Since Mosheh received the Torah in the Sinai, the Torah has evolved. It evolved according to the rules set out in the Torah itself, but still, halakhah has grown, courts of greater number and wisdom have overruled the precedent of inferior courts, etc… As the famous story goes (Menachos 29b):
When Mosheh ascended to the Heavens, he found Haqadosh barukh Hu (HQBH) sitting and tying crowns onto the letters [in the Torah]. He said before Him, “Ribono shel olam — Master of the universe! What could compel You (lit: who holds back Your ‘hand’) [to do this]?”
He answered him, “There will be a man in the future after many generations and Aqiva ben Yosef will be his name. In the future, he will clarify every point and mounds of law [from them].”
He said before Him, “Ribbono shel olam, show him to me.”
He told him, “Turn around.”
He turned around and went and sat at the back of eight benches [at Rabbi Aqiva's academy]. When Moshe had no idea what they were discussing, he became distressed until the students asked, “Rebbe, from where do you learn that?”
Rebbe Akiva answered them, “It is a halakhah that goes back to Moshe from Sinai.”
At that time, [Moshe's] mind became settled, and he returned to HQBH.
He said before Him, “Ribbono shel olam, You have one such as he and You wish to give the Torah through me?!” He answered him, “Silence! This is what occurred before Me!”
He said before Him, “Ribbono shel olam, You showed me his Torah, now show me his reward!”
He told him, “Turn around.”
He turned around and saw them weighing his flesh in the market place, and he said before Him [in horror], “Ribbono shel olam! This is Torah and this is its reward?!”
He answered him, “Silence! This is what occurred before Me!”
(Side note, the comment about deriving “mounds of laws” from the serifs and crowns on the letters probably has something to do with the difference between Rabbi Aqiva’s school of derashah (derivation from the Torah) and Rabbi Yishma’el’s. See my earlier blog entry on this subject. In short, there is a theory that Rabbi Aqiva’s school (from which we have Rabbi Meir and Rabbi Yehudah haNasi, and thus the mishnah) saw derashah as being about syntax. Rabbi Yishma’el is the one who coined the idiom “the Toreah speaks in the language of man”, and it’s unsurprising that his rules of derashah focus on semantics. Rabbi Aqiva’s school literally derived “mounds of halakhos” from the presence of specific words and letters in the Torah.)
Note that although Mosheh Rabbeinu didn’t know this law outright, Rabbi Aqiva said it comes from him. Many rishonim take this to mean that it derived from Mosheh’s teaching. (A notable exception is Rashi, who says that it was simply a law Mosheh learned later, after receiving this vision.)
With the power to evolve comes the possibility that in different communities and schools of thought it halakhah evolves in different ways. And so, “These and those are the words of the ‘Living’ G-d, but the halakhah is according to Beis Hillel.” As we lived together, to coexist the Sanhedrin found consensus, and since then we have other means of reaching uniform ruling on issues that become contentious or pragmatically impact Jewish unity. (Such as laws of conversion, marriage and divorce.)
Picture how life was for the typical person in the days of the first Beis haMiqdash. Land was divided once, by sheivet and beis avos (tribe and clan). When, Yehoshua’s generation passed away, it inherited by their children, and then again by their children, etc… Women moved off to their husband’s beis av, but for men — you lived next door to your brother, two doors down from your uncle, and most of your other neighbors were relatives. The sole exceptions being tenants of your relatives.
I think much of what drives the Torah’s laws of inheritance is Hashem’s desire for each sheivet to have a distinct derekh avodah, and each beis av to have its own subspecies. Without that, there is little rationale for choosing one gender over the other, and from Chazal until today we find ways to avoid being obligated to do so.
In fact, most questions must not have gone forward to the central beis din in Yerushalayim, the Sanhedrin. Each sheivet had their own judicial system as well, and their own high court. Israel was much bigger then than once the Greeks and Romans brought more modern means of harnessing, modern roads, etc… There was opportunity for much greater variety of opinions than those of Beis Shammai and Beis Hillel. Each sheivet had the opportunity to forge very distinct implementations of the covenant of Sinai. Each evolved according to the rules of halakhah, (in addition to the idolatrous and irreligious amongst us) and therefore all within the covenant, all of them “the words of the living G-d”, but with much less frequent need to impose “but the law is according to…”
The 12 nesi’im, the heads of the tribes, each gave the same gift for the inauguration of the Mishkan. And yet, for each day the Torah lists the items in the gift again, repeating the same text (or nearly so) twelve times. (Bamidbar 7:12-83) The Ramban explains that even though the items given were identical, a silver platter, a silver sprinking bowel, fine flower mixed with oil, a gold pan, a bull, a ram, a lamb, a goat, and shelamim offerings, the intent was distinct. And he goes through the gift of each nasi, explaining how he related it to his own tribe’s history, talents, and culture.
It’s mind-stretching to think how different their expressions of Torah would be. Perhaps they would even seem like different religions.
We are called Yehudim, Jews, because we are the descendents of the Kingdom of Judea, a population numerically dominated by members of the tribes of Judah. The first time we find the word “Yehudi” is in the megillah, describing Mordechai, “A Yehudi man was in Shushan, and his name — Mordechai the son of Ya’ir the son of Shim’i, a descendent of Kish, a Benjaminite.” Of all of the expressions of the covenant, only Judah’s survived. Just as within that tradition, we usually follow Beis Hillel over Beis Shammai. Rabbi Aqiva’s position is not the only one Mosheh Rabbeinu could see as a child of his own.
Yissachar was well known for their Torah study; despite living in the more idolatrous northern kingdom. I sometimes wonder what Isaacarism would have been like, as opposed to Judaism. Yehudah was more open to contemporary society. That’s how they merited to rule — they were known for he ability to admit wrongdoing (such as the story of Judah and Tamar, or David and Bethsheba), were spiritually committed, and were in touch with the facts on the ground. Yisachar were more isolected. Supporting their sheivet was a project of the sheivet of Zevulun, who tended to be seafaring traders and dye-makers. (Zevulun had a monopoly on techeiles for tzitzis and kohanic uniforms, as well as royal purple — both made from sea creatures.) A common model invoked for contemporary kollel is called “a Yissachar – Zevulun arrangement” for this reason. Would Isaacarism necessarily be ascetic, a religion of hermits and nezirim, with many gezeiros fencing in our physical desires from any taint of prohibition? Or is that too much speculation on too little data?
It’s interesting that the word for a halachic decision is a pesaq, a word meaning a break or an interruption. To pasqen is not to find a new position as much as to narrow down the set of permissable halachic rulings.
What is Judaism? Only one of the many possible expressions of the covenant of Sinai. Through the laws of halachic evolution and the forces of history, the only such expression that is still valid. But not the only one that could have been. Had we evolved differently as a people, the expression of the Torah that would address who we are would have been different as well.