In this answer I am not going to attempt to relate to your specific question on the Mishnah in Makos 22b, but rather I am going to make a few general comments about the way the Mishnah was written.

1. First, it is very important to realize how crucial the knowledge of the Mishnah is to Torah scholarship. This is illustrated by the Gemara in Ta'anis (21a) where Rebbi Yochanan boasted that he could find a source in the Mishnah for anything stated in a Beraisa and that if anyone could stump him he would jump off the mast of a boat. One sees from this that the Mishnah encompasses and includes all of the Halachah, and thus it is clear that it was of the upmost important to know the Mishnah extremely thoroughly.

2. In order to be able to remember the Mishnayos, the scholars in the time of the Gemara used some interesting methods. The Gemara in Megilah (32a) speaks negatively about one who learns the Mishnah without using a tune. Tosafos there (DH veha'Shoneh) writes that the reason why in those times they used to sing the Mishnah was that they learned entirely by heart (since it was only in the time of Rebbi Yehudah ha'Nasi that the prohibition against committing the Oral Torah to writing was lifted), and learning the Mishnah with melodies facilitated memorization.

3. The Tiferes Yisrael in Erchin (ch. 4, Boaz #1) presents a novel explanation for a phrase mentioned occasionally in the Gemara (see, for example, Beitzah 24a): "Learn your Gemara, and it will be a tune for you." This means that they possesed a special tune for each Mishnah in order to enable them to remember the Mishanyos better. The Tiferes Yisrael writes that sometimes the Mishnah was written in a way that was slightly different to what it logically should have read, if this way made it easier to remember by heart. One should realize that in those times they were closer to a true understanding of each Mishnah since they possessed a superior tradition than ours, because, as you wrote, they were closer to the source at Har Sinai. The more difficult problem then was to remember the Mishnah by heart. Consequently, the words of the Mishnah were changed slightly to make it flow better, and even though this made the meaning somewhat less clear, this did not bother them because they knew how to understand the subject matter. This is why the Gemara sometimes says that a word or words are missing from the Mishnah. This may also explain why the Gemara sometimes gives seemingly forced answers in order to maintain the understanding of the Mishnah. The Chachamim knew that the most important thing was not the literal words, but rather understanding the Mishnah and its meaning and remembering it, and passing it on to future generations.

Kesivah v'Chasimah Tovah,

Dovid Bloom

Shalom, Harvey! You want to know why the Torah does not say exactly what it means. Indeed, the words of the Torah sometimes seem positively misleading, as in the case of our Sugya, "Arba'im Yakenu" (where the Torah prescribes 40 lashes while the Mishnah tells us that we only give 39).

(a) You must know that the Torah is not a Kitzur Shulchan Aruch. It cannot be read or interpreted as an independent entity, without the Torah she'Be'al Peh. This is what Hillel meant to teach the would-be Ger in Shabbos 31a. (As you remember, Hillel prevailed upon the Ger to accept the Oral Torah by first teaching him the Aleph-Beis in the correct order and then, on the following day, reversing the order. When the Ger queried him about it, Hillel replied that he wanted to demonstrate that even with regard to the Written Torah, the Ger had no choice but to rely on others for its accurate reading. If so, why should he not rely on the Oral Torah's interpretation of the Written Torah as well?) Thus, it is quite impossible for us to establish the Mitzvos without the assistance and the directions of the Torah she'Be'al Peh.

This point is made forcefully by the Midrash on Shir ha'Shirim 1:2 (on the verse Ki Tovim Dodecha mi'Yayin). The Midrash explains that "wine" refers to the written Torah (see the explanation for this in Torah Temimah, note #21). Dodecho (your display of love) represents the Torah she'Bbe'al Peh. The verse is saying that the latter are superior to the former. The Gemara makes a similar point in Avodah Zarah 35a, where the same verse is interpreted as "Hash-m endears the words of the Rabbis (Divrei Sofrim) even more than the 'wine' of the Torah itself."

(b) Nonetheless, Chazal always endeavor to justify the interpretations of Torah she'Be'al Peh and reconcile them with Torah she'Bichsav either by way of Asmachta, the rules of Dikduk, or some similar cogent determining factor. Thus, in the case of the 39 lashes, they connected the last words of the previous verse (Devarim 25:2), "Kedei Rish'aso b'Mispar," with the word "Arba'im." The verse now reads that he should be lashed according to his wickedness by the number leading up to 40. Here, too, see the note in Torah Teminah (#19) for a beautiful and logical explanation of why this must be the true reading of the verse.

(c) The reason that the Torah operates in this way could be for a number of reasons.

