Halachic Exegesis

Over two years ago, I wrote Drush and Divrei Agada, a guide to what Chazal are trying to do in their non-halachic homiletical interpretations of Tanach. I mentioned briefly that when it comes to halacha, there is usually an insistence on a more precise reading of the actual words (sometimes letters), without elaborating. The time has now come to attempt to explain this more fully, although I will concentrate on the status of these interpretations and not on the methodology.[1]

Different categories and their statuses

Primarily because of its appearance in the siddur, R' Yishamel's list of 13 rules for expounding on passages in the Torah is reasonably well known. His categorisation has already been questioned by many,[2] and for the purposes of this post I would like to divide the various means that Chazal used into seven general categories:[3]

1) Expounding the simple meaning of words. An example would be the various halachos of divorce derived from the term 'sefer krisus' (lit. a document of cutting), requiring a complete separation.[4]
2) Direct inferences. Examples are indications from words like 'your fellow' or 'your brother' that the mitzvah in discussion only applies to a fellow Jew.[5]
3) Deductions based on logic alone (e.g. kal vachomer).[6]
4) Explicit comparisons (hekeshim). For example, the Torah compares a betrothed rape victim to a person who is murdered. From this, Chazal derive that one must give up his life rather than commit adultery, just like it is forbidden to murder someone else even in order to save one's own life.[7]
5) Transferring rules of one mitzvah to another based on identical words (gezeira shava).[8]
6) Transferring rules of one mitzvah to another without any Scriptural comparison (binyan av).[9]
7) Inclusions (or sometimes exclusions) based on seemingly superfluous words or letters.[10]

The first three of these seven categories do not really count as extensions to the simple meaning of the Torah (pshat), although we often do need the Torah sheb'al Peh (Oral Tradition) to interpret. All halachos derived from these methods are certainly considered Biblical concepts, with the full severity that this entails.[11]

The last four categories are more complicated. As far as I am aware, all the examples that I have quoted (including the ones in the footnotes) are universally agreed as being Biblical in their nature. However, considerable debate exists over whether these examples are typical.

The Rambam famously writes that regarding all of the halachos taught explicitly to Moshe Rabbeinu at Sinai and transmitted by him to Yehoshua and the elders, no disagreements arose among Chazal. Some of the halachos derived from the 13 rules of R' Yishmael are debated, whereas others are explanations passed down by Moshe Rabbeinu and are not argued about. Therefore, any law that is not explicit in the Torah and is only derived from the 13 rules, is assumed to be Rabbinic in nature unless Chazal told us clearly otherwise. Even halachos that Moshe himself derived are not considered Biblical if he wasn't taught them by G-d explicitly.[12]

This principle of the Rambam was clearly behind many of his halachic rulings. Classic examples are the prohibition on yichud (seclusion of a man and woman who are forbidden to have sexual relations), the mitzvah of tevilas keilim (immersion of vessels bought from non-Jews) and the invalidity of testimony of maternal relatives and relatives by marriage, all of which are categorised by the Rambam as being Rabbinic.[13]

The Ramban attacks this principle at length. He concludes that the opposite is true – any law derived by Chazal from the pesukim is assumed to be Biblical, unless they said explicitly the opposite. His conceptual argument is that since the 13 rules themselves were taught to Moshe by G-d, there is no reason to differentiate between halachos derived from these rules and halachos taught explicitly by G-d.[14]

Ramifications

This disagreement between the Rambam and the Ramban should be analysed in conjunction with another major basic conceptual argument between them. Although according to the Rambam halachos derived by exegesis are rabbinic, he also writes that the Torah's command to listen to the instructions of the Sanhedrin[15] applies even to rabbinic halachos.[16] The Ramban disagrees strongly,[17] which may explain why he also objected to categorising halachos learned by inference as rabbinic.[18]

The end result is that both agree that one who transgresses these halachos also transgresses a Biblical injunction. This could also explain why the Rambam did not have a problem with saying that laws derived from principles taught by G-d to Moshe are rabbinic – this classification is mostly technical and does not significantly lessen the severity of these laws.[19]

Asmachta

All also agree that at least some of the inferences Chazal made from verses in the Torah are rabbinic in nature. This is explicit in the gemara in several places, where we are told that certain halachos are rabbinic and the verses quoted are merely an asmachta. The word 'asmachta' literally means a support, and it is important to clarify what exactly this means.

The Rambam tells us clearly that this term means that the subject of the verse quoted is not really anything to do with the halacha 'derived' from it. The only reason the verse was quoted at all was as an aid to remembering the halacha (a mnemonic).[20] However, it is clear from the words of the Rambam that standard derivations from the 13 rules do not fall under the category of asmachta. In other words, even according to the Rambam, asmachta is a lower level than regular inferences of Chazal, despite both being classified as Rabbinic.

