The Power of Hazal to Derive New Law

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by R. Gidon Rothstein

We are studying the first part of Peri Megadim’s Petihah Kolelet, where he is laying out the levels of halachah, and we have spent our first few weeks on explicit Torah law. We are about to finish (I should have finished it last time, I didn’t look ahead to see how close we were; my apologies). His second to last point in this regard calls our attention to how unclear it can be to know what counts as being written directly in the Torah.

Turning a Phrase in a Different Direction

Consider a prohibition derived by the Talmudic principle of im eino inyan, where a verse is not needed for its most obvious meaning, and therefore is used to teach some other issue. R. Eisenberger’s notes give an excellent example (from Peri Megadim’s Porat Yosef), the prohibition against eating meat and milk, basar be-halav. The Torah records the prohibition three times, each speaking of cooking. Since we do not need the repetitions about cooking (im eino inyan, if it’s not needed for), the Gemara applies one to eating and one to deriving benefit, hana’ah.

A prohibition inferred this way does not bring lashes, Peri Megadim tells us, but he is unsure of what that says about the prohibition. Is the prohibition considered fully explicit in the Torah? The Gemara presents it as the meaning of the phrase, because it did not need to mean its more obvious meaning. In that version, it would be an explicit prohibition where a court would never give lashes for some ancillary reason. On the other hand, the lack of lashes may mean it does not count as explicitly, similar to hatzi shi’ur, the prohibition on performing less than a minimum amount of a prohibited item (as we saw last time.

As we have seen before, one good way to capture the distinction is to ask whether an oath would take effect. Jews are already obligated to fulfill the Torah they were given at Sinai, so oaths on those obligations do not take effect. What about im eino inyan rules?

(R. Eisenberger tells us Peri Megadim held there could be lashes for eating basar be-halav in another of his works, Ginat Veradim. That doesn’t clinch the question, because there is also a kal va-homer argument from cooking. If cooking produces lashes for deliberate transgression, and the point of cooking is to make something edible, eating is all the more so prohibited. When an im eino inyan prohibition has a kal va-homer, a court does administer lashes.)

Do not be fooled by the technicality of the question; it aims to understand when reasoning takes us to the plain meaning of the text—does im eino inyan turn this text into one about gaining benefit from meat cooked in milk?—and when rabbinic reasoning infers new ideas from the text. Those new ideas must be treated as Torah law as well, but with significant nuances.

His next category will take that up as well, the status of ideas derived with a hekesh or a gezerah shavah, the forms of rabbinic reasoning seen as most directly connected to the plain sense of the text, and therefore most likely to count as the sense of the Biblical text.

The Power of Hazal to Uproot

As a last note about Torah law, he reminds us Hazal have the ability to tell us not to keep the Torah in certain cases (as we all know from when Rosh HaShanah and Sukkot are on Shabbat, when we do not blow shofar or shake lulav). Peri Megadim points out Taz  suggested a limit to this power, Hazal can only uproot a Torah law partially.

R. Eisenberger gives examples to clarify the point. Th nk about shofar on Shabbat. R. Eliyahu Mizrahi wondered why Hazal did not prohibit shofar every holiday, lest the person forget and fix musical instruments. Taz answered that Hazal can only tell us not to observe a certain mitzvah if they still leave room for the mitzvah. Rosh HaShanah falls on Shabbat sometimes, leaving other times shofar will be blown.

In another limitation on Hazal’s powers Taz articulated, Beit Yosef records Ran’s curiosity as to why Hazal allowed circumcision on Shabbat, when we should worry people would carry the baby (or the knife) where not allowed. Taz says once the Torah explicitly allowed circumcision on Shabbat (by speaking of u-va-yom ha-shemini, on the eighth day, a verse the Gemara understands to include Shabbat), Hazal could not make a rule against it.

Peri Megadim also thinks this power is limited to shev ve-al ta’aseh, when they tell Jews not to do something, but could not apply to actively violating the Torah [other authorities disagree; they think Hazal can occasionally even call for Jews to actively violate the Torah, with enough cause. The matter is a centuries-old debate]. For his view, we need to know what counts as shev ve-al ta’aseh, refrain from fulfilling a Torah law. For example, Hazal said not to put tzitzit on linen garments, because they held the ability of tzitzit to push aside the prohibition of shatnez worked only if the tzitzit had techelet, the bluish string lost for much of Jewish history (which many today believe has been rediscovered).

