Parshat Toldot: A Crackpot Theory on the Avot Keeping the Torah (from 2013)

This is a long one, fair warning. It’s a theory I’ve been playing with for some time and now trying to commit to writing. I’m not absolutely positive about it, and it’s a shot in the dark of sorts, but I thought I’d lay out what I’ve got. Hopefully I’m onto something.

Remember this video?

I remember when I first saw it, laughing at the all-too familiar scenario of a yeshiva bachur trying to give over an incredibly problematic dvar torah was relayed by the clipped voices of cartoon bears. “The avos kept the Torah before har sinai? What a dumb idea!” I probably thought. This video seemed to shoot it down and smash it to pieces, rendering it absurd and useless. No reasonable person would ever take the idea that the avos kept the torah before Har Sinai seriously! I mean, come on, look at all the difficulties it raises!
Let’s put it back together, shall we?

The fact is, a lot of reasonable people take the basic idea of the avot’s religious observance seriously enough to not dismiss it out of hand. They redefine “keep”, “Torah”, and “before Har Sinai”, but they do not simply throw it out. I don’t think there is anyone that thinks that the Avot did not adhere to some kind of religious law. Are we supposed to believe that Chazal were idiots, that Rashi never bothered to think about what he was writing, that Avraham ben HaRambam was irrational, that Ibn Ezra took midrashim too seriously, that Rashbam didn’t care about peshat? That would be silly. The idea is part of Jewish tradition, and was clearly seen as something to be grappled with. Why is that so?

So first of all, just philosophically, its a larger question  than might be readily apparent. At the most basic level, If you believe that all of what we do as Jews is fulfilling God’s will, than it becomes problematic to say that the avot did not do the same exact things, and any claim to the contrary needs to be theologically justified. But besides that, other issues are touched on: If the Avot didn’t have Torah, does that mean murder was allowed? Can’t be, right? But then what’s the exact difference between murder and marrying two sisters? So let’s say you answer the former is rational, and the latter isn’t. Does that then mean that there are irrational mitzvot with no reasons behind them? And then it becomes a big nafka mina for the concept of ta’amei hamitzvot. Maybe murder is one of the sheva mitzvot? But so is arayos? And then it becomes a discussion about what the sheva mitzvot are. Maybe the latter was moral before matan torah. But why should morality be changed by revelation? A lot of issues get touched on here.

So let’s start with the key source, a passuk in our parsha:

Bereishis 26:5
עֵקֶב אֲשֶׁר־שָׁמַע אַבְרָהָם בְּקֹלִי וַיִּשְׁמֹר מִשְׁמַרְתִּי מִצְוֹתַי חֻקּוֹתַי וְתוֹרֹתָי:

There are a number of issues: Number one, why the repeated terms? Number two, what mitzvos, chukim, and torah exists before the actual torah? The idea that there was some type of Torah before Har Sinai does not come from nothing, it is actually in the pesukim, and the commentaries must try and figure out what is being referred to here. Each will give an answer that keeps within their own perspective on the philosophical issues being touched upon. Let us start with first, most straightforward explanation, that of Rashbam:

חוקותי ותורותי – לפי עיקר פשוטו כל המצוות הניכרות כגון גזל ועריות וחימוד ודינין והכנסת אורחים, כולם היו נוהגין קודם מתן תורה אלא שנתחדשו ונתפרש[ו] לישראל וכרתו ברית לקיימן.

Rashbam sees the rules referred to here as the basic, rational rules that society needs to function, which includes civil law (theft, courts) and moral strictures (hospitality, sexual morality). In other words, the avot were not lawless anarchists. Those rules were in place before matan torah, but are not dependent on revelation, and then are “renewed and explained” at Matan Torah. This understands the civil and moral law of the Torah as rational and not dependent on revelation, as opposed to ritual law, which is. This seems to be a reasonable reading, but it is not without issues. For one, most of civil law does not pertain to individuals, and the Avot could not have realistically followed the details of dinei nezikin with their neighbors who did not have these laws. They could not have set up courts without having a political entity. Making the claim that the Avot then followed the civil law and morality of their times would solve that issue, but raises its own philosophical questions, and more immediately peshat questions. Why are all the terms possessive, implying they are from God, not from the surrounding society? And why is it impressive that Avraham was a decent citizen?

