Nitzavim (5764)

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 — Friday eve of Parashat Nitzavim, 5765

Questions

1. Is reconstructing a halakha (a rule of Jewish law) that was given at Sinai an expansion of the Torah?
2. What is the difference between “These are the commandments” and “It is not in heaven”?
3. Why is the Torah prepared to let us act incorrectly, so long as we do not turn to heaven and prophecy?
4. On the obligation to be rational and autonomous.
5. On the conceptualization, generalization, and formalization of language and of the hermeneutical principles. Or: Did Moses our Teacher know what a gezerah shavah, that is, a verbal analogy, is?
6. What is pilpul (dialectical analysis)?

The Hermeneutical Principles: The General Principle

It is not in heaven, that you should say: Who will go up for us to heaven and take it for us, and make us hear it, so that we may do it?
(Deuteronomy 30:12)

These are the commandments that the Lord commanded Moses for the children of Israel at Mount Sinai.
(Leviticus 27:34)

“The prescribed measures relevant to punishments are a halakha given to Moses at Sinai. Others say that the court of Jabez enacted them. But is it not written, ‘These are the commandments’—from now on a prophet is not permitted to innovate anything? Rather, they forgot them and then reestablished them. The final forms of mem, nun, tzadi, peh, and kaf were stated by the seers. But is it not written, ‘These are the commandments’—from now on a prophet is not permitted to innovate anything? Rather, they forgot them and then reestablished them.

Rav Yehudah said in the name of Shmuel: Three thousand halakhot were forgotten during the days of mourning for Moses. They said to Joshua: Ask. He said to them, ‘It is not in heaven.’ They said to Samuel: Ask. He said to them, ‘These are the commandments’—from now on a prophet is not permitted to innovate anything.

Rabbi Yitzhak Nappaha said: Even the law of a sin-offering whose owner died was forgotten during the days of mourning for Moses. They said: Let Pinhas ask. He said to them, ‘It is not in heaven.’ They said to Eleazar: Ask. He said to them, ‘These are the commandments’—from now on a prophet is not permitted to innovate anything.”

Rav Yehudah said in the name of Rav: “When Moses departed for the Garden of Eden, he said to Joshua: Ask about every uncertainty you have. He said to him: My master, did I ever leave you even for one hour and go elsewhere? Did you not write about me, ‘And his attendant Joshua son of Nun, a youth, would not depart from the tent’?

Immediately Joshua’s strength weakened; three hundred halakhot were forgotten by him, and seven hundred doubts arose for him. All Israel sought to kill him. The Holy One, blessed be He, said to him: It is impossible to tell you. Go and occupy them with war, as it is said, ‘And it came to pass after the death of Moses…’ and it is written, ‘Within three days prepare provisions for yourselves.’

And it was taught: Even one thousand seven hundred doubts involving verbal analogies, a fortiori inferences, and scribal nuances were forgotten during the days of mourning for Moses.

Rabbi Abbahu said: Nevertheless, Othniel son of Kenaz restored them through his pilpul, as it is said, ‘And Caleb said: Whoever strikes Kiriath-sepher…’ and it is written, ‘And Othniel son of Kenaz captured it.'”

Yalkut Shimoni, Bechukotai, sec. 782; Joshua, sec. 4¹

A. “It Is Not in Heaven”: Prophecy and Adding to the Torah

Introduction

In the baraita cited above, a situation is described in which many halakhot were seriously forgotten during the days of mourning for Moses: 1,700, 300, or 3,000, depending on the source. The forgetting was apparently caused by the mourning, since Torah study is forbidden during such days. Beyond that, the Yalkut describes an additional forgetting that was imposed as a punishment on Joshua.²

As for the 3,000 halakhot that were forgotten during the days of mourning for Moses, it is not clear what became of them. But regarding the 1,700 verbal analogies, a fortiori inferences, and scribal nuances, it is said that Othniel son of Kenaz restored them through his pilpul. The Yalkut’s context deals with the forgetting of halakhot in general and with their restoration. That is our topic this week.

The fundamental problem in such a process, beyond the question of how to carry it out, is the problem of authority and legitimacy. There is a rule rooted in a verse from this week’s Torah portion: “It is not in heaven.” On its face, