Question #1: Reasoning
Can we restore a lost mesorah on the basis of logic?
Question #2: Kal vachomer
If an opening is large enough for a football tackle to rush through unimpeded, shouldn’t a healthy ten-year-old be able to walk through it?
Question #3: Gezeirah shavah
What is meant that something is an “equal decree”?
Foreword:
Immediately prior to the kaddish derabbanan recited at the end of the korbanos section of our davening, we recite a beraisa in which we enumerate the thirteen “midos” of Rabbi Yishmael, a listing of methods whereby the laws of the Torah shebe’al peh are derived from the written Torah. This beraisa is the beginning of the introduction to the Sifra (also called the Toras Kohanim), the halachic midrash of the book of Vayikra.
The goal of this article is to explain the beraisa of Rabbi Yishmael, but I must first explain what halachic midrash is. Halachic midrash is the method whereby the laws of the Torah shebe’al peh can be derived from the Written Torah. When Moshe Rabbeinu spent forty days on Har Sinai, Hashem taught him all the laws of the Oral Torah. Moshe then taught these laws to the Bnei Yisrael in a method that is described in the Gemara (Eruvin 54b) such that each adult male Jew would hear the laws four different times. Each person kept his own private notes to help him remember the laws of the Torah shebe’al peh.
The system was not perfect. When Moshe Rabbeinu passed on, the Jewish people realized collectively that they could not recall clearly thousands of laws that Moshe had taught them. The Gemara teaches that Asniel ben Kenaz was able to restore these laws to the collective memory by figuring them out bepilpulo, by use of dialectic reasoning.
To quote the passage of Gemara (Temurah 16a):
Immediately prior to his passing on to Gan Eden, Moshe Rabbeinu said to Yehoshua,
“Ask of me every doubt that you have!” Yehoshua answered, “Rebbe, have I left you for a moment and gone somewhere else? Did you not write about me that ‘his assistant, Yehoshua bin Nun, never left the ohel mo’eid’” (Shemos 33:11)? At that moment, Yehoshua weakened (as a punishment for the lack of humility implicit in his answer [Maharsha; cf. Rashi]): he forgot three hundred halachos and also now had seven hundred uncertainties (which were discovered after Moshe passed away). The entire people of Israel rose up against Yehoshua, planning to kill him… The beraisa taught: seventeen hundred cases of kal vachomer, gezeirah shavah, and derived halachic details were forgotten during the mourning period for Moshe. Rabbi Avahu responded that they were “retrieved by Asniel ben Kenaz with his dialectic reasoning.”
Thus, the opening question to our article: “How can we restore a lost mesorah on the basis of logic?”
The answer is that, alongside the Torah shebe’al peh and the written Torah, there is a mesorah of rules whereby the laws of the Torah shebe’al peh are derived from the written Torah. These laws were all part of the original Oral Torah, as were the rules, which provide a backup whereby the laws may be retrieved should they be forgotten.
The rules for deriving the laws fall into two categories:
Extra words — yalfusa
1. Some halachos are derived on the basis of extra words or parts of words in the Torah. An example of this is that, when the Torah provides lengthy instructions for offering the various korbanos each day of Sukkos, a discerning reader will notice that the template reading of the different days is not identical. While the wine libations on these days are identical, the word used to describe those libations varies, twice with a מ added and once with a י added. These extra letters spell the word מים, water, whence we derive that, on Sukkos, there is a unique service called nisuch hamayaim, pouring of water on the mizbei’ach. This law is not mentioned anywhere else in the Written Torah, but is expounded upon in the Oral Torah, the Torah shebe’al peh.
Clearly understanding the pesukim of the Torah provides the sources for these halachos, and this is a common way that these laws are derived by the Gemara and by the halachic midrashim. Understanding the grammar as Chazal understood the pesukim of the Torah is an essential way towards deriving these laws. The absolute master in explaining these rules is the Malbim, in his work entitled Ayeles Hashachar, usually printed as an introduction to his commentary to Vayikra. The Malbim writes that he had originally planned to provide a thorough explanation of the halachic exegesis process as a running commentary to the Sifra. However, after writing the commentary to just two pesukim, he discovered that the results of this work would be the length of a multi-volume encyclopedia. As a result, he wrote instead an introductory work, Ayeles Hashachar, elucidating the grammatical principles whereby Chazal derived the words of the Torah as a source for the laws of Torah shebe’al peh. Throughout his commentary to Vayikra, the Malbim refers to the Ayeles Hashachar to explain how Chazal understood each pasuk and arrived at their conclusion.
