Torah – did the patriarchs (Avos) keep the Torah?

This week we celebrate not only our receiving of the Torah at Har Sinai, but also the culmination of the creation of Klal Yisroel as Hashem’s chosen people. At this time, Hashem made a new covenant with us, which the Rambam (Issurei Bi’ah 13:1-4) likens to the conversion of non-Jews in our time.

“Yisroel entered the covenant with three things,” he writes. “With bris, immersion in a mikveh, and with a sacrifice. And so for future generations, when a non-Jew wishes to enter the covenant and shelter under the wings of the Divine Presence and receive the yoke of Torah upon himself, he requires milah, immersion, and the acceptance of a sacrifice.”


This implies that at Sinai the Jewish people not only received the Torah, but also achieved a higher status of “Jewishness” than they had ever had beforehand.

But what were they lacking until now? Since Chazal in Yuma (28b) tell us that Avrohom Avinu already observed the Torah hundreds of years previously, what did this new conversion add that the Jewish people did not have beforehand?

In the first section of his sefer, Proshas Derachim, Rav Yehuda Rozanes (author of Mishneh Lemelech on the Rambam), investigates this question, poses a number of alternatives, and reaches no firm conclusions. Although dozens of episodes in the Chumash touch tantalizingly on this theme, there are usually many ways of explaining what happened. Ultimately, the Proshas Derachim does not pin down exactly what the Jews lacked before their ultimate conversion at Sinai, yet he offers some interesting points to ponder.

He begins by pointing out a number of differences that may have existed in the status of Klal Yisroel before and after the covenant at Sinai.

First, when the Avos began keeping the Torah, does this mean that they totally divested their non-Jewish status and were permitted to observe Torah
law even when this led to leniencies, or were they careful to only keep Torah law when it was not in conflict with the seven commandments of Bnei Noach? Secondly, when the Avos kept the Torah, was their observance purely voluntary, or were they punished for non-compliance? Third, as a corollary to the second question, when the Avos fulfilled mitzvos, did Hashem give them the large reward that accrues to someone who is commanded to fulfill a mitzvah (metzuveh ve’oseh), or did He only give them the smaller reward of someone who fulfills a mitzvah voluntarily (eino metzuveh ve’oseh)?

The Proshas Derachim researches a number of episodes in Bereishis and Shemos, examining how they relate to these questions.

He attempts to prove that Avrohom Avinu lost his non-Jewish status from the time Nevuchadnetzer threw him into a fiery furnace unless he recanted his beliefs. Now, if Avrohom had retained the partial status of a non- Jew and still observed their seven commands lechumra, how could he allow himself to be thrown into a fiery furnace al kiddush Hashem? The Gemara (Sanhedrin 74b) explicitly states that non-Jews are not commanded to die in sanctification of Hashem’s name, and the Rambam (Yesodei HaTorah 5:4) rules that a person who dies unnecessarily al kiddush Hashem is regarded a suicide! Yet Hashem miraculously saved Avrohom from the flames, indicating that Avrohom had made the correct choice.

The Proshas Derachim writes that it is easy to refute this proof, since the Medrash (Bereishis Raba parsha 63:2) indicates the very opposite: “Rabbi Shmuel bar Rav Yitzchok said, Avrohom was only saved from the fiery furnace in the merit of Yaakov.” This implies that Hashem saved Avrohom from the flames not in his own merit, but in the merit of Yaakov. So one could maintain that it may have been wrong of Avrohom to sacrifice himself al kiddush Hashem.


However, later incidences in Bereishis do indicate that the Avos kept the Torah even when this led to leniencies.

The Medrash Rabba (Shemosparsha 93:5) says that when Yosef threatened to imprison Binyomin for stealing his goblet, Yehuda retorted that this would be unjust since, “In our laws it is written (Shemos 22:2), ‘If he has not [to repay], he is sold for his theft,’ but this person [Binyomin] has with which to pay!’”

In other words, Yehuda was arguing that Yosef should judge Binyomin according to the Torah laws of parshas Mishpatim. However, this claim would only work if the Avos kept the Torah even when it was more lenient than the seven laws of Bnei Noach. Otherwise, Yosef could have argued back, “What kind of argument is this? According to the laws of Bnei Noach, Binyomin should be put to death for stealing my goblet! Why should your more lenient Torah laws let him off the hook?” The fact that Yehuda used this argument clearly indicates that the Avos not only observed the Torah, but even followed its dictates when this led to leniencies!