Next we’ll look at the Ibn Ezra on our passuk:

והחוקים הם חוקות השם שילך האדם אחרי מעשיו כאשר אפרש בפסוק שעטנז (ויקרא יט, יט), ואלה החוקות נטועות בלב, והתורה שמל עצמו, ובניו ועבדיו,ובפסוק והתורה והמצוה (שמות כד, יב) אבארם היטיב

Ibn Ezra sees “Torah” as commands like circumcision, and “chukim” as things that are “implanted in the heart”, and that category seems to be the one that describes what kind of mitzvot Avraham followed. Ibn Ezra then promises that he will explain it by Shatnez. So let’s look at that Ibn Ezra

Ibn Ezra on Vayikra 19:19
וטעם להזכיר אחר אלה המצות בהמתך לא תרביע כלאים – להזהיר אחר היותך קדוש, שלא תעשה חמס לבן אדם כמוך, גם לא תעשה לבהמה לשנות מעשה השם, על כן כתוב את חקתי תשמרו לשמור כל מין שלא יתערב מין עם מין. כלאים שני מינים. ועוד אפרש מלת כלאים, וטעם השדה והבגד להיות לזכרון, כי יש מצות רבות לזכר כחג המצות, וסוכות, וציצית, ושופר, ומזוזה, ותפילין. ופה ארמוז לך סוד, דע כי השלם שלם מאד, על כן כתוב באברהם וישמור משמרתי מצותי חקותי ותורתי

Kilayim and Shatnez, to the Ibn Ezra, are mitzvot that are about being kind to nature and not wanting to mess around with God’s creation, and meant to remind of you of that command.  Just like the mitzvot of Pesach, Sukkot, Tzitzis, Shofar, Mezuzah and Tefillin, are meant to remind you of things. And then it’s a secret, which would then explain the passuk we care about, if we understood it. Thanks a lot, Ibn Ezra. Thankfully, he has a more helpful comment elsewhere.

Ibn Ezra Shemot, 20:2
והדרך הראשון: מצוות שהם נטועות מהשם בלב כל אנשי דעת והם רבים ואין בעשרת הדברים רק השבת לבדה שאינה בכלל שקול הדעת, על כן כל משכיל בכל עם ולשון מודים בהם כי הם נטועים בשקול הדעת. ועליהם אין להוסיף ולא לגרוע. והם ששמר אברהם עם מצוות האחרות נוספות. והשם לא נתן התורה רק לאנשי הדעת. ומי שאין לו דעת אין לו תורה.

This is where he brings it all together. The type of mitzvot that Avraham chiefly performed (which we’ve previously seen are chukim) were the mitzvot that are implanted in man’s heart by way of his reason, which all of humanity agrees upon. That includes 9 out of the 10 commandments, and apparently, kilayim. The Ibn Ezra seems to have an idea which is a slight expansion upon Rashbam’s, in that the Avot kept the commandments that are universal and not dependent upon revelation, but Rashbam limits it to civil law and moral strictures that are immediately obvious as societally necessary. Ibn Ezra includes shatnez and kilayim, trying to fit them under the umbrella of moral strictures, which he is forced to do once he’s defined chukim as rational commandments by the pasuk describing Avraham’s observance. He also includes all of the 10 commandments, which includes the more theological first two commandments. Both of these expand upon the Rashbam’s definition. This may be indicative of Ibn Ezra’s medieval rationalist bias, as he sees many beliefs and mitzvot as rationally self-evident, and thus, any rationally self-evident mitzvot would have had to have been observed by an intelligent person like Avraham.