Midos
2. Other halachos are derived on the basis of hermeneutic rules, called midos,that are methods whereby halachos not obviously mentioned in the written Torah are taught. In other words, these halachos were included in the Torah shebe’al peh, but, again, as a backup, they could also be derived on the basis of the rules of Torah shebe’al peh. The thirteen rules that we recite in our davening is Rabbi Yishmael’s version of these rules. There are slight discrepancies or differences of opinion among tanna’im concerning some of the rules used to derive these laws, meaning that the details of how these rules work were occasionally disputed. That is why the midos are referred to as the thirteen rules of Rabbi Yishmael. This article will not address the disputes.
These are the thirteen rules that are mentioned in the beraisa of Rabbi Yishmael, as understood by the Ra’avad and most late commentators:
1. Kal vachomer
2. Gezeirah shavah
3. Binyan av
4. Klal ufrat
5. Prat uchlal
6. Klal ufrat uchlal
7. Klal shehu tzarich lefrat
8. Davar shehayah bichlal viyatza lelameid
9. Davar shehayah bichlal viyatza ke’inyano
10. Davar shehayah bichlal viyatza shelo ke’inyano
11. Davar shehayah bichlal viyatza bedavar chodosh
12. Davar halameid mei’inyano
13. Shnei kesuvim hamach’chishin.
Those familiar with the beraisa of Rabbi Yishmael will immediately note that I have omitted significant sections of the beraisa.
A. In some instances, the beraisa provides two variations of a rule, such as, it presents two types of binyan av. I will explain why there are two types, but they are both manifestations of the same hermeneutic principle.
B. Some of these rules are mentioned by the beraisa without any explanation as to how they work or what they mean. For example, four of the first five rules, kal vachomer, gezeira shavah, klal uprat and prat uchlal are not at all explained. On the other hand, the method of derivation of most of the other rules is mentioned in the beraisa, although they are never fully explained. Iy”H, I will be explaining these rules.
Frequency
We should also be aware that some of these rules have thousands of applications, whereas others of them appear very few times in all of Talmudic literature.
Kal vachomer
At this point, I will explain the first of Rabbi Yishmael’s midos,which is perhaps the most obvious rule in terms of logic: the kal vachomer. Among the thirteen rules, this one is unique, because it actually appears several times in the Chumash itself as part of someone’s logical argument. For example, to prove that they are innocent of stealing Yosef’s goblet, the brothers rally a kal vachomer. “If we returned the money that we found in our sacks, how could we possibly have considered taking something that is not ours?” (Bereishis 44:8).
Very simply put, a kal vachomer means that if something is true in a more obvious situation, it should certainly hold true in a less obvious situation. A simple application is as follows: If a burly, 6’ 10” football tackle weighing 350 pounds can race through a passageway unhindered, a 100-pound, 5’ person with no ambulatory difficulties should certainly be able to enter via the same opening.
Ein onshin min hadin
There are a few instances in which a kal vachomer cannot teach a halacha. Although a kal vachomer can prove that something is prohibited, it cannot be used to establish punishment, a principle called ein onshin min hadin. When the Torah imposes a penalty or punishment for violating a law, we cannot derive by means of a kal vachomer that this penalty or punishment applies to a newly derived law.
Why not?
We find two different reasons why ein onshin min hadin. One is that, although the punishment described by the Torah may be appropriate for a lesser crime, someone violating a more serious infraction should perhaps be punished in a harsher way. In other words, kal vachomer can teach that if the Torah prohibited a lesser sin, it certainly prohibited a more serious infraction. However, the more serious crime might require a more severe punishment than what the Torah meted out for the lesser offense.
Another reason explains that ein onshin min hadin is based on possible human logical fallibility. In general, we are obligated to apply our G-d-given intelligence when studying mitzvos, and kal vachomer is an example of this. However, prior to meting out judgment on the basis of a kal vachomer, we must recognize that there might be a reason why what appears as a kal vachomer is actually not. According to this approach, the Torah’s precept not to punish someone until and unless we are absolutely certain of his guilt requires that he not be punished on the basis of a kal vachomer.
These two approaches are not mutually exclusive; both factors might be true. We cannot punish someone on the basis of a kal vachomer because the kal vachomer itself may not be fully accurate; or the kal vachomer may be correct, and precisely because this act is a more serious crime its perpetrator should not be punished this way.
Dayo
There is another instance whereby someone might think he can apply a kal vachomer, but he cannot. This is referred to as a case of dayo laba min hadin li’heyos kanidon, which means that you cannot derive with a kal vachomer more than the original source teaches, regardless as to how compelling the kal vachomer might appear. The Sifra picks an example of this from a pasuk in Chumash. When Miriam complained to Aharon about Moshe’s behavior regarding his wife Tziporah, Miriam was guilty of saying loshon hora at that moment and turned white as a metzora. The pasuk then states, “Had her father spat in her face, would she not not have been ashamed for seven days” (Bamidbar 12:14). The Sifra completes the thought of the pasuk:for violating what Hashem has taught, she should be punished for fourteen days. Yet the Torah continues that her punishment is for seven days! Since the Torah concludes that she should be punished for no longer than she would have had her father censured her, any longer cannot be attributed to the kal vachomer.