1. Firstly, through this method, Chazal can derive a number of distinct Halachos from the brief rendition of the Torah she'Bichsav. Chazal interpret the verse through the 13 Midos of Tana d'Vei Rebbi Yishmael and by proximity, juxtaposition, choice of words, Chaser v'Yeser, Vav Lerabos and all the other multifarious methodologies of Torah exegesis. To take just one minor example, see how many Halachos are derived from the verse in Kedoshim of "Lo Sochlu Al ha'Dam" (see Sanhedrin 63a).

2. A second reason may be to ensure that we take an ethical perspective. In the case of the 39 lashes, the number 40 that the Torah uses connotes the entire essence of the Torah, which this sinner has wantonly desecrated. (The number 40 represents Torah because it was given in 40 days and 40 nights. In addition, the Mishnah begins and ends with the letter Mem, which has a numerical value of 40; Moshe, Hillel, Rebbi Yochanan ben Zakai and Rebbi Akiva all lived 3 times 40 years according to Sifri Devarim 34:7. From numerous sources it is clear that 40 represents Sheleimus ha'Torah.)

A similar point may be make about the issue of "Ayin Tachas Ayin" (lex talionis), which Chazal re-interpret conclusively as referring to monetary compensation. Perhaps the Torah wishes to teach that although in practice only money can be taken as compensation, nonetheless, ethically the perpetrator deserves much more serious treatment.

3. Thirdly, the Torah wants it to be clear that the final arbiters of Pesak Halachah are Chazal. Thus we find in Bava Metzia 59b, in the famous debate over Tanur Shel Achna'i, Rebbe Yehoshua exclaims, "Lo ba'Shamayim Hi!", and Hash-m smiles in approval and says, "My children have beaten me, My children have beaten me!" Some explain the duplication of this expression to emphasize its comprehensivity; it is referring to both Torah she'Bichsav and she'Be'al Peh.

This, too, is the intention of Rava in Makos 22b when he says, "How foolish are the majority of people who stand up for a Sefer Torah, but not for a big Talmid Chacham! The Torah provided for 40 (lashes) and the Rabbanim reduced it by one." See also the words of the Ran in Kidushin 33b (who reconciles an apparent contradiction between the Gemara here and in Kidushin). Interpreting the above-quoted Gemara, the Ran makes the important observation that "had it not been for [the interpretations of] the Rabanan, the Torah would be left closed and unused."

(d) In conclusion, we can readily understand the need for the brevity of the Torah she'Bichsav and its choice of terminology. It can only be learned hand in hand with Torah she'Be'al Peh, for the three reasons set out above.

This is patently obvious in Mitzvos such as Tefilin, Mezuzah, Shechitah etc., (where the description of the Mitzvah is left entirely to Torah she'Be'al Peh). But it should be taken as equally obvious in respect of the other Mitzvos, even those that are described a little more fully in the Torah. The same applies to the apparent sins of the Torah leaders described in Tanach. We cannot simply accept them on an absolutely liberal basis. (The interpretation of Midrashic material is also not to be taken literally in all cases - but that is an issue for another occasion.)

The Torah is not in any way misleading - provided that one learns it properly, in the prescribed manner, with the constant and permanent assistance of our revered Chazal.

Rabbi Joseph Pearlman

London, England

Thank you very much for your useful and well-informed comments on what I wrote.

1. It seems that the whole question whether or not Rebbe Yehuda HaNasi wrote the Mishna is in fact a dipute between the Rishonim. Rabbi Shmuel HaNagid, in his Introduction to the Talmud which is printed at the end of Maseches Berachos in the standard editions of the Gemara, page 86, writes that R. Yehuda HaNasi wrote the Mishna in order that it should remain for a long time, and should not become forgotten from the hearts of its readers and become lost.

(2) The Rambam, in his introduction to Mishneh Torah, also writes that R. Yehuda Hanasi wrote down the Mishnah. The Rambam writes that from the days of Moshe Rabeinu until Rabeinu Hakodosh, no work was composed on the Oral Law which was taught orally in public. Instead, in every generation the Head of the Beis Din ,or the Prophet of that generation would write down for himself what he had heard from his teachers, and would teach this orally in public. This continued until the time of Rabeinu Hakodosh, who collected together all the teachings and Dinim and explanations that had been heard from Moshe Rabeinu and had been taught in every generation by the Beis Din on the entire Torah. Rebbe composed from all of this the Book of the Mishnah. He taught it to students in public and it became revealed to the whole of Yisroel and everyone wrote it down and disemminated it universally so that the Oral Law should not be forgotten from Yisroel.

