from Daas Torah - translation copyrighted
Malbim (Introduction Toras Cohanim): There has been much confusion and concern of scholars throughout the generations about the origin of what we call the Oral Torah. It is clear to all who are familiar with the Jewish texts that the Oral Torah is constantly connected with verses and interpretation from verses. This is the obvious pattern that is found in such works as the Sifre, Sifra and Mechilta as well as the Babylonian Talmud and the Yerushalmi Talmud. However when the meaning of the verses are examined and compared to the lessons that are drawn from them it often seems as if there is no clear and necessary connection between the two. In fact we find in most cases that not only is there no obvious justification for the halachic interpretation which is learned from the verse but that there are times when the verse actually contradicts and opposes the halachic conclusion. In addition in most cases we find strong and sweeping conclusions built upon minor and far-fetched justification. Thus we find major halachic concepts which are established because of a single word or even a single letter – which despite great effort and thorough analysis no necessary justification for these conclusions can be found. And even if you accept that the word or letter is the basis for the halachic understanding, the question arises why other instances of the word or letter are not viewed as having the same significance for other Halachos? In addition we find at times that a particular analysis of a verse is done in one place but in other places that the word is interpreted to imply just the opposite. Thus it seems to be that the interpretations are totally dependent on the whim of the moment and that matters of substance are justified by trivialities. When we ask how this issue was understood by the scholars of the ancient times we see that they said that the words of the verse which are brought as proof for the halacha are simply arbitrary signs and mnemonic devices which were selected in order to aid recall of the halacha. In fact these ancient Torah scholars claimed that halacha was not learned from textual analyses but were known from oral tradition. However this answer seems very far-fetched because we see that Chazal were always asking where a particular halacha was learned from and they always answered with specific Torah verses. And there often was a dispute with one saying that verse was incorrect and a different one was the source. The typical interchange involved attempts by all parties to justify their verse and to show that the verse and proofs chosen by others was wrong. It makes no sense that Chazal would engage in such intensive arguments concerning something which was merely an allusion or mnemonic device!.. It is clear therefore that the verses are in fact the sources of the halacha and are not mere mnemonic devices. In fact the Rambam (Introduction to Mishna) distinguishes between those Halachos which are not derived from verses which he calls Halacha LeMoshe and between those halacha which are derived from verses. These two categories are different from each other for a number of reasons… The Rambam counts the halachos which are Halacha LeMoshe and shows that they are few. The vast majority of Halachos are in fact learned from Torah verses and grounded in them. Thus these two explanations of halacha being learned from Tradition and being learned from verses are simply incompatible. This matter is not only astonishing to the masses but Jewish heretics utilize this contradiction to cause difficulties and to undermine the validity of our Tradition. However even amongst scholars it causes severe difficulties because they end up with two opposing paradigms which they are constantly switching between. Sometimes they focus on the language of the verses and the interpretation of drash is viewed as external and artificial. But other times they are drawn after the drash and Tradition and argue with those who focus on the rules of syntax and understanding of the verses. Thus there is a constant fight of the brothers - the meaning of the verse and the drash. Both sides murmur in their tents and there is no reconciliation….