Rabbi Richard S. Rheins

For customs are unwritten laws, the decisions approved by men of old, not inscribed on monuments nor on leaves of paper which the moth destroys, but on the souls of those who are partners in the same citizenship... Praise cannot be duly given to one who obeys the writ­ten law, since he acts under the admonition of restraint and fear of punishment. But he who faithfully observes the unwritten deserves commendation, since the virtue which he displays is freely willed.’

Philo’s thought was echoed in Pirkei Avot (3:17):“Masoret seyag laTorah...”(Tradition is a protective fence for the Torah ). Schol­ars and sages two thousand years ago knew that if the Torah were to have a meaningful, ongoing and just impact on the lives of contemporary Jews , it had to be accompanied by commen­tary, interpretation and creative legislation. As Maimonides wrote in his introduction to the Mishnah:

Know that every mitzvah the Holy One Blessed Be He gave our teacher Moses , peace be upon him, was given to him with detailed explanations. First He gave him the mitzvah, then He told him the explanation and details and all wisdom contained in the Torah verses.... When a situation arose on which no explanation had been heard from the prophet(Moses ), they determined a response by means of deduction, logical argument guided by the thirteen methods of Torah interpretation.... Whenever a disagreement developed, they followed the majority opinion, as the Torah pre­scribes(Exodus 23:2):“to decide according to the majority.”18

The Torah required commentary, interpretation and creative application that met popular approval among the sages and no doubt from the general population as well. Indeed, the ascen­dancy of the Pharisees and their heirs, the rabbis, was due in large part because of the popular support they earned by demon­strating a mastery and creative approach to Scripture . Our best first-century eyewitness Josephus maintained that the popular support and influence of the Pharisees was due to the reputation they had for excellence in their interpretation of the Torah (A.J. 17.41; B.]. 1.110; 2.162; Vita 191) as well as for the customs they introduced and transmitted(A.J. 13.296, 297, 408).

For the early Sages, protecting the Torah meant safeguarding the Jewish people and promoting the continuance of the ancestral faith, not by slavish obedience to the literal words of the Torah , but through various forms of legislation that could enhance the essence of the Torah ’s message and intent. This legislative activ­ity was the beginning of the classic rabbinic halakhic process.

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