Nitzavim-Vayelech (5765)

From the book Mida Tova: Articles on the Hermeneutical Principles by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Midah Tovah — Sabbath eve of the Nitzavim–Vayelekh portion, 5766

Questions

1. Is gezerah shavah (verbal analogy) an exceptional hermeneutical principle?
2. Does this exceptional status stem from the need for tradition?
3. What happens when gezerah shavah conflicts with other hermeneutical principles?
4. What happens when gezerah shavah conflicts with the plain meaning of Scripture?
5. Are there exceptions to the rule that “a verse does not depart from its plain meaning”?
6. Why is there an asymmetry between deriving a gezerah shavah from a hekkesh and deriving a hekkesh from a gezerah shavah?
7. On two planes of contradiction between plain-sense interpretation and midrashic interpretation.
8. Is gezerah shavah an essential comparison? A source from the sugya of distinguishing sin-offerings.

The Hermeneutical Principles

Gezerah shavah (verbal analogy). Kal va-homer (a fortiori inference). Binyan av (deriving a general rule from a prototype verse). Semukhin (inference from juxtaposition). Hekkesh (textual linkage). Lamed min ha-lamed (deriving from something that is itself derived).

When all Israel comes to appear before the Lord your God in the place that He will choose, you shall read this Torah before all Israel in their ears. Assemble the people, the men, the women, the children, and the stranger within your gates, so that they may hear, so that they may learn, and so that they may fear the Lord your God and observe to do all the words of this Torah.

— Deuteronomy 31:11–12

All are obligated in appearing, except a deaf-mute, a person of unsound mind, a minor, a person of indeterminate sex, an androgynous person, women, slaves who have not been freed, the lame, the blind, the sick, the aged, and anyone who cannot go up on his own feet. Who is a minor? Anyone who cannot ride on his father’s shoulders and go up from Jerusalem to the Temple Mount; this is the view of Beit Shammai. But Beit Hillel say: anyone who cannot hold his father’s hand and go up from Jerusalem to the Temple Mount, as it says: “three foot-festivals.”

— Mishnah, Chagigah 1:1

“All are obligated in appearing” — in the commandment of “all your males shall appear” (Exodus 23), for they must present themselves in the Temple courtyard on the festival. “Except a deaf-mute, a person of unsound mind, and a minor” — for they are not persons of understanding and are exempt from commandments. “The lame and the blind” — all this is derived from verses in the Gemara. “And anyone who cannot go up on his own feet” — from Jerusalem to the courtyard, and the Gemara explains them. “Who is a minor?” — but from this point onward, although he is not obligated by Torah law, the Sages imposed upon his father and mother the duty to train him in the commandments. “Three foot-festivals” — Scripture obligates one who is fit to go up on his own feet; and since an adult is exempt by Torah law, a minor is not subject even to such training.

— Rashi on Mishnah, Chagigah 1:1

“All are obligated in appearing” — the Mishnah speaks of appearing with an offering. But as for appearing before God itself, even a minor is obligated, from the verse “Assemble the people, the men, the women, and the children”; and no minor is greater than a child.

— Jerusalem Talmud, Chagigah 1:1

“A deaf-mute” — the colleagues said in the name of Rabbi Elazar: “so that they may hear, and so that they may learn.” So far this excludes one who speaks but does not hear. What of a deaf person who hears but does not speak? Rabbi Ila said in the name of Rabbi Elazar: “so that they may learn, and so that they may teach…”

— Jerusalem Talmud, Chagigah 1:1

“A minor” — Rabbi Yirmiyah and Rabbi Eivo bar Nagri were sitting and saying: We learned, “Who is a minor? Anyone who cannot ride on his father’s shoulders.” But a minor can hear, and a minor can speak. They reconsidered and said: “All your males” includes the minor. Then let “all your males” include the deaf-mute! “So that they may hear, and so that they may learn” excludes the deaf-mute. Then let “so that they may hear, and so that they may learn” exclude the minor! Rabbi Yose said: Since one verse includes and one verse excludes, I include the minor, who will in time become fit to come, and I exclude the deaf-mute, who will not in time become fit to come.

— Jerusalem Talmud, Chagigah 1:1

A. Summary of Last Year’s Article

At the beginning of our discussion, we considered the connection between the commandment of Hakhel, the septennial public assembly, and the commandment of pilgrimage appearance. First, the time of Hakhel is precisely when people also come on pilgrimage. Second, the Gemara in Babylonian Talmud, Chagigah 3a brings a gezerah shavah on the word “appearance” with respect to those exempt from these two commandments. There are, however, differences: women, children, and uncircumcised males are exempt from appearance but obligated in Hakhel. By contrast, a deaf person who only speaks or only hears is exempt from Hakhel, and from there we learn that he is also exempt from appearance.

The gezerah shavah employed here is asymmetrical: the exemptions of Hakhel teach about appearance, but not vice versa. At first glance, this is evidence for Rashi’s view, according to which the rule “there is no half-gezerah shavah” is stated only in one direction, and not necessarily so as to equate the two directions, contrary to Rashbam’s view. See the sheet for the Ki Tavo portion, beginning of chapter 2, and likewise Vayera, end of chapter 2.

We proposed a first possible explanation: this gezerah shavah is one-sided mufneh — that is, the shared term is textually free on only one side — and in such a case perhaps even Rashbam would agree that the gezerah shavah is not symmetrical. See also the article from last week. We cited the words of Turei Even, who shows that the word “appearance” with regard to Hakhel is indeed mufneh. It follows that, if mufneh-status really does indicate the direction of the gezerah shavah, then the mufneh side is the teaching side and not the side being taught. We then suggested that one-sided mufneh points to a formal gezerah shavah rather than an essential comparison, and we demonstrated this in our case with the passage of Hakhel.

The second explanation we proposed rests on the fact that the word “to appear” in the passage of Hakhel also refers to the commandment of appearance itself, and perhaps this hints that the direction of the gezerah shavah runs from Hakhel to appearance. Since Scripture explicitly hinted this, even Rashbam would agree that there is no room here for symmetrization.

We noted that according to the Jerusalem Talmud — and likewise according to Rabbi Elhanan and Rabbenu Tam in the Babylonian Talmud — the gezerah shavah is in fact symmetrical, since it is made between the duty of pilgrimage ascent and the commandment of Hakhel. The exemptions unique to appearance, which do not teach about Hakhel, concern only the duty of bringing the appearance-offering, and not the basic duty of pilgrimage ascent itself. The Jerusalem Talmud also derives from the gezerah shavah both leniently and stringently, and in that sense it completes the rule “there is no half-gezerah shavah” in all its meanings.

We then pointed out that in every gezerah shavah there is a dilemma: whether to import the leniencies from side A or the stringencies from side B. See also the article on the Vayechi and Ki Tavo portions, 5765. We noted that gezerah shavah fills lacunae and does not alter matters stated explicitly in Scripture, and this is what usually determines its direction.¹ In this year’s article we will elaborate further on this point.

In the second chapter we dealt in detail with the exposition of the Jerusalem Talmud, which is a symmetrical gezerah shavah. In that context we also considered whether gezerah shavah is a formal principle or whether it testifies to an essential comparison; we will return to this in chapter 3 of this year’s article. We also discussed the role of sevara, conceptual reasoning, in such expositions — a role that determines whether we should include or exclude, and what exactly should be included or excluded. We will not elaborate further on that here.

B. Gezerah Shavah as Explicit Scripture

Introduction

We saw in last year’s article that gezerah shavah always operates under the constraints of the written text. It does not change data that appear explicitly in Scripture; it only fills lacunae. This consideration is what generally determines the direction of learning through gezerah shavah.¹

This phenomenon is natural enough in light of the relationship between the hermeneutical principles and the biblical text. Nevertheless, in this year’s article we will try to examine the relationship between gezerah shavah and explicit verses, and we will see that the picture is not so simple, on several different planes.

The Force of a Gezerah Shavah: Nahmanides

Nahmanides writes as follows in his glosses to the second root principle:

They already said: “Never let a gezerah shavah be light in your eyes, for piggul is one of the core laws of the Torah, and Scripture taught it only through a gezerah shavah.” And similarly they said concerning notar: “Never let a gezerah shavah be light in your eyes, for notar is one of the core laws of the Torah, and Scripture taught it only through a gezerah shavah.” And similarly they said concerning a man’s daughter born from rape. They also said further that those liable to stoning are likewise core laws of the Torah, yet Scripture did not teach them except by gezerah shavah, all as stated at the end of tractate Keritot (5a). Thus gezerah shavah is like the Torah itself, and not only for interpreting what is written in the Torah, but even for introducing a novel matter not written in the Torah, such as a man’s daughter born from rape and the other forbidden relations learned from it, such as the mother of his mother-in-law, the mother of his father-in-law, the daughter of his son’s daughter, and the daughter of his son’s son. Their statement, “Never let a gezerah shavah be light in your eyes,” indicates that they were speaking about every gezerah shavah that they expound, and that these are not the only primary examples…

— Nahmanides, glosses to the second root principle

Nahmanides determines that gezerah shavah is exactly like the Torah itself. From the context, however, it emerges that Nahmanides means that all the hermeneutical principles are like complete Torah, gezerah shavah included. The context is his dispute with Maimonides, who holds that what is derived through the thirteen hermeneutical principles has the legal status of rabbinic law. See our articles on the Yitro and Mishpatim portions, 5765, and elsewhere. There is therefore no necessity to infer from Nahmanides’ words that gezerah shavah has a special status beyond the other hermeneutical principles.

The Force of a Gezerah Shavah: The Words of Rashi’s Teachers

Indeed, we find in the words of Rashi’s teachers an implication that gezerah shavah is only of rabbinic force. In Babylonian Talmud, Ketubot 3a, when discussing the annulment of betrothal, the Gemara asks how the Sages can annul betrothal if it is from the Torah. The Gemara explains that with betrothal by money the matter is clear, but with betrothal through intercourse it is not clear how they can annul it. The Gemara answers: “The Sages rendered his intercourse licentious intercourse.”

On the Gemara’s remark that there is no problem with betrothal by money, Rashi cites his teachers as follows:

“The Sages rendered his intercourse” — retroactively, through a bill of divorce that is of rabbinic force, into licentious intercourse, and they have power to do so, for he made his act dependent on them. I heard all my teachers explain that if he betrothed with money, money-betrothal is rabbinic. But that cannot be said. First, it is a gezerah shavah — “taking” from “taking” from the field of Ephron (Babylonian Talmud, Kiddushin 2a) — and whatever is learned by gezerah shavah is, in every respect, as though it were written explicitly. Second, if it were rabbinic, how could they stone people on its account, and how could they bring non-sacred animals into the Temple courtyard because of inadvertent violations of it? …

— Rashi on Babylonian Talmud, Ketubot 3a, citing his teachers

Rashi’s teachers raise the possibility that something learned by gezerah shavah — betrothal by money is indeed learned by gezerah shavah; see our article on the Chayei Sarah portion, 5765 — is a rabbinic law, and therefore the Sages can uproot it. We find the same in Rashbam’s commentary to Babylonian Talmud, Bava Batra 48b, and in the novellae of Rabbi Gershom there.