I think Ibn Ezra is onto something, but I don’t think his idea works as currently iterated. His definition of “chukim” are things that are universally self-evident, but includes things like monotheism, which was definitely not universally self-evident in the times of the avot. And I find it hard to buy the notion that the moral justification of the rules of kilayim is so ironclad its universally self-evident. Additionally, the notion of universally self-evident mitzvot doesn’t work quite well with the possesive “chukotai”. There still is a particularistic element of these words that is being neglected.

But of course, its not the Rashbam or the Ibn Ezra that raises the most problems. It’s the Gemara and its corresponding Rashi in our passuk that causes the most problems. With that, we come to Rav in Yoma 28b:

אמר רב: קיים אברהם אבינו כל התורה כולה, שנאמר יעקב אשר שמע אברהם בקלי וגו’. אמר ליה רב שימי בר חייא לרב: ואימא שבע מצות! – האאיכא נמי מילה. – ואימא שבע מצות ומילה! – אמר ליה: אם כן מצותי ותורתי למה לי? אמר (רב) +מסורת הש”ס: [רבא]+ ואיתימא רב אשי: קיים אברהם אבינו אפילו עירובי תבשילין, שנאמר תורתי – אחת תורה שבכתב ואחת תורה שבעל פה.
Rab said: Our father Abraham kept the whole Torah, as it is said: Because that Abraham hearkened to My voice [kept My charge, My commandments, My statutes, and My laws].21 R. Shimi b. Hiyya said to Rab: Say, perhaps, that this refers to the seven laws?— Surely there was also that of circumcision! Then say that it refers to the seven laws and circumcision [and not to the whole Torah]? — If that were so, why does Scripture say: ‘My commandments and My laws’? Raba or R. Ashi said: Abraham, our father, kept even the law concerning the ‘erub of the dishes,’ as it is said: ‘My Torahs’: one being the written Torah, the other the oral Torah.

So first things first, Chazal were not idiots. Rav did not come to this position to corrupt the text to fit some preconcieved or sinister aims. He is actually trying to solve the textual difficulties of our passuk, as well as the larger question of the nature of the avot’s religious observance. And there is a reasoned debate here: Maybe its only sheva mitzvos? But then what about circumcision, which Avraham was definitely commanded to do? Ok, then sheva mitzvos plus circumcision. Ah, but then what do you do with the extra terms, mitzvotai v’toratai? (I think what the gemara is doing is asking the question we’ve stated, ie, the possesive form and necessarily particularistic connontation of that) Must be that it refers to the written and oral Torah. Thus, Avraham kept the written and oral Torah, “even eruv tavshilin”, which is more than just the sheva mitzvos bnei noach, and is more than the sheva mitzvot bnei noach and circumcision.

Rashi based on this gemara, explains each term used in the passuk individually.

שמע אברהם בקולי – כשנסיתי אותו:
וישמר משמרתי – גזרות להרחקה על אזהרות שבתורה, כגון שניות לעריות ושבות לשבת:
מצותי – דברים שאילו לא נכתבו ראויין הם להצטוות כגון גזל ושפיכות דמים:
חקותי – דברים שיצר הרע ואומות העולם משיבין עליהם כגון אכילת חזיר ולבישת שעטנז שאין טעם בדבר אלא גזירת המלך וחקותיו על עבדיו:
ותורתי – להביא תורה שבעל פה, הלכה למשה מסיני

Thus, Avraham is praised for keeping all aspects of Torah, comprising direct commands, decrees, rational commandments and irrational commandments, and Oral Torah.

Now, such a position seems very difficult, and is the kind of position that would attract the ire of our cartoon bear friend.  How could they have kept the written torah when a lot of mitzvot are based on Yetziat Mitzrayim and other historical events that happen after them? What about all the stories, their own stories, did they know those too? And Oral Torah? They were following takanot issued in response to realities thousands of years in the future? Not to mention the idea, stated by Rashi with no apparent irony, that Avraham was keeping halachot moshe m’sinai before either Moshe or Sinai.  Yet, I don’t think it’s realistic or honest to pretend that Chazal and Rashi didn’t realize any of these issues. At some point, they would have to deal with these questions somehow.