The Ritva rejects this understanding of asmachta in the strongest terms, calling it heresy.[21] Rather, an asmachta is an insight provided by G-d showing the Chachamim that a certain institution is fitting, although He did not make this obligatory.[22]

Conclusion

Although I have a preference for one side of these debates, it is hard to find conclusive proofs for either side. However, for those who learn gemara in depth it is often crucial to be aware of the different opinions. Deductions of Chazal from the Torah come up all the time, and understanding the topic correctly is usually dependent on how we view these deductions in general. The more one learns, the more one can get a feel for which of these two views approaches best explains the gemara more often.

---

[1] The rules Chazal give for the various methods of expounding are not easy to follow. In several different places Tosfos attempt to understand the consistency behind them, usually failing to manage to explain all of the examples adequately. See for example Sanhedrin 4a (ד"ה כולהו).

[2] See for example Halichos Olam, Sha'ar 4.

[3] I have only included here the methods that Chazal use for deriving new halachos, not the rules for deciding which examples are included in an explicit mitzvah (klal uprat etc.).

[4] See Gitin 21b, amongst other places.

[5] See for example Bava Kama 113b.

[6] One example is the law that one who borrows an item must pay the lender if it gets stolen. This is not explicit in the Torah concerning a borrower, but is derived from the fact that a paid watchman is responsible in the case of theft. As a borrower must pay even for damages beyond his control, he certainly must pay for theft that could have been avoided (Bava Metsia 95a).

[7] Pesachim 25b.

[8] For example, the gemara in Pesachim 33a (and other places) derives the laws of misappropriating sacred property from the laws of teruma, based on the fact that the word 'cheit' (sin) appears in reference to both of these.

[9] The concept of shlichus (the validity of actions of a person's agent) is derived from the rules of divorce and korbanos, and transferred to the rest of the Torah. See Kiddushin 41b.

[10] Perhaps the most common of all of these categories. An example exists in the same section of gemara concerning shlichus, where Chazal derive from extra words that a woman can also appoint an agent to receive her get, and that an agent himself can appoint a secondary agent.

[11] Although the method of 'kal vachomer' cannot be used to derive punishments, this rule is itself derived from a Scriptural proof in Makkos 5b.

[12] Sefer HaMitzvos, Shoresh 2. Although one of the 13 rules of R' Yishmael is the concept of 'kal vachomer,' which I declared above as being part of the simple meaning of the Torah, I believe that this is not contradicted by these words of the Rambam. The concept of 'kal vachomer' can take many forms, and often the conclusion is not 100% compelling based on logic alone (i.e. it may be a logical extrapolation, but not an unquestionable one). I believe that the Rambam is referring to this type of 'kal vachomer.'

[13] Hilchos Isurei Biya 22:2; Ma'achlos Asuros 17:5; Eidus 13:1. All of these rulings were controversial, to the extent that some tried to claim that even the Rambam didn't really mean them (see for example Shach Choshen Mishpat 33:1). However, the truth is that they are fully consistent with the Rambam's own rule.

[14] 'Corrections' to Sefer Hamitzvos ibid. One of his textual arguments is that in several places the gemara first assumes that a certain derivation is Biblical and only when no other possibilities are left, the forced conclusion is that this cannot be the case. The Rambam presumably would counter that after these conclusions were reached in many cases (I counted over 20), we can extrapolate that the same is true elsewhere. One major difficulty according to the Ramban is that no explanation is given as to why certain derivations are considered Biblical (despite not being taught explicitly to Moshe) and others are not.

[15] Devarim 17:11

[16] Sefer HaMitzvos Shoresh 1, Hilchos Mamrim 1:2.

[17] Sefer HaMitzvos ibid.

[18] A major problem with this view of the Ramban is that if no Torah command obligates us to keep the institutions of the Sanhedrin or Chazal, what exactly does obligate us to keep them is very unclear (see footnote 21 below).

[19] Although there certainly are halachic differences between Biblical laws and Rabbinic ones, these differences themselves are technical according to the Rambam. Of note, the Rambam maintains that the rule that in cases of doubt we must rule stringently regarding Biblical laws is itself a rabbinic principle (Hilchos Tumas Meis 9:2. See also Shev Shmaytsa 1:3).

[20] Introduction to the commentary on the Mishna.

[21] Presumably the Ritva was not aware that the Rambam held of this view, as he was certainly not one to call the Rambam a heretic. One of the Ritva's works was Sefer HaZikaron, a defence of Moreh Nevuchim from the critiques of the Ramban. See Shut Kol Mevaser, part 2 siman 21 who also points this out.