The matter is even more explicit in Rashi on Babylonian Talmud, Gittin 33a:

“Licentious intercourse” — for they removed from her the very status of betrothal, and they have power to do this, since when he betrothed he did so according to the custom and law of their religion. This is how I explain it everywhere, on my own, and so I received from my teachers: whoever betroths does so subject to the Sages, for money-betrothal is rabbinic, since it is not written explicitly; rather, we derive “taking” from “taking” from the field of Ephron. That is why the Gemara asks: this works well if he betrothed with money; but if he betrothed through intercourse, which is written explicitly — “when a man takes a woman and cohabits with her” (Deuteronomy 24) — what can be said? How could they uproot a matter of Torah law? And it answers: the Sages rendered his intercourse licentious intercourse, for anyone who betroths through intercourse, as stated there (Babylonian Talmud, Kiddushin 12b): Rav would flog anyone who betrothed through intercourse because of licentiousness.

— Rashi on Babylonian Talmud, Gittin 33a, citing his teachers

Here Rashi’s teachers already state explicitly that money-betrothal is rabbinic because it is learned by gezerah shavah. Yet both Rashbam and his grandfather — Rashi, in both of these places, and see also Babylonian Talmud, Yevamot 90b, s.v. “He said to him” — reject this view entirely, because in their opinion something learned by gezerah shavah is “as though explicitly written,” in Rashi’s words here, just as we saw above in Nahmanides.

In any event, it also seems likely from these early authorities that they do not mean gezerah shavah specifically, but rather the hermeneutical principles in general. In their view, everything learned from the hermeneutical principles is of rabbinic force, following the aforementioned view of Maimonides. So too wrote the author of Megillat Esther in his commentary to the second root principle. This emerges from Rashi on Babylonian Talmud, Yevamot 90b, who rejects these views and writes:

Some say: this works well if he betrothed with money, for money-betrothal is rabbinic; but if he betrothed through intercourse, where the betrothal is biblical, what can be said? This is a grave error in their hands, for money-betrothal is biblical, and he learned it through the gezerah shavah of “taking” from “taking” from the field of Ephron in tractate Kiddushin (2a). A gezerah shavah was stated at Sinai, as were all thirteen hermeneutical principles…

— Rashi on Babylonian Talmud, Yevamot 90b

In other words, the discussion concerns gezerah shavah as part of the system of hermeneutical principles as a whole.

Sources Indicating That Gezerah Shavah Is Unique Relative to the Other Principles

Still, we do find several sources that imply gezerah shavah has a special status, more so than the other hermeneutical principles. For example, Maimonides, whose view we mentioned above, holds that all laws derived through the hermeneutical principles are of rabbinic force. In line with that view, Maimonides also claims that a prohibition derived through the hermeneutical principles does not count as a full scriptural prohibition. See the article on the Ki Tavo portion, 5766. Yet, as Nahmanides wondered in the passage cited above, we find in the Talmud prohibitions derived through gezerah shavah, and Maimonides himself cites them as legitimate prohibitions.

On this, the author of Kinat Soferim, in his commentary to the second root principle, writes that a gezerah shavah that comes to interpret Scripture certainly counts as though it were written explicitly in the Torah. This is the first type mentioned in Nahmanides’ words above; see our article on the Miketz portion, 5766. Only a gezerah shavah that introduces a new law is of rabbinic force.

The author of Lehem Mishneh, at the beginning of the Laws of Marriage, writes even more strongly:

It is very difficult for our master, of blessed memory, who says that money is only of rabbinic force. How, then, does the Gemara say there, concerning whether canopy acquires (5b), that it was not taught in the Mishnah because the cases in the Mishnah are written, whereas this one is not written? According to our master’s view, since canopy is learned from a common-denominator argument, one of the thirteen hermeneutical principles, it should be like money, which is learned by gezerah shavah. Just as canopy is not written, money too is not written and should be only rabbinic, yet it is nevertheless listed. Nahmanides already raised this difficulty. It seems to me, however, that a gezerah shavah is still called “written” more than a mah matzinu is, for we derive punishments and prohibitions from gezerah shavah, whereas from a mah matzinu and from a kal va-homer we do not derive punishments or prohibitions. Therefore, relative to a mah matzinu, gezerah shavah is called “written.”

— Lehem Mishneh, beginning of the Laws of Marriage

He challenges Maimonides as to why a mode of betrothal learned by gezerah shavah is considered biblical, unlike money-betrothal, which Maimonides classifies as rabbinic. He explains that gezerah shavah is indeed exceptional. Even according to the views of the early authorities — Maimonides and Rashi’s teachers — who hold that what is learned from the thirteen hermeneutical principles is of rabbinic force, gezerah shavah is biblical, since it is considered as though written explicitly in the Torah. See also Marganita Tava on the second root principle.

A Possible Rejection

The matter is not so simple. We find in Rashi on Babylonian Talmud, Pesahim 66a, s.v. “And since”:

“And since he learned it” — from his teachers, that this gezerah shavah came for this purpose; for we maintain that a person does not derive a gezerah shavah on his own unless it was received and came from Sinai, lest perhaps the verse came for something else. Since this is what he received, it is as though it were written explicitly in the verse itself. Why, then, did he need a kal va-homer, which is only a matter of reasoning from his own mind and heart?

— Rashi on Babylonian Talmud, Pesahim 66a

Rashi would seem to be a solid source for the above claim of Lehem Mishneh. But one must note that Rashi bases himself on the fact that a person does not derive gezerah shavah on his own. All laws learned by gezerah shavah were transmitted to us from Sinai, and therefore it is clear that they are biblical laws. If so, he does indeed distinguish gezerah shavah from the other principles, but the reason is technical: the product of gezerah shavah was transmitted to us from Sinai, and therefore the gezerah shavah is only an anchor after the fact — an exposition that supports rather than creates. Gezerah shavah has no intrinsic advantage as a hermeneutical principle.²

Let us note that Maimonides himself, in the second root principle, also points out that expositions which merely anchor laws received by tradition have a different status, and the laws derived from them are biblical. Commentators have already noted that, according to Maimonides, the rule “a person does not derive a gezerah shavah on his own” cannot be interpreted literally, for on that reading gezerah shavah would clearly not be of rabbinic force. Some of Maimonides’ commentators therefore suggested — see, for example, Kinat Soferim on the second root principle, and our articles on the Miketz portion, 5765–5766 — that he interprets this rule differently from Rashi: gezerah shavah may be expounded only by the Great Court, and not by every sage, unlike the other hermeneutical principles. On this reading, Maimonides does not accept Rashi’s argument here.