The questions raised above all stem from pretty much two assumptions: That the Torah originates all the laws contained within it, and that the stated reasons, often historical, for the laws in the Torah, are the definitive and only reasons for those mitzvot. By way of example, (which we will use through the rest of this piece) Pesach did not exist before Yetziat Mitzrayim, because we keep Pesach to remember Yetziat Mitzrayim, and thus, when Rashi quotes a Medrash saying that the Yitzchak ate a Korban Pesach, it is problematic. And it so follows that claiming that the Avot kept the whole Torah is absurd and ridiculous.

My contention is that Chazal did not necessarily hold of those assumptions. The fact that they even broached the notion of the Avot keeping the whole torah before Har Sinai shows that they do not make either assumption. They do not assume that mitzvot only existed after Har Sinai, and they do not assume that the reasons for the mitzvot are defined exclusively by those given in the Torah. The Torah was followed in full before Har Sinai, but for different reasons than what we know. Consequently, somehow, Pesach was observed by the avot, but without the historical reasons we are told of by the Torah, because those reasons are not exclusive.

I think such a notion of pre-Sinaitic Torah is not only defensible, it fits better with what we know of the Torah’s historical context.  In the past couple hundred years, we’ve learned a lot about the Ancient Near East and the context of the Torah, and we’ve seen a lot of ideas and laws that are in the Torah that seem to be highly similar to the cultures of their times. This raises a lot of issues as to the divinity and uniqueness of the Torah. If Pesach seems to be patterned after a neighboring springtime agricultural festival, then the notion that God commanded it seems to be weakened. This is the concern that Rav Kook addresses in Eder HaYakar, and what he says is sneakily radical:

“וכן כשבאה האשורולוגיא לעולם, ונקפה את הלבבות, בדמיונים שמצאה, לפי השערותיה הפורחות-באויר, בין תורתנו הקדושה לדברים שבכתבי-היתדות בדעות במוסר ובמעשים. האם הנקיפה הזאת יש לה מוסד שכלי אפילו במעט, וכי אין זה דבר מפורסם שהיה בין הראשונים יודעי דעת אלהים, נביאים, וגדולי הרוח, מתושלח, חנוך, שם ועבר וכיו”ב, וכי אפשר הוא שלא פעלו כלום על בני דורם אף-על-פי שלא הוכרה פעולתם כפעולתו הגדולה של “איתן האזרחי” אברהם אבינו ע”ה, ואיך אפשר שלא יהיה שום רושם כלל בדורותם מהשפעותיהם, והלא הם מוכרחים להיות דומים לעניני תורה. ובענין דימוי המעשים הלא כבר מימות הרמב”ם, ולפניו בדברי חז”ל, מפורסם הדבר שהנבואה מתנהגת עם טבעו של אדם, כי טבעו ונטייתו היא צריכה להתעלות עפ”י ההדרכה האלהית, ש”לא נתנו המצוות אלא לצרף בהן את הבריות” . ע”כ כל הדברים שמצד החנוך שקודם למתן תורה מצאו מקום באומה דבעולם, אם רק היה להם יסוד מוסרי, והיה אפשר להעלותם למעלה מוסרית נצחית ומתפתחת, השאירתם התורה האלהית. ובהשקפה יותר בהירה הוא היסוד הנאמן לההכרה התרברתית הטובה הנמצאת בעמק טבע האדם, באופן ש”זה ספר תולדות אדם” הוא כלל כל התורה כולה, ושהוא עוד כלל יותר גדול מהכלל של ,.ואהבת לרעך כמוך” שכדברי רבי עקיבא .
And similarly, when Assyriology appeared, striking doubts into people’s hearts with the similarities that it found, according to its ethereal conjectures, between our holy Torah and the contents of cuneiform inscriptions, in terms of moral principles and practices.
Do these doubts have even the slightest rational basis? Is it not well known that among the ancients there were people who recognized God, prophets, and spiritual giants, such as Metushelach, Chanokh, Shem and Ever, and the like? Is it possible that they had no influence on their generations? Even if their achievements do not compare with those of Avraham Avinu, how could their influence possibly have left no impression whatsoever upon their generations? Surely [their teachings] must have resembled those of the Torah.
As for the similarity in practices, already in the days of the Rambam and even earlier, in the words of Chazal, it was well-known that prophecy operates in tandem with man’s nature. Man’s natural inclinations must be raised through Divine guidance, for “the mitzvot were given solely for the purpose of refining mankind.” Therefore, those elements of education that preceded the giving of the Torah which had found a place in the nation and the world, so long as they had a moral foundation and could be elevated to an eternal moral height, were left intact in the Divinely-given Torah.
Looking at the matter more broadly, this is the basis of the positive cultural consciousness that is found in the deepest recesses of human nature, such that “This is the book of the generations of man” embraces the entire Torah. It is a principle even greater than the principle of “And you shall love your neighbor as yourself,” as stated by R. Akiva.
All of this should be taken into consideration by every discerning individual. Then there would be no room whatsoever for fraudulent heresy to spread in the world and to be reinforced through such events.”

