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.
[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).
[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.
[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.
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