In any event, this argument shows that the distinctiveness of gezerah shavah vis-à-vis the other principles is not essential. Its superiority stems not from a unique logical or textual character, but from the tradition that supports it. Indeed, it may be that this itself arises from its hermeneutical weakness. According to this, even Lehem Mishneh’s claim about Maimonides does not necessarily mean that gezerah shavah is intrinsically superior, but rather that it was given to us through a Sinaitic tradition.

The Priority of Gezerah Shavah over Other Principles: Lamed Min Ha-Lamed

We have already noted more than once the rule that, in sacrificial law, one does not learn a “derived law from another derived law.” Something that is itself learned through a hermeneutical principle does not go on to teach something further through another hermeneutical principle. In the chapter “Which Is Their Place?” in tractate Zevahim, the Gemara reviews the various hermeneutical principles and examines, for each pair, whether they may be combined so that one can be learned from the other.

In that discussion, the Gemara deals with deriving a gezerah shavah from a hekkesh and a hekkesh from a gezerah shavah. See Babylonian Talmud, Zevahim 49b–50b. The Gemara brings a source showing that one does not derive a gezerah shavah from a hekkesh, for the Torah explicitly wrote concerning the guilt-offering that it requires slaughter in the north, although this could have been learned by gezerah shavah from the sin-offering. The reason is that in the sin-offering this rule itself is learned by hekkesh, and one does not derive a gezerah shavah from a hekkesh. There, on 50a–b, a dispute of amoraim is brought regarding the opposite question: can one derive a hekkesh from a gezerah shavah? Rabbi Pappa holds that one can, for we learned through gezerah shavah that peace-offerings may come from second tithe, and nevertheless we derive by hekkesh from peace-offerings that the thanksgiving-offering too may come from second tithe. Mar Zutra, however, holds that there is no proof from there, and in his view the matter remains doubtful.

In the article on the Vayigash portion, 5766, we argued that the rule “one does not learn a derived law from another derived law” expresses the fact that the hermeneutical principles are tools for interpreting the biblical text. Something that is not biblical text cannot be subjected to these principles.³ Therefore something learned through exposition — at least according to Maimonides, though not only according to him — is not considered part of the biblical text, and so it too cannot be reinterpreted by means of the hermeneutical principles. In that article we noted that there are principles whose results are treated as though written explicitly in Scripture — for example, a lexical hekkesh — and therefore from them one may indeed continue to derive through hermeneutical principles. We saw there that ordinary hekkesh is not among these.

If so, the conclusion is that the asymmetry between gezerah shavah and hekkesh expresses precisely the idea that gezerah shavah is considered as though written explicitly in Scripture, and therefore one may apply another hermeneutical principle, such as hekkesh, to its result. Hekkesh, however, is not considered as though written explicitly in Scripture, and therefore one cannot derive a gezerah shavah from it.

At first glance, this proof concerns a textual question, and it is therefore harder to base it on the rule that a person does not derive gezerah shavah on his own. Even so, the proof is still not conclusive, for it may be that only because of the tradition does gezerah shavah count as though explicitly written.⁴

Additional Sources for the Priority of Gezerah Shavah

We find the priority of gezerah shavah over the other hermeneutical principles in other contexts as well, not only in sacrificial law. This too points to its uniqueness. For example, Rashi on Babylonian Talmud, Kiddushin 34b, s.v. “Granted,” implies that gezerah shavah overrides binyan av. Tosafot on Babylonian Talmud, Sanhedrin 67b, s.v. “And since,” imply that gezerah shavah has priority over a derivation from juxtaposition, a type of hekkesh. As for hekkesh itself, the sugyot are contradictory; see Encyclopedia Talmudit, entry “Gezerah Shavah,” around notes 212–223. But all these phenomena can still be understood on the basis of the tradition that underlies gezerah shavah.

Thus, all the proofs we have brought so far can still be rejected, since all these sugyot can still be grounded in the rule that a person does not derive gezerah shavah on his own. According to this, the advantage of gezerah shavah stems from its being transmitted by tradition, not from a superior hermeneutical status. But in the next sugya we will see a proof that cannot be rejected in this way.

Gezerah Shavah and Kal Va-Homer

The Gemara in Babylonian Talmud, Pesahim 66b determines that where a gezerah shavah and a kal va-homer point in opposite directions, the gezerah shavah prevails.⁵ As we saw above, Rashi grounds this in the fact that gezerah shavah is transmitted by tradition and cannot be expounded merely at the discretion of the interpreter. But what happens when both derivations can be maintained together, although the result would be that the gezerah shavah is applied only partially?