Let’s unpack Rav Kook’s statement here. Denying the similarities between cuneiform texts and the Torah is not strictly necessary, because such similarities can be ascribed to the influence of pre-Abrahamic prophets, who are thus responsible for the “positive cultural consciousness” that is universal in human nature. Rav Kook is noticing that religion is a universal human phenomenon, accounting for that fact with the notion of pre-Abrahamic prophets, and that consequently there are positive religious impulses that are inherent in the human condition. Thus, the similarity of Near Eastern Culture on the Torah is not treif. On the contrary, those ideas and practices of that culture which had a moral foundation was left in the Torah, building upon the universal religious consciousness and raising it to new heights. So if we find that Pesach seems to be based on a neighboring pagan holiday, it is not proof of the non-divinity of the Torah, but merely the incorporation of a genuine religious impulse into the Torah.

We see a possible precedent for this idea in a medrash on Avodah Zara 8b. The gemara there talks about an 8 day Roman Holiday called “Saturnura”, and offers this fascinating origin story

ת”ר: לפי שראה אדם הראשון יום שמתמעט והולך, אמר: אוי לי, שמא בשביל שסרחתי עולם חשוך בעדי וחוזר לתוהו ובוהו, וזו היא מיתה שנקנסה עלי מן השמים, עמד וישב ח’ ימים בתענית[ובתפלה], כיון שראה תקופת טבת וראה יום שמאריך והולך, אמר: מנהגו של עולם הוא, הלך ועשה שמונה ימים טובים, לשנה האחרת עשאן לאלו ולאלו ימיםטובים, הוא קבעם לשם שמים, והם קבעום לשם עבודת כוכבים.
When Adam HaRishon saw the day getting gradually shorter, he said, “Woe is me, perhaps because I have transgressed [with the Tree of Knowledge], the world around me is being darkened and returned to its state of chaos and confusion; this then is the mode of death to which I have been sentenced from Heaven!’ So he began keeping an eight days’ fast. But as he observed the winter equinox and noted the day getting increasingly longer he said, ‘This is the natural way of the world’, and he took it upon himself to keep an eight days’ yom tov. In the following year he appointed both (the eight days preceding and following the winter solstice – the shortest day of the year) as yomim tovim (plural). Now, he designated them for the sake of Heaven, but they [the idolaters] designated them for the sake of idolatry.

This is an incredibly radical and important medrash. Chazal, by putting Adam HaRishon as the main character, are ascribing the idea of an 8 day winter festival to a universal human religious impulse, inherent in the human condition. Because of Adam’s experience, there is a human need to have an 8 day winter festival, which was at first designated for the sake of heaven, but then taken over by idolatry.  It’s intriguing, how mythic, even pagan, this story sounds, with Adam attempting to deal with the natural cycle, chaos, and his own mortality  with repeated ritual. Even more exciting, this impulse seems to manifest itself in Judaism in the form of Channukah, which is given historical reasons that happen much, much later than this story, obviously. That impulse later found itself a historical manifestation, but that impulse was there the whole time.

