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Can Later Rabbinic Creativity Transcend its Origins: Moshe v. Akiva in the Talmud

The story presented in TB Menahot portrays God adding crowns to the Torah, which Moshe cannot understand but Akiva will
Noam Zion is a Senior Fellow Emeritus of the Kogod Research Center at the Shalom Hartman Institute since 1978. He studied philosophy and holds degrees from Columbia University and the Hebrew University in Jerusalem. He studied bible and rabbinics at the Jewish Theological Seminary of America and the Hartman Beit Midrash. In the past, he led the Tichon program for North American Jewish educators and he teaches in Hartman Institute rabbinic programs: the Be’eri program

In the Babylonian Talmud Tractate Menachot 29b, Moshe is at Mount Sinai traveling into the future to see Akiva, the student of Yehoshua, explaining the Torah of Moshe in such creative ways that it is unrecognizable to Moshe. Moshe is unable to sit in the first seven rows of the recognized students of Torah (who sit in order like the first and second violin in an orchestra). He is unable to understand the Torah but he knows God intended that it be interpreted creatively in that way. Perhaps the gap is created by history – a different Torah in a different generation. Perhaps it is caused by Akiva’s creativity, which could never be predicted by Moshe or by Akiva’s acumen in uncovering hidden meanings in the crowns on the letters.
This is a self-conscious moment of extreme discontinuity when Torah might seem to have lost its mooring in the historic Torah of Moshe or the Divine Torah of God. Yet Moshe is reassured of continuity when Akiva credits the “new” Torah to Moshe. God assures us that every comment that a student of Torah will in the future make is already somehow encompassed in the original revelation at Sinai. The story presented in TB Menahot portrays God adding crowns to the Torah, which Moshe cannot understand but Akiva will. Its message promises us that interpretation is creatively rooted in Torah but that its trajectory is unchartable and that it will go far beyond what Moshe himself in the original revelation could have ever understood. Thus meaningless textual decorations are a resource for creating many new laws. But at least Moshe gets credit for “Halacha l’Moshe miSinai.” This interpretive boldness may be related somehow to Akiva’s tragic end. Perhaps it is the same boldness in trying to force God’s hand in the Bar Kochba Revolt. Still the Hillelite conclusion is that his method is unimpeachable, his interpretative chutzpa is identified with the crown of Torah that makes him higher than Moshe, as Moshe himself admits in awe.
Moses in Akiva’s academy
The story of the mysterious crowns on the letters in the Torah explores the relation between the Written and Oral Law in terms of an imaginary “back to the future” encounter between Moses and Akiva, their respective representatives. Among the Rabbis, Akiva’s hermeneutics were distinguished by his bold departure from the semantics of the biblical text. His midrashic expositions, which often rely on a single letter, are represented here–somewhat hyperbolically–as focusing on the decorative coronets of the letters in the handwritten Torah scroll, and even on these coronets’ individual horns.
Rav Judah said, citing Rav:
When Moshe ascended to heaven [to receive the Torah] he found the Holy One sitting and fashioning coronets for the letters.
[Moshe] said to Him: "Master of the world, who requires you [to do this]?"
[God] replied: "There is a person who will come to be after many generations, called Akiva ben Yosef; he will one day expound heaps upon heaps of laws from each and every horn."
[Moshe] said before God: "Master of the world, show him to me."
[God] replied: "Turn around." He turned around and [found himself] behind the eighth row [in the Talmudic academy–behind the regular students arranged in order of excellence in the first seven rows]. Moses did not understand the discussion and was dazed. When [Akiva] came to a certain point, his students asked him "Whence do you know this?" Akiva replied, "[This is] a law [given] to Moses from Sinai." (Halacha l’Moshe miSinai).
Then Moses was calmed.
But Moshe turned back and stepped before the Holy One and said: "Master of the world, You have such a person, yet You give the Torah through me?"
God replied: "Be still, that is how it entered my mind."
Then Moshe said: "Master of the world, you have shown me his Torah; show me his reward."
God said: "Turn around." He turned around and saw Akiva’s flesh being weighed in a butcher shop. 8
Moshe exclaimed:"Master of the world, such Torah and such a reward?"
God replied: "Be still, that is how it entered my mind." (TB Menachot 29b) 
TB Menachot 29b teaches a view of Torah radically different than that of Eliezer’s fixed traditions preserved but never added to, through a fantastic but literal memory. Akiva’s Torah is broader than its literal meaning. Here human beings are active in creating new Torah through midrash mandated by God; here human beings are liberated from the fear of violating God’s word or from the fear of hubris lest they challenge the Moshe the founding father’s great wisdom or Moshe’s historical closeness to the original revelation. The principle of Torah study is Hidush through human midrash rather than masoret through repetition and memory of the given. Humans are co-creators of the Torah, not merely interpreters in the usual sense of those subject to the dictates of the text explicated.