At first glance, tannaim disagreed about this in the sugya in Babylonian Talmud, Hullin 115b–116a:

It was taught: Isi ben Yehudah says: From where do we know that meat cooked in milk is forbidden? It says here, “for you are a holy people,” and it says elsewhere, “you shall be holy men to Me, and flesh torn in the field you shall not eat.” Just as there it is forbidden, so here it is forbidden. But this teaches only eating; from where do we know benefit? You may argue by kal va-homer: if orlah, in which no transgression was committed, is forbidden for benefit, then meat in milk, in which a transgression was committed, should certainly be forbidden for benefit. But what can you say of orlah? It never had a time of permissibility. Leaven on Passover proves otherwise, for it did have a time of permissibility, and yet it is forbidden for benefit. But what can you say of leaven on Passover? It incurs karet. Vineyard mixtures prove otherwise, for they do not incur karet and yet they are forbidden for benefit. Why do I need the gezerah shavah? Let us derive the whole matter by kal va-homer from orlah: if orlah, in which no transgression was committed, is forbidden both in eating and in benefit, then meat in milk, in which a transgression was committed, should certainly be forbidden both in eating and in benefit. Because one can say: plowing with an ox and a donkey together, and muzzling a cow while threshing with it, prove otherwise — a transgression is committed with them, and yet they are permitted. Why do I say, “Vineyard mixtures prove otherwise”? Let me say, “Orlah proves otherwise”…

The Mishnah is not in accordance with this tanna, for it was taught: Rabbi Shimon ben Yehudah says in the name of Rabbi Shimon: meat in milk is forbidden in eating and permitted in benefit, as it says, “for you are a holy people,” and it says elsewhere, “you shall be holy men to Me.” Just as there it is forbidden in eating and permitted in benefit, so here it is forbidden in eating and permitted in benefit.

— Babylonian Talmud, Hullin 115b–116a

According to Isi ben Yehudah, meat cooked in milk is forbidden both in eating and in benefit. According to Rabbi Shimon ben Yehudah in the name of Rabbi Shimon, it is forbidden in eating but permitted in benefit. Tosafot there, s.v. “Just as,” ask: according to Rabbi Shimon, why does he not also derive a prohibition of benefit by kal va-homer, just as Isi ben Yehudah does? In their first answer Tosafot explain:

“Just as there it is forbidden in eating and permitted in benefit” — although one can derive the prohibition of benefit by kal va-homer, as above, he holds that there is no half-gezerah shavah, and therefore he derives from it even the permission of benefit. The earlier view, however, holds that the gezerah shavah helps and the kal va-homer helps.

— Tosafot on Babylonian Talmud, Hullin 116a, s.v. “Just as”

That is, according to Isi ben Yehudah it is preferable to use both the gezerah shavah and the kal va-homer, even at the cost of leaving the gezerah shavah only partial. According to Rabbi Shimon ben Yehudah, in such a situation we expound the gezerah shavah in full so as not to contradict the principle that there is no half-gezerah shavah, and we set aside the kal va-homer.

This is a far-reaching claim, much more so than what we found in the sugya in Pesahim. There, there was no option that would leave both the gezerah shavah and the kal va-homer in place. Here, by contrast, there was an available solution that would preserve both, and nevertheless Rabbi Shimon rejects the kal va-homer because of the rule that there is no half-gezerah shavah. The gezerah shavah completely overrides the kal va-homer.

As Nahmanides noted — see our article on the Miketz portion, 5765, and its implications in the article on the Vayishlah portion, 5766 — according to all views a person can, in some sense, expound gezerah shavah on his own. Even those who follow Rashi and not Maimonides, and require a Sinaitic tradition, do not mean that tradition supplies everything. Sometimes it transmits the source for the gezerah shavah but not what is to be learned from it. Sometimes it transmits what is to be learned, but not the gezerah shavah itself. Sometimes one side of the gezerah shavah is transmitted and we must identify the other side, and so forth. One of Nahmanides’ proofs is that we find disputes among the Sages concerning gezerah shavah, and this shows that at least in those cases there was no binding tradition about them.

What, then, happens in the sugya of meat in milk? We see that there was no clear tradition regarding the prohibition of benefit, since there is a dispute about it. If so, this gezerah shavah was not transmitted from Sinai. Yet they still expound gezerah shavah there and discuss how to balance it against a kal va-homer. Moreover, even in a situation where there is no tradition and we are expounding it ourselves, Rabbi Shimon still concludes that gezerah shavah overrides the kal va-homer. Isi ben Yehudah too holds that the gezerah shavah is not cancelled in favor of the kal va-homer, even though it will remain only partially applied, against the rule that there is no half-gezerah shavah. Commentators have already noted that the second answer in Tosafot there — and likewise Tosafot, s.v. “You may argue,” on Babylonian Talmud, Pesahim 24b — holds that according to everyone, including Isi ben Yehudah, gezerah shavah fully overrides even in such a case. See there carefully, and Encyclopedia Talmudit, entry “Gezerah Shavah,” around notes 209–210.

Thus we find here a priority of gezerah shavah over kal va-homer that cannot be grounded in a received tradition concerning that particular gezerah shavah. This is evidence of a genuine hermeneutical superiority of gezerah shavah over kal va-homer, independent of the rule that a person does not derive gezerah shavah on his own.

The Dispute in the Sugya of “The Best”: Does Gezerah Shavah Only Fill Lacunae?

The Gemara in Babylonian Talmud, Bava Kamma 6b — and compare Gittin 49a — discusses compensation for damages. The Torah obligates a damager to pay from the best of his field. Rabbi Ishmael and Rabbi Akiva dispute whether this means the best field of the damager or the best field of the injured party:

To pay compensation for damage. The Sages taught: “The best of his field and the best of his vineyard he shall pay” — the best of the injured party’s field and the best of the injured party’s vineyard; this is the view of Rabbi Ishmael. Rabbi Akiva says: Scripture came only to allow collection for damages from superior land… Rather, Rav Aha bar Yaakov said: here we are dealing with a case where the injured party’s superior land was equivalent to the damager’s inferior land, and on this they disagree. Rabbi Ishmael holds: the appraisal is according to the injured party; Rabbi Akiva holds: the appraisal is according to the damager.