However, the Proshas Derachim also acknowledges that the question of the extent to which the Avos kept the Torah is subject to controversy at every level.

In parshas Emor where the Torah relates how the episode of the son of an Egyptian man and Jewish woman who “blessed” Hashem and was put to death, the Toras Kohanim says that the Torah’s expression “in the midst of Bnei Yisroel” teaches that he had converted before this incident occurred. But why did he have to convert? If his mother was Jewish, would this not automatically make him Jewish as well?

The French Sages (Chachmei Tzorfas) explain that before Sinai, Jewish parentage went after the father and not the mother. Therefore, the son of the Egyptian must have converted or he would not have been subject to Torah law. The Ramban there disagrees with their opinion, “I do not agree, because from the time Avrohom made a covenant they were Jews and not counted among the nations.”

The Ramban proves his stance from the Gemara in Kiddushin (67a), where it tries to prove that non-Jews inherit from their fathers, citing the case of Eisav who inherited the Mountain of Seir. The Gemara rejects this proof since “perhaps a renegade Jew is different.” In other words, perhaps Eisav was subject to the Torah laws of inheritance due to his Jewish background. This clearly indicates that even in pre-Sinai times, Torah inheritance law would take precedence over non-Jewish jurisprudence.

From this, the Proshas Derachim concludes that the extent the Avos kept Torah is subject to an argument between the Ramban and the Sages of France.

However, the Proshas Derachim does not mention another Ramban that seems to say the exact opposite.

In Bereishis (26:5), the Ramban raises the question that if the Avos observed the whole Torah, why do we find Yaakov marrying two sisters, Amram marrying his aunt, and Moshe setting up twelve sacrificial stones (matzeivos) at Sinai? Aren’t all these things forbidden by the Torah? The Ramban answers that the Avos only kept the Torah in Eretz Yisroel.

“It seems to me from our Sages,”
he explains, “that Avrohom leamt the entire Torah with Divine inspiration… and observed the whole of it as someone who is not commanded, and he only observed it in the Land. Thus Yaakov married sisters outside the land, and so Amram, etc.”

Ostensibly, the Ramban seems to hold both sides of the question, maintaining that the Avos were fully fledged Jews and not counted among the nations, while simultaneously claiming that they were not obligated to keep the Torah and only observed it voluntarily.

Possibly, the Ramban holds that the two questions are not linked in the slightest. Although the Avos had the full status of Jews, this did not mean they had to observe the Torah since they had not yet accepted it at Sinai. As for the inheritance laws, one could argue that the Avos endowed their property to their sons not due to the Torah’s commands, but due to their Jewish status.


The Proshas Derachim later discovers that the argument regarding the extent of the Avos ’ Jewishness is not only a disagreement between the Rishonim, but existed in the time of the Gemara.

Rabbi Chanina states in Sanhedrin (58b), “A non-Jew who strikes a Jews is liable for the death penalty because it says (Shemos 2:12), ‘He looked this way and that and saw there was no person, and struck the Egyptian.’” This indicates that Moshe relied on Torah law to kill the Egyptian, even though killing someone for striking a Jew contravened the seven laws of Bnei Noach.

However, not everyone agrees that Moshe killed the Egyptian because he had struck a Jew. The Medrash Rabba (Shemos parsha 1:29) explains that Moshe only killed the Egyptian after angels told him that he was liable for the death penalty. In other words, Moshe did not kill the Egyptian for beating the Jew, but rather for some other, concealed, reason. The Yefei To’ar suggests that this hidden reason may be the story mentioned by Rashi in parshas Shemos (2:12).

This would mean that the status of the Avos is based on disagreement between the Gemara and the Medrash.

Finally, the Proshas Derachim pushes the controversy regarding Jewish status back to the time of Yosef and his brothers. Concerning the story of Yosef giving a bad report of his brothers to their father, Yaakov, Chazal explain that, among other things, he told Yaakov that the brothers ate flesh from a living creature. In reality, however, the brothers had actually slaughtered the animal but cut off flesh while it was still moving afterwards (mefarkeses).

According to the Torah, mefarkeses is only permitted to Jews and not to non- Jews. So we can explain that while the brothers thought they were fully fledged Jews and permitted to eat it, Yosef disagreed and thought they were only Jewish lechumra, and were therefore forbidden to eat this sort of meat.

According to this approach, the innocent question with which we began this article was no kleinekeit (minor matter) since the brothers’ argument regarding its resolution led to their controversy and the exile of Klal Yisroel down to Egypt.

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