Wearing linen clothing without tzitzit would seem to be active violation of Torah law, the person puts on the garment. Peri Megadim says these kinds of questions have to be considered individually (R. Eisenberger points us to Tosafot in Yevamot 90b, who suggested tzitzit becomes obligatory just after one dons the piece of clothing, so at the moment of putting it on there is no obligation, and then it is a matter of refraining from putting on tzitzit. I think others see this as an example of the power of Hazal to sometimes uproot Torah law actively).

Derivations—Direct Torah Law or Not?

So far, we have what the Torah says itself, and what the oral tradition told us was the true meaning of the verses. Beyond that, the issue gets murkier. Sometimes, the Gemara will derive an idea with a hekesh, where a verse groups two items together and assumes the laws of one apply to another. (His example is the prohibition to eat sacrificial meat that has become ritually impure, which R. Pappa in Pesahim 24a derives from its linkage to ma’aser sheni, the tithe brought to Jerusalem and eaten there in years one, two, four, and five of the shemittah cycle).

Where the same word appears in two different places, the Gemara sometimes knows of a gezerah shavah, a tradition the word comes to tell us the laws from one place apply in the other. (He gives an example from the laws of arayot, prohibited sexual relationships).

Both these types of inferences also count as explicit in the Torah, such that (for example) we would not limit them to the same parameters as the original, a rule known as dayo that we do apply to a kal va-homer. Their explicit status does not solve all our problems, however. Sometimes, a gezerah shavah can work to teach either a leniency or a stringency, and does not tell us which. Because of the doubt, Peri Megadim such situations will not produce lashes for deliberate sinners.

There are also kinds of gezerah shavah and of hekesh, with nuances Peri Megadim discussed in other of his works. (Meaning we cannot understand what counts as the Torah’s explicit words before we categorize all of these types).

Ideas Taught By the Thirteen Middot (Hermeneutical Principles)

A step down from there, we have laws Hazal  inferred or derived with other middot, hermeneutic principles of how to read the Torah. For all of those, as well as for Halachah le-Moshe mi-SinaiPeri Megadim thinks there would be no Torah punishment. They count as de-oraita, Biblical law, but similar to hatzi shi’ur that we have seen a bunch of times already, they do not have lashes, and an oath not to transgress them would take effect.

(He points out a wrinkle, there are two possible reasons we do not punish those who transgress a rule we know only through a kal va-homer. One option is the reasoning can go so far as to institute a prohibition but not a second step to a punishment; the other is that we are never certain the logic of a kal va-homer is ironclad. If it is a matter of doubt, the sinner might be liable for the punishment, which creates the odd twist that if the sin was a capital crime, the sinner might not be liable for monetary damages, since s/he might be liable for death.)

Peri Megadim notes Rambam refers to such laws as divrei soferim, the words of the Scribes, a locution that could have sounded as if those rules were rabbinic. He is sure Rambam did not mean that, because he elsewhere speaks of rules being mi-divreihem, of their words, or de-rabbanan, rabbinic. (For all Peri Megadim is sure, the question of what Rambam meant with the term has been debated almost since Mishneh Torah first came out; I remember once skimming a book, I thought by a scholar named Heinemann, on the issue, but couldn’t find it now when I looked for it online. There is a more recent book by R. Shmuel Ariel of Yeshivat Otniel on the topic, although I haven’t read it).

The status of these kinds of laws, halachah le-Moshe mi-Sinai and those derived with the middot, matters for a huge category, doubtful cases. Doubt in matters of Biblical law is treated stringently, where in matters of rabbinic law is treated leniently. What about here?

I am skipping some examples of his uncertainty about how we use these ideas, including some doubts about what we count as doubts. We’ll end here with one doubt he has, for an idea he quoted above, Taz’s view Hazal cannot prohibit what the Torah explicitly permitted. In the case of halachah le-Moshe mi-Sinai and/or derivations, do they count as explicit for this context as well?

As I hope is becoming clear, Peri Megadim is not here to answer all the questions, he is here to raise them, to give us a sense of the complications of the system. The rules for how we treat laws explicit in the Torah differ from those for rabbinic laws, clearly. He is showing us that it is not simple to know what counts as explicit, given Hazal’s right to derive, sometimes in ways we think reveal what the Torah plainly meant, and sometimes in ways that count as a step below explicit, even if they are still Biblical laws.

Next time, we will start with how the issue affects Jews’ responsibilities towards each other, arevut.

About Gidon Rothstein

One comment

  1. When the Maharil rules that unmarried men should NOT wear a tallit gadol pursuant to his derivation of this “law” from the juxtaposition in Sefer Devarim of the laws of marriage with the laws of tzitzit, is this also an example of Hazal’s power to derive new laws?

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