So now we can present a possible notion of what it meant for the avot to keep the whole Torah, the Written and Oral. Not only did they keep civil law, or moral strictures, they kept the ritual mitzvot in line with universal religious impulses, ahead of the reasons given in the Torah for them. They kept Pesach, ate matzos, brought korban pesach not in line with the historical reasons given in the Torah, but in line with the inherent human need to consecrate the spring with a ritual festival. Heck, they might have even kept Channukah, based on the Gemara we cited above. They did not have just the civil or moral part of Judaism, they had a fully formed religious system. Maybe that system had different reasons to it. Maybe it looked somewhat different, or had a different focus, less about history and more about Maybe in that iteration of the system marrying two sisters is okay, while in a later iterations it was not. But it was a full, autonomous system.

This is not to say, however, that they were indistinguishable from their Ancient Near East neighbors. The text itself is clear that they viewed themselves as qualitatively different. Our passuk is clear that the laws spoken of do not come exlusively from their surrounding culture, from reason, or from universal religious feeling, but from God. So perhaps, even though their system perhaps seemed more pagan than ours does, there was always something that distinguished the Abrahamite family from its neighbors, something essentially incommensurable with its surrounding society. They had fundamentally different conceptions of theology, law, and morality. This Yosef Ibn Kaspi’s understanding of the notion, laid out in “Tirat Kesef” on Lech Lecha

ואשיב ואומר כי ידוע שמנהג הארץ  ההיא לקחת  איש אחד נשים  רבות, עם  שגם תורתנו התירה זה לעמנו,  ולכן היה מהפלגת קדושת  אברהם,  אע״פ שגדלה תשוקתו לבנים שלא נזדווג רק לאשתו  הנכבדת,  אשר הוא נעזר ממנה לכל עת צורך,  גם לא לשפחותיו הנמצאות אתו  בבית,  ומה טוב מה שאמרו פלוסופי  חכמינו קיים אברהם  כל התורה כלה  (יומא כ״ח), ודי במה שזכרנו  מופת  שהחמיר על עצמו אף במקום שהתירה אותו התורה העתידה להמסר לכלל עם ישורון. והנה ביאר כי אברהם לא בקש זה משרה, אבל שמע לקולה כאשר בקשה זה מאתו, ובכלל זה שלום הבית  ג״כ שהוא עיקר גדול לכל מבקש שלמות .

And I will further say that it is known that the custom of that land was for one man to take many wives, besides that our Torah permits this to our nation. And therefore it was of the great holiness of Avraham that, despite the greatness of his desire for children, he only paired with his honored wife, from whom he received aid at any time of necessity, and not from his maidservants who were found with him in the house.
And how good was that which the philosophers of our Sages said, that Avraham kept the entire Torah (Yoma 28b). And it is sufficient in that which we have mentioned, the exemplar that he was strict upon himself even in a place that which was permitted by the Torah which was to be transmitted over to the populace of the nation of Yeshurun. And behold, it explains that Avraham did not request this of Sarah, but rather that he hearkened to her voice when she requested this of him, and encompassed with this is the peace of the household {shalom habayit}, which is as well an important fundamental to anyone who desires completeness.”

Avraham differed from his society in subtle ways, in the way he ran his household and treated his wife, and that’s what Ibn Kaspi thinks the gemara meant. Avraham’s religion was fundamentally different than his surroundings. Rav Kook has a similar explaination for the Gemara’s choice of Eruv Tavshilin as the primary example of the extent of Avraham’s observance. An Eruv Tavshilin allows one to cook on Yom Tov for Shabbos, and involves differing levels of kedusha, and the ability to distinguish between them. Thus, explains Rav Kook the avot were able to distinguish not just between holy and mundane, but between differing levels of holiness. To tie into my idea, the avot were able to distinguish between their religion and their neighbors’ religion. Even if they may have seemed superficially similar, they labored under fundamentally different assumptions. That’s my theory, and I hope someone thinks it makes sense.


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