What is Rabbi Ishmael’s reason? “Field” is stated below, and “field” is stated above. Just as the “field” stated above refers to the injured party, so the “field” stated below refers to the injured party. And Rabbi Akiva? “The best of his field and the best of his vineyard he shall pay” — of the one who is paying. And Rabbi Ishmael? The gezerah shavah helps, and the verse helps. The gezerah shavah helps, as I said. The verse helps in a case where the damager has superior and inferior land, and the injured party has superior land, and the damager’s inferior land is not worth as much as the injured party’s superior land, so that he pays him from his own superior land; for he cannot say to him, “Come collect from inferior land,” but rather he must collect from superior land.

— Babylonian Talmud, Bava Kamma 6b; compare Gittin 49a

Rabbi Ishmael adduces in his favor the gezerah shavah “field”–“field,” which teaches that we are speaking of the injured party’s field. Rabbi Akiva learns from the plain sense of the verse that the meaning is the damager’s field. The question now arises: what does each side do with the other side’s consideration?

The Gemara explains as follows. According to Rabbi Ishmael, we have the plain sense of Scripture and we also have a gezerah shavah, and their conclusions conflict. Therefore we derive one law from the gezerah shavah and an additional law from the plain meaning of Scripture. From the gezerah shavah we learn that in a case where the superior land of the injured party is equivalent to the inferior land of the damager, the obligation is measured by the injured party’s superior land — that is, according to the best field of the injured party and not of the damager. From the verse itself we learn the law in a different situation: when the damager has superior and inferior land, while the injured party’s superior land is worth more than the damager’s inferior land, meaning that for the damager it counts as middle-quality land. In that situation the damager must pay according to his own superior land, in accordance with the plain meaning of Scripture.

From the Gemara it is not clear what Rabbi Akiva does with the gezerah shavah. Presumably he did not have a tradition that this gezerah shavah must be expounded, for had he possessed such a tradition he would not have disputed it. Yet the sugya seems to imply that he does not reject the gezerah shavah as invalid in itself. Were it not for the plain meaning of Scripture, it would apparently have seemed acceptable even to him. Even so, as a matter of law he rules in accordance with the plain meaning of the verse and not the gezerah shavah. Rashi explains:

“The best of the field of the one who pays” — that is, the field of the damager. The gezerah shavah does not come and uproot the verse.

— Rashi on Babylonian Talmud, Bava Kamma 6b

Although the gezerah shavah seems valid even to Rabbi Akiva, he is not prepared to displace the plain meaning of Scripture by the force of a gezerah shavah.⁶

One should note that Rabbi Ishmael too agrees that the plain meaning of Scripture conflicts with the gezerah shavah he proposes, and yet in his view one may act against the plain meaning on the strength of the gezerah shavah. As we inferred above, here too there is no tradition concerning this gezerah shavah, at least according to Rabbi Akiva.

Moreover, simple inspection suggests that there is no mufneh word here, since the word “field” is needed for the plain sense in both contexts. If so, there is not even a special pressure that would force us away from the plain meaning in the absence of tradition; the only factor is the presence of two similar words that serve for a gezerah shavah.

We thus learn that Rabbi Ishmael understands gezerah shavah as something that creates a real constraint. Gezerah shavah does not merely fill lacunae, that is, teach unknown laws. In his view, if there is a gezerah shavah, then we alter the plain sense of the text, and the law follows the gezerah shavah. To be sure, the alteration must be made in a way that leaves the plain sense standing as well: “the gezerah shavah helps and the verse helps.” We never entirely remove a verse from its plain meaning and replace it with the results of the gezerah shavah. See examples in Tosafot, s.v. “Seven days,” on Babylonian Talmud, Shabbat 131b, and Tosafot, s.v. “When it says,” on Babylonian Talmud, Sanhedrin 3b. This conclusion requires us to reexamine our claim from last year regarding the directionality of gezerah shavah, which we attributed to the location of the lacuna within the Torah.

Gezerah Shavah Against the Plain Meaning of Scripture: Babylonian Talmud, Yevamot 24a

Only in one place have we found that the Sages accepted that gezerah shavah removes a verse entirely from its plain meaning. The Gemara itself states that this is the only exception to the rule that “a verse does not depart from its plain meaning.” The source is the sugya in Babylonian Talmud, Yevamot 24a, where the Gemara discusses the verse instructing us concerning levirate marriage: “And it shall be that the firstborn whom she bears shall arise in the name of his dead brother.” According to the plain sense, the firstborn child who will be born should be given the name of the dead brother. But the gezerah shavah teaches us that this verse speaks about inheriting the dead brother’s property, and that the figure referred to in the verse is the brother performing levirate marriage, not the child who will be born, as the plain sense would suggest.

The Gemara objects on the basis of the rule that “a verse does not depart from its plain meaning.” It answers that they had a tradition that here the gezerah shavah removes Scripture from its plain meaning.

Rashi there explains the Gemara’s objection:

“A verse does not depart from its plain meaning” — and although we expound it midrashically, it still does not completely depart from its plain meaning.

— Rashi on Babylonian Talmud, Yevamot 24a

He then adds that in this case the plain meaning is entirely uprooted:

“And you have removed it completely” — for there is no need to call his son by the name of his dead brother; thus he learned it from his teacher.

— Rashi on Babylonian Talmud, Yevamot 24a

From his wording, it does seem that here too he attributes this to the unique character of a gezerah shavah that reaches us through tradition; the received tradition instructs us to remove the verse from its plain meaning.

The Ritva, by contrast, explains the Gemara’s question differently:

Even though throughout the Torah a verse does not depart from its plain meaning. That is, wherever the two do not contradict one another, we uphold both. Here it would have been possible to uphold them both, and yet we do not obligate the plain meaning of the verse at all; rather, this is a matter received by tradition, as Rashi of blessed memory explained.