(3) However Rashi seems to disagree with the above. The Gemara in Eruvin 62b reports that a reference was made to Abaye about Megilas Ta'anis. Rashi DH Kegon writes that the reason the Gemara refers to Megilas Ta'anis is because in those days not even one letter of Halacha was written down with the exception of Megilas Ta'anis, and this is why it was called a scroll. In addition the Gemara in Bava Metzia 85b relates that Rabbi Chanina said that he was capable of preventing the Torah from being forgotten by Yisroel and one of the ways he would do this would be to teach 6 different children orally one Order of the 6 orders of the Mishnah. Maharatz Chayes there writes that in the time of Rav Chiya (who was after Rebbe, of course) one was not yet permitted to write the Mishnah as even in the time of Abaye one was not permitted to write it. He also cites the Intduction to the Smag that you mentioned, that it was only after the completion of the Talmud that one was allowed to write the Mishnah. (See also Maharatz Chayus to Megilah 7a.)

4. So the question now seems to be: does the opinion of Tosfos follow that of Rashi, that in the time of Rebbi one was not yet allowed to write down Torah she'Ba'al Peh, or does Tosfos follow the Rambam's opinion that one could aready write it down? Apart from your suggestion that Tosfos in Megilah (32a) appears to maintain that one could not yet write down Torah, I would like to point out another possible source. See Gitin 77b, where Tosfos (DH v'Teizel) cites Rashi that a Get is Muktzeh on Shabbos. The Beis Yosef (EH 136) in Bedek ha'Bayis (also cited there by the Beis Shmuel #8) asks that since the episode in the Gemara there took place in the time of Rava when it was already permitted to wrote down Halachos, why could one not learn Halachos of the Get by reading the Get, and therefore this should mean that the Get is not Muktzeh? One sees from the Beis Yosef's question that he agrees with the Rambam that in the time of Rebbe one could already write down Torah. However the answer to the Beis Yosef's question is that Tosfos agrees with Rashi that even in the time of Rava on was not yet permitted to write Torah.

5. There is still quite a lot to write on this subject, but I want to get this sent off before the holidays, and I hope we can come back to this later.

6. I would like to add that the whole issue of whether or not Rebbe wrote the Mishnah is obviously a very large one but I am just going to make one or two further points and attempt to relate to one or two sources that you cited and which I did not have time to touch on in my first reply.

(a) You mention the common idiom in Shas "Tani tanna lamei deR' ". However I would refer you to the sefer Halichos Olam, which was wriiten in the 15th century, I believe, and deals with principles and rules of Shas (In fact Rabbi Yosef Karo who lived shortly after this sefer was written, wrote a commentary on it).

Halichos Olam [Gate 2 chapter 1 paragraph 21] writes that the phrase"Tani tanna..." refers to an Amora reporting a Beraisa for which he had received a tradition from his teacher. Since not everyone was familiar with the Beraisos (see for instance Shabbos 19b "He had not heard the beraisa") the Amoraim would often report Beraisos they had learnt.

It is clear however from Halichos Olam that the phrase "Tani tanna ..." only refers to Beraisos which were not well-known, being publicised by Amoraim but on the contrary the Mishnah was well-known by everyone and it was not necessary to disseminate them.

(b) It is not clear to me what you are trying to prove with Rabbeinu Chananel cited by Rabeinu Bachaye on Bereshis 18:19. R' Chananel says that just as the words of the Ovos - our forefathers - were a binding tradition even though they were not written in the Torah, so we must observe the words of the mishnah even though they were notr written down, because the power of the teachings is not dependent on whether they are written or oral.

The above teaching is clearly a major principle of Jewish belief but it does not touch on the issue of exactly in what period of history the Mishnah was committed to writing. Everyone agrees that at one time the Mishnah was exclusively oral and everyone agrees that at some point permission was given to write it down,but the question in hand is at exactly which point was that. However what R' Chananel is teaching is that even though the origin of the teachings of the Mishnah was clearly oral, this does not take away an ounce from their importance.

(c) You imply in your argument that since the Gemara in Gitin 60a discusses oral teachings which were permitted in extenuating circumstances to be written down, but the Gemara does not mention that this is what happened with the Mishna itself, this suggests that the Mishnah was only committed to writing after the period of the Talmud as argued in the introduction to the Smag.

However it is clear that the Tosfos Rid, printed on the margin of the Gemara at the very end of Gitin 60a, does not agree with this argument. He writes that in the same way that the Chachomim permitted writing Torah, as reported in the Gemara because of "A time to act for Hashem" so too did Rebbe rely on this in order to write down the Mishnah and afterwards the Beraisos wre written down and Ravina and Rav Ashi worte the Talmud and so do the Sages of every generation write their commentaries. Tosfos Rid appears to be consistent with the opinion of the Ramabam, that I cited in my first reply, that R. Yehudah the Prince did in fact write down the Mishnah.

Well, as I say, one could write a lot more abut this subject but that will have to suffice for now.

Wishing you a healthy winter.

KOL TUV

Dovid Bloom