Gezeirah shavah
The second principle of Rabbi Yishmael’s list is gezeirah shavah, which is a legal analogy based on the use of the same term in two separate cases. To explain this, we first need to translate and explain the words. Most people familiar with the concept of gezeirah shavah are not aware of the origin of the term. The word gezeirah in this context means “word structure;” the word shavah means “similarity.” Therefore, the term means “a similarity of words.”
Here is an example of a gezeirah shavah: through the use of the same term regarding the mitzvos of eating matzoh on Seder night and on sitting in the sukkah on Sukkos we derive that, although on the rest of the seven days of Sukkos a person may avoid eating bread and other foods that require him to eat in the sukkah, on the first night of Sukkos he is, indeed, required to eat a meal in the sukkah.
Please note that the halacha requiring that we eat in the sukkah on the first night was taught as a mesorah from Sinai. The gezeirah shavah is a means for making certain that this law would not be forgotten.
At this point, we can answer another of our opening questions: What is meant that something is an “equal decree”?
The answer is that this is a complete mistranslation and misunderstanding of the words gezeirah shavah, just as a “helicopter mom” does not require a pilot’s license. The word gezeirah shavah means “a similarity of words.”
Same meaning
Those who are familiar with studying the concept of gezeirah shavah as it surfaces in the Gemara know that sometimes a gezeirah shavah is the exact same word, other times it is the same root, but not the exact same word, and at other times it can even be two words or terms that mean the same thing but are completely different words. One example of this last case is a gezeirah shavah that the Gemara derives from the words shav and ba in the laws of metzora (which is cited by Rashi on Chumash, Vayikra 14:39). Another example is where the words shachat and zavach are used as a gezeirah shavah (Chullin 85a). The two words both mean to slaughter.
There are many rules governing how a gezeirah shavah may be used to derive laws, depending on such issues as whether the word is repeated in both instances of its application, the exact word is used in both places, and are there other places in which a more obvious comparison may exist. We will not study these differences in our article.
Most people do not realize how many gezeiros shavos actually exist. I am in possession of a lengthy manuscript that explains many of the usages and rules applying to gezeirah shavah, and includes an extensive list of every case of gezeirah shavah that its author identified — over four hundred instances of gezeirah shavah and thousands of applications.
Gezeirah shavah is unlike any of the other thirteen midos in one very important way: regarding every other midah, a general mesorah exists to use the midah to derive halachos. Gezeirah shavah, on the other hand, requires that there is also a mesorah via Moshe at Har Sinai that the specific words are a gezeirah shavah. Otherwise, ein adam dan gezeirah shavah mei’atzmo, someone cannot declare that certain terms or words are a gezeirah shavah on the basis of his own personal authority.
Exception
Based on a passage of Talmud Yerushalmi (Pesachim 6:1), we know that there is one exception to this rule. The Yerushalmi notes that, in an instance when we have a mesorah from an earlier source that a specific law is true, but we no longer know the hermeneutic origin for this law, someone may suggest a comparable word association, a gezeirah shavah that might be the hermeneutic source for this law.
However, in this instance, we cannot derive any new rulings with the gezeirah shavah. All we can do is suggest that perhaps the hermeneutic source of this law is the gezeirah shavah. (According to many rishonim, including Rashi, a similar concept exists relative to Halacha leMoshe miSinai. When we know that a halacha is true, but we are unaware that it has a hermeneutic source, we can suggest that its origin is a Halacha leMoshe miSinai [see Rashi, Bava Kama 3b].)
Be’ezras Hashem, we will continue this topic of analyzing the thirteen midos taught by Rabbi Yishmael in a future week.
Conclusion
When the Gemara teaches that the teachings of the rabbonim are dearer to Hashem than the laws of the Torah, it certainly includes the vast halachic literature devoted to understanding the thirteen midos. The Gemara expresses this notion by saying that what is derived from a drasha is more cherished even than the Written Torah (Yevamos 2b; 3a; see also Ritva and Aruch Laneir, Makkos 13a; Maharam Lublin, Bava Kamma 17b). To quote Rav Chaggai in the name of Rav Shmuel bar Nachman: “The Torah refers to that which is taught in the Oral Torah and that which is taught in the Written Torah, yet we do not know which is more cherished. When the pasuk states, ‘according to these words I sealed the treaty with you and with Yisrael’ (Yirmiyahu 33:25), this teaches us that the Oral Torah is more dear” (Yerushalmi, Peah 2:4).