[22] Commentary to Rosh Hashana 16a. This also seems to be the view of Tosfos in Chagiga 18a (ד"ה חולו), who say that we should be more stringent regarding rabbinic laws that have an asmachta to them in the pesukim. I believe that the Ramban also must accept this position, as he maintains that when Chazal said that Rabbinic precepts are included in the prohibition of deviating from the words of the Sanhedrin, this is merely an asmachta. Only if an asmachta is a real hint from Hashem can we begin to understand how all rabbinic laws can be based on one.

Who should we vote for? (part 2)

I concluded the last post with the claim that the government have no business interfering with how we educate our children and that therefore schools should be privately run. The question that remained was how schools should be funded, as if this was also entirely private some would not be able to afford to pay for the education of their children.

This question is in fact only a (significant) part of a more general issue that needs to be dealt with. As well as education, if all were left to their own devices the poor would struggle to pay for healthcare, housing, food and basic services. I already wrote about the obligation of the individual to give tzedaka in Tzedaka- Who gets what?, as well as pointing out that communal funds are also necessary. However, so far I only dealt with funds collected voluntarily. What happens if people are unwilling to give what is required of them, leaving the poor without basic needs?

Forcing to give tzedaka

The gemara tells us that one who can afford to give tzedaka can be forced to do so if he refuses to donate willingly.[1] However, it is not completely clear from the gemara who exactly has the authority to adjudicate when this is necessary and to enforce it in practice. Theoretically there are two possibilities – if tzedaka is equivalent to a community tax, it should be the responsibility of the local council (שבעה טובי העיר).[2] If, on the other hand, tzedaka is primarily a religious obligation, this would fall into the jurisdiction of Beis Din.[3]

The Rambam writes explicitly that it is Beis Din who does the forcing,[4] and this is also clear in the gemara.[5] Thus ideally, this whole area should not be within the jurisdiction of the government, either local or national. However, the prophecy of "I will restore your judges to their original state"[6] has not yet been fulfilled, and Batei Din do not have this power.

In this situation, we might ask whether it would be better for no-one to force to give tzedaka. Even if we assume that we cannot forgo the enforcement of tzedaka entirely, it should be clear that enforcement should be primarily in the domain of the local authorities. Practically, local entities are better placed to be able to make decision about the needs of families and individuals in the community, especially when social norms vary from place to place. I believe this is also at least part of the reason behind the rule that "the poor of your city come before other poor people."[7]

The only reason for any intervention on a national level (ideally by the Sanhedrin or far from ideally by the government) is if the inhabitants of a city have a surplus, i.e. the total amount of tzedaka that we can expect them to give is more than enough for poor of that city. If the inhabitants of another city do not have the ability to provide for their own poor, the wealthier city would be expected to support the poorer one. Thus there may be need for the Ministry of Welfare, albeit with a far more limited role.

Who gets what?

Although there will always be a need for some form of tzedaka enforcement, we need to clarify what the extent of this is.

In Tzedaka- Who gets what?, we concluded that we cannot exempt ourselves from giving someone tzedaka just because we suspect that he is able to work and support himself, without first offering him assistance in finding a job. On a communal level, this means that public employment centres are necessary (once again, it would usually be more productive if they were local rather than national[8]). When it is clear that a person cannot provide for himself he must be provided for by the community, when it is not clear there can be no justification for taxing others in order to support him.

Who pays what?

It should be clear that the total amount of tax collected by the government should ideally be equal to the total amount needed for the expenses we have mentioned.[9] An important question that remains is how to decide who pays what proportion of this tax, or in other words whether we should be capitalist, socialist or somewhere in between.

Unlike most of the questions we have dealt with here, the gemara deals explicitly with the question of how to divide tax collections. The gemara deals with collections for the city wall, which was necessary for security. There are three possible factors that influence how much each family pays:

1) The number of people in the family.

2) The amount of money that they have.

3) Their proximity to the wall.

The rishonim explain that all of these factors are measurements of how much each family needs the wall. The larger the family, the more people are who need protection. Those who have more money have more to lose if the city remains unguarded. Those who live closer to the edge of the city will be more likely to be affected by invasions. How exactly to combine all of these considerations is a practical issue, but the principle is clear.

Nowadays, one can argue that all three of the above considerations have little relevance. Although it is still true that larger families have more people who need protection, demographically larger families contribute greatly towards our future security. Those with more money tend to pay for higher levels of private security and may well have less to worry about if communal security is insufficient. Although cities on the national border often do suffer more from enemy attacks, their existence helps to protect those who live further away.

It would be extremely complicated to try to calculate accurately what each family's relative need is and to tax them accordingly. I believe that the two practical models that could give the best approximation would be payment per person or payment per area of living quarters (the model currently used for municipal taxes, albeit with deductions based on other factors).