The Netziv Naftali Tzvi Berlin explains the transition from the traditionalist to the innovative midrashic approach to the Torah as parallel to the transition from the first tablets at Sinai written by God to the second ones written by Moshe:
"In the first tablets there was no gift of Hidush at all but Torah was whatever Moshe heard with its basis in the Written Torah. Moshe did not know how to make his own Hidush except to think analogically but without creative pilpul. But in the second tablets the power of hidush was granted to innovate new halachot in every generation. That is the meaning of the Rabbinic phrase that ‘everything that a veteran student of Torah will in the future innovate is already given at Sinai.’ The power to innovate, not the content, is given. (HaEmek Davar Dt 4:14).
“The reason God ordered Moshe to carve the second tablets was not because they were not worthy of a Divine act but to teach that the ever-renewing power of halacha given in the second tablets involves the active participation of the labor of human beings who with Divine aid, just as the second tablets were carved by Moshe and the writing was by God.” (HaEmek Davar Exodus 34:1).
"The fact that Akiva could come up with an alternative understanding of Torah that even Moshe could not understand, let alone critique, shows that even the greatest scholars must be skeptical of their own interpretations. Therefore the Netziv maintains that, halachic research is like scientific research.
“Scientific scholars can not claim in their hearts that they have understood all the secrets of nature…In fact, they cannot be sure that their own research is true since they have no clear test. A later individual or generation can through research contradict the previous scientific construction. So too researchers into the nature of Torah cannot claim to have considered all the changes and all that requires thought. There is no certainty that what they have explained is the true intention of the Torah. So all we can do is do our best with what we have.” (HaEmek Davar, Introduction, section 5). 
Therefore even codes of law like the Shulchan Aruch are not the final word. Rav Haim Volozhin quotes the Gaon of Vilna saying: 
“In Torah do not respect persons [that is a judge is forbidden to give preferential treatment to a someone being judged in the court even if they are rich or important. Justice must be blind to persons]. That applies even in respect to the authors of the Shulchan Aruch, when it comes to teaching or even deciding the law.” 
The Hazon Ish, Avaraham Yeshaya Karletz, maintains, “that even though we follow the Shulchan Aruch, we still deviate from it in light of later scholars of our generation when they bring solid proofs…. For the halacha always follows wisdom.” Rav Yaacov Emden: “I heard from my teacher that one is not authorized to make halachic decisions until they have the power to uproot and erase a section of the Shulchan Aruch.”
This self-conscious power of the Rabbis to transcend and even uproot the original meaning of the Torah goes back for the great Lithuanian tradition back to the Babylonia.
TB Makkot 22a-b
Mishnah: How many lashes are administered? Forty less one [i.e, thirty-nine], as written: “. . . by number. Forty [stripes he may give him]" 13 (Deut. 25:2-3)–a number leading up to forty. Rabbi Yehudah says: He is given full forty lashes . . .
Gemara: What is the reason [for this reading]? If it had been written "forty by number," then I would say: a count of forty. Now that it is written, "by number forty"–[this means] a count that leads up to forty.
Said Rava: How foolish are all those people, who rise before a Torah scroll but fail to rise before a great man [i.e., a scholar]! For in the Torah scroll it is written "forty," and the rabbis came along and subtracted one. 
Loyalty to what they have learned
As aforementioned, Rabbi Eliezer identifies himself with a plastered cistern that never loses a drop and he prides himself on neither forgetting nor adding anything to he chain of tradition. On his deathbed he says:  
“Much Torah have I learned and much Torah I taught. I have not taken [or lost?] anything from me more than a dog who licks from the sea. Much Torah I taught and yet my students have not taken [or lost?] from me more than a brush from an eye paint container.” (TB Sanhedrin 68a, Avot dRabbi Natan A 25)
Rabbi Yehoshua says: It is impossible to hold a session of a Beit Midrash without an innovation (Hiddush) (Tosefta Sotah 7:9)
Rabban Yochanan ben Zakai said: Eliezer, teach us one thing from the words of the wise.
Eliezer demurred saying: Let me give you a parable. To what may I be compared? To a cistern (bor) that cannot produce more water than was put in it.
Rabban Yochanan ben Zakai replied: Let me give you a parable. To what may you be compared?
To a spring (be’er). Just as when it begins to flow it produces water from its own sources, so you can teach words of Torah more than were conveyed to Moshe at Sinai. (Avot d Rabbi Natan, Version B, 13). 
Rabbi Akiva prefers the model of a spring (like Elazar ben Arach) to a plastered cistern (like Rabbi Eliezer):
Rabbi Akiva says: “Drink water from your cistern (bor)” (Proverbs 5:15) means that your cistern is intially incapable of producing from itself even a drop of water more than what it already contains. Thus initially a student has nothing more inside than what has been learned.
"Flowing from your spring (be’er)" (Proverbs 5:15) means [you become] similar to a be’er. Just as a spring overflows with living water on all sides, so your students will come and learn from you. This is a realization of the verse "spread forth your wellsprings" (Proverbs 5:16). (Sifrei Dvarim 48) 

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