— Ritva on Babylonian Talmud, Yevamot 24a

According to this, a verse does not depart from its plain meaning only where the gezerah shavah does not contradict that plain meaning. If so, this is not the sole example of gezerah shavah removing a verse from its plain meaning. What is unique here is that it does so even though one could have continued to interpret the verse according to its plain meaning as well. The law that the brother stands in place of his dead brother for inheritance does not contradict the law that the firstborn child should be called by the dead brother’s name. Here we are instructed to remove the verse entirely from its plain meaning and retain only its midrashic interpretation. In every place where the plain sense cannot stand together with the gezerah shavah, the gezerah shavah removes the verse from its plain meaning and cancels the plain-sense interpretation.

Comparison to the Sugya of “The Best”: Gezerah Shavah versus the Plain Meaning of Scripture

All this was said regarding a situation in which gezerah shavah displaces the plain meaning of Scripture. In Rabbi Ishmael’s position in the sugya of “the best,” the plain meaning of Scripture also teaches us something, and the gezerah shavah merely adds to it. In such a case, we saw that this can happen even without a tradition concerning the gezerah shavah. In any event, it is clear that in Rabbi Ishmael’s case the gezerah shavah certainly removes the verse from its plain meaning and does not merely add to it, for the plain sense of the verse teaches that the damager must always pay according to the best of his own field in every case. If so, the novelty is double: not only is there here no lacuna to be filled, but the result of the gezerah shavah actually contradicts what emerges from the plain sense of the verse. Even so, we apply the gezerah shavah, even though we had no tradition concerning it.

As we noted above — and so too writes the Ritva whom we cited — in the sugya in Yevamot there was no need at all to remove the verse from its plain meaning. One could have said that from the plain sense we learn that the firstborn child should be given the name of his dead uncle, and in addition learn from the gezerah shavah an additional law concerning inheritance. If so, why does the gezerah shavah really force us to remove the verse from its plain meaning?

Two Ways to Understand the Exceptional Character of the Derashah in Yevamot

One might say that the tradition received here contained two distinct instructions: it transmitted the gezerah shavah — that is, the midrashic plane — and it also instructed us to remove the verse from its plain meaning — that is, to cancel the plane of peshat. This is what emerges from the words of Rashi cited above, and likewise from the Ritva passage just quoted.

But among some of the early authorities we find that they did not explain the matter this way. According to the Ritva himself in the very next comment, and according to Rashba and others there, the Gemara understood that once the gezerah shavah interprets the verse in one way, it no longer allows the verse to be read in an additional plain-sense way. That is, the tradition did not transmit two instructions. It transmitted only the gezerah shavah, and by its force we were compelled to remove the verse from its plain meaning.

According to these views, the removal of the verse from its plain meaning is not learned from a special scriptural decree. According to the Ritva, the Rashba, and their school, the gezerah shavah grants the verse a different meaning, according to which the person referred to in the verse is not the child who will be born to the levirate widow, but the levir himself. Once that is so, we are no longer reading the verse according to the plain-sense interpretation in which it refers to the child who will be born. It is as though the verse explicitly said: “he shall arise in the name of his dead brother for inheritance.” The plain-sense reading thereby falls away.

Now, if indeed there was no special instruction to do this, then there must be a general rule here: whenever gezerah shavah offers a reading of Scripture that contradicts the plain-sense reading, then even if the laws learned from the two readings do not contradict one another, the law emerging from the plain-sense reading is nullified. In such cases we do not implement both interpretations together, even though at the halakhic level we might have done so. The midrashic reading becomes, de facto, the peshat.

The Ritva, in his comment beginning “Rather, it comes,” even adds that the person who explained here that “this is a matter received by tradition” was not correct.

How is this to be reconciled with his earlier claim, cited above, that this is indeed a matter received by tradition, in line with Rashi? It appears that the answer lies in distinguishing between two different planes of discussion. There may be a contradiction between two readings of the verse — the plain reading and the midrashic reading — and there may be a contradiction between the laws that emerge from those two readings. One should note that in our case the laws that emerge from the two readings do not contradict one another: it would certainly have been possible to rule both that the firstborn child should be called by his uncle’s name and that the levir takes the dead brother’s place for inheritance. There is no contradiction between those two laws. This is what the Ritva meant in the passage cited above when he wrote that here it would have been possible to uphold both. But in terms of the two ways of reading the verse — the plain and the midrashic — there is a contradiction: if the reference is to the brother, then it is not to the child who will be born, and vice versa.

In such a case, one might have said that although the two readings conflict, since the laws do not conflict we may adopt both. The Ritva determines that we may not. It is enough that the readings themselves conflict for us not to adopt both laws, even if the laws themselves do not contradict one another. It seems that only this point, according to the Ritva, rests not on received tradition but on straightforward logic.

Conclusions from the Ritva

The conclusion that emerges from the Ritva is that in cases where there is no legal contradiction between peshat and derash, we in practice uphold both interpretations together. Here, however, this is the one exceptional case in which we cancel the peshat even though on the legal plane it does not contradict the derash. Why do we do so? Either because there is a special traditional instruction to do so specifically here. If so, the conclusion would be that in all other places we do not take the interpretive contradiction into account, for peshat and derash run on parallel tracks that do not meet, and therefore we rule both laws together if they do not conflict. But in situations where there is a contradiction between the different legal conclusions, then the midrashic reading is always set aside before the plain meaning.⁷

Alternatively, if the Ritva means to say that the removal of the verse from its plain meaning here is a consequence of the interpretive contradiction itself, even without any legal contradiction, then the exceptional character of this derashah is only accidental: only here do we find a case in which a midrashic interpretation of a verse contradicts its plain-sense interpretation, and therefore only here were we forced to remove the verse from its plain meaning. In all other cases no such contradiction arose, and therefore there was no need to remove the verse from its plain meaning. But in principle, whenever there is an interpretive contradiction, we would always have to remove the verse from its plain meaning.