The almost universally accepted method of taxing according to income does not fit into the model of the gemara. It seems to be based purely on a philosophy of (indirect) tzedaka enforcement on a national level, which as we have written is hard to justify morally. In addition, it can only limit productivity, as people know that large chunks of what they earn do not ever enter their own pockets.[10]

Other Ministries

From what I have written so far, it should be possible to extrapolate to almost all the other areas currently controlled by the government. For example, health is very similar to education when it comes to government – any subsidies should only be necessary for those unable to afford standard healthcare (or health insurance) and should be the responsibility of the Ministry of Welfare.[11]

In other areas, government intervention should only be necessary when national networks are involved. For example, the Ministry of Transport is needed to ensure that services join up and to administer the allocation of public land.[12]

Religious Affairs

In the previous post, I explained why religious affairs are not supposed to be the primary responsibility of the government. I would like to elaborate on this here, explaining how issues such as marriage and kashrus should be administered.

I have never understood any reason to set up national bodies to deal with these issues, in the same way that I favour privatisation in other areas. Kashrus is inherently something private, with one religious Jew being sufficient to testify that something is kosher.[13] Although bigger food companies usually require larger organisations to supervise them, why make these organisations larger than they need to be?[14]

The same thing is true for marriage (and even for divorce). In principle, two people can marry or divorce and all they need is two kosher witnesses. Although there was a later institution that a rabbi should supervise marriage and divorce, why increase this to a country-wide system? There is no precedent for this in Jewish history, not even when we were all living on our land during the times of the first Beis HaMikdash.[15]

The one issue for which I am convinced of the need of national administration is geirus. Although technically even conversion to Judaism only requires a private court of three, how to decide which court is acceptable is a national issue. As any Jew has the right to Israeli citizenship, there is a need for a national definition of who is a Jew. Ironically, specifically in this area the Rabbinate does not currently have full control.[16]

---

[1] Bava Basra 8b

[2] See Choshen Mishpat siman 2.

[3] The example of Rava in the gemara is inconclusive – he could have acted as a dayan or as the city's 'important person' who must ratify monetary legislation (see Ibid. 9a).

[4] Hilchos Matnos Aniyim 7:10

[5] In Kesuvos 48a the gemara tells us that Beis Din collect tzedaka from the property of one who became mentally disabled (if he has the means to give) but not from the property of an absentee. See Ktzos HaChoshen 39:1 who explains that since the obligation to give tzedaka is religious in nature, forcing a person to give is only possible when he is present. Although he concludes that the obligation to give tzedaka also creates a lien on the property of one who is supposed to give and that the only reason an absentee cannot be forced is because he could be fulfilling the mitzvah elsewhere, the religious nature of the mitzvah is not questioned.

[6] Yeshaya 1:26

[7] Sifrei, parshas Re'eh section 116. See Tzedaka- Who gets what?, footnote 10.

[8] Although some kind of national overseeing is necessary to ensure that these centres do what is expected of them and that they are funded adequately, meaning that the Ministry of Economy (Trade & Industry) is a necessity. In the modern world of international trade it is also necessary for other reasons, although I suspect that this department could also be cut back significantly, leaving the bulk of trade in the private domain. Tariffs on imports limit competition and tend to be a negative influence on the economy, although my knowledge of economics is not sufficient to make any definite judgments.

[9] Obviously it is not possible to make this exact. In addition, for economic reasons it may be necessary for governments to borrow money intentionally, and I do not mean to pass any judgment on this (except that this should be done only for economic reasons and not for political gain).

[10] This is exacerbated by higher rates of tax for those on higher incomes.

[11] Although lives could be saved by subsidies of expensive treatment not included in standard insurance policies, it is not practical for our taxes to pay for this for everyone who needs it. On the contrary, private insurance usually covers more than national healthcare.

[12] Here too, where possible privatisation will be more efficient and there should usually be no need to subsidise services. However, sometimes for security reasons it is necessary to provide easily affordable transport to areas that may otherwise be left uninhabited. Decisions here should be the responsibility of the Ministry of Defence.

[13] See Kashrus - who can we trust?

[14] Many argue that when it comes to kashrus, competition is counter-productive because for most people the priority is low costs and not high standards of kashrus. This may be true, but if so I do not believe that is practical for the minority to enforce their standards on the majority. Those interested in higher standards will always provide their own market for different hechsherim to compete over.

[15] As with all other issues, the justice system will sometimes have to decide when something has been misrepresented. If someone has sold food which he claims is kosher, or a 'rabbi' claims to have overseen a marriage according to halacha but this is questioned, national law must have a way to rule. It may well be necessary to have a national rabbinate even it was just for these issues, although its size would be limited.

[16] The law gives the right of return to anyone with a Jewish grandparent, contrary to halacha.