 1:1, Bavli Sukkah 5b, Yuma 80a). But when measuring something for the sake of a mitzvah deOraisa, we rule stringently. (Rav Avohu on Niddah 58b, and invoked by Tosafos, Berakhos 26b). We do not consider having the necessary size / weight / duration a rabbinic amendment to the original deOraisa law.

So it would seem that from a pragmatic point of view, the answer to your question would be that they are deOraisa.

  • It should be noted that the status of Megillah reading is the matter of a Rishonic dispute. Some wrote that one must be stringent as with a biblical law, (as Rabbi did in Tiberius), while according to others, that was a mere stringency. Indeed, according to Rambam, it is the archetypal rabbinc ordinance. Cf. his introduction to MT. – mevaqesh Nov 4 '16 at 5:57
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    Note the dispute in the Yerushalmi over whether or not shi'urim are biblical or rabbinic. Note as well, that according to Rambam a benchmark (IMHO a primary definition) of d'orayta laws is their eternal stasis, wheras all things rabbinic are subject to change. Noteworthy in this context, is the Talmud's suggestion that some shi'urim (in that case the requisite amount of matsah) may change. – mevaqesh Nov 4 '16 at 6:00
  • @mevaqesh: The Rambam writes about the lack of change or dispute in halakhos leMoshe miSinai in particular, despite also listing shiurim as halakhah leMoshe miSinai (#7 in the list in Seifer haMitvos) and discussing disputed shiurim. Tzeroros (#22) is another case where the mishnah and gemara reflect flux in a law the Rambam declares HlMmS. I decided to avoid the whole topic of the Rambam's position because it's a well-discussed quandary. (eg Chavos Yair #192) – Micha Berger Nov 4 '16 at 6:21
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    Many if not most Rishonim of course felt women could read for men. (I'm not saying some don't provide your logic, but it's far from universally accepted.) – Double AA Nov 4 '16 at 14:37
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    @MichaBerger Thanks for this nice answer; the information is great and very relevant. However, it seems you are answering a slightly different question than what I have asked, namely, whether what we call "halacha lemoshe misinai" is biblial or rabbinical. Although I am very interested in that too as it concerns the premises of my question, I am ultimately most interested in whether the so-called "oral Torah"--the body of stuff we understand as having been given to Moshe Rabbeinu concurrently with the Torah, but not written, and only transmitted through our Sages until the time of the Talmud+ – SAH Nov 4 '16 at 14:51

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