According to this suggestion, the reason this derashah in Yevamot is unique is that in all other gezerah shavot, the actual situation is that reading the verse by means of the gezerah shavah does not prevent its plain-sense reading. For example, in the sugya of “the best,” even after the gezerah shavah “the verse still helps,” since the gezerah shavah and the verse speak of different situations.⁸

Conclusions Regarding Gezerah Shavah

The second conception we proposed, which emerges in the Ritva — at least as a possibility — and in the Rashba, is a very strong expression of the view that gezerah shavah is indeed an exceptional hermeneutical principle, since it is treated as though explicitly written in Scripture. According to this approach, in certain cases the midrashic reading of the verse is itself the binding reading, and the plain-sense reading is nullified. Therefore, even if the law implied by the plain sense does not contradict the law implied by the derash, we do not rule that law in practice. The verse in its plain sense is simply not standing before us; only the verse as interpreted by the derash — that is, according to the reading that emerges from the gezerah shavah — is before us.

It follows that gezerah shavah does not merely fill lacunae, as we wrote in last year’s article, but sometimes also changes what stands in the text. It can actually replace the peshat. As noted, the question of the directionality of gezerah shavah, which we had attributed to the filling of lacunae, must therefore be reconsidered.

C. A Source for an Essentialist Conception of Gezerah Shavah

Introduction

In last year’s article we touched briefly on the question whether gezerah shavah is an essential comparison or not. Here I will make a short remark, from an interesting angle, on that question, and point to several sources indicating that at least the gezerah shavot under discussion there are essential and not merely formal.

Gezerah Shavah and Distinguishing Sin-Offerings

In the article on the Ki Tavo portion, 5766, we discussed the prohibition against self-affliction on Yom Kippur. We saw there that Maimonides apparently understood that the punishment explicitly written in Scripture — “and that soul shall be cut off” — teaches us that the prohibition of self-affliction, which is learned by gezerah shavah from labor, is valid.

The Mishnah in Yoma 81a states:

If one ate and drank in one lapse of awareness, he is liable for only one sin-offering. If he ate and performed labor, he is liable for two sin-offerings.

— Mishnah, Yoma 8:1

There are two laws in the Mishnah:
1. One who eats and drinks in one lapse of awareness is liable for one sin-offering.
2. One who eats and performs labor in one lapse of awareness is liable for two sin-offerings.

Maimonides, however, in the Laws of Inadvertent Transgressions 6:5, cites the law that one who ate and drank is liable for one sin-offering, but does not cite the law that one who ate and performed labor is liable for two sin-offerings. Apparently, his intention is that in this case too one is liable for one sin-offering, not two.⁹

Perhaps this can be explained in light of the Gemara in Babylonian Talmud, Keritot 3b, which writes that if two prohibitions are learned by gezerah shavah — slaughtering and offering up — they are regarded as two distinct prohibitions. Maimonides does not cite this as practical law, and apparently he holds that this is really one prohibition.

This could have been understood in one of two ways: either because one is merely an extension of the other, or because a prohibition learned by gezerah shavah is not really a Torah prohibition. But if the second possibility were correct, then one of the two would not be forbidden by Torah law at all, and would not incur a sin-offering. That is certainly not our case here, and therefore the first possibility is clearly the relevant one: both eating and labor on Yom Kippur are biblical prohibitions, but they are not distinct for purposes of separate sin-offerings.

Thus, although Maimonides counts labor and self-affliction as two separate prohibitions, since self-affliction is learned from labor by gezerah shavah, it is not distinct from it for purposes of sin-offering liability. One who does both in one lapse of awareness is liable for one sin-offering, exactly like someone who committed the same transgression twice in one lapse of awareness.

Two Proofs

Indeed, we find that Abaye in two places rules that what is learned by gezerah shavah counts as one prohibition together with that from which it is learned. I will cite them briefly, without elaboration:

1. Babylonian Talmud, Sanhedrin 54b. See Rashi, s.v. “But from where do we know,” regarding the passive and active participants, and Maimonides rules likewise in the Laws of Inadvertent Transgressions 5:3.¹⁰ See Hazon Ish, Keritot 37:5.
2. Babylonian Talmud, Sanhedrin 34b, regarding slaughtering and sprinkling, and see Rashi there. Admittedly, in the case of slaughtering and sprinkling these are two matters both learned from a hekkesh to offering up, and not one from the other, and therefore the proof can be rejected. However, the Ran, in his novellae there, wrote that the same rule applies also to sprinkling and offering up. See also Maharsha there.

Summary and Conclusions

We have seen that according to Maimonides, when there is an explicitly written punishment, then even a prohibition learned by gezerah shavah is counted in the enumeration of the commandments. But it may be that for the purpose of receiving two punishments, or two sin-offerings, the two prohibitions are not distinct, since the prohibition of self-affliction ultimately emerges by gezerah shavah from labor.

From here one may perhaps derive what Maimonides wrote at the beginning of the Laws of the Rest of the Tenth Day: that self-affliction on Yom Kippur is also a kind of cessation, and that the combination of the two is what Maimonides calls “the rest of the Tenth Day.” Maimonides understood that self-affliction and labor share the same essential root, and perhaps the reason is that self-affliction is learned by gezerah shavah from labor. Since they are not distinct for separate sin-offerings, even though they are two prohibitions, we understand that the root of the prohibition in both is one. From this Maimonides inferred that together they define a different kind of rest. Unlike the laws of Festival rest and the laws of the Sabbath, here there is “the rest of the Tenth Day,” which is elaborated in separate laws.

The conclusion for our purposes is that when one prohibition is learned from another by gezerah shavah, one may infer that their underlying root is one. In other words, gezerah shavah — at least in this case — is an essential comparison and not merely a formal transfer of laws between different contexts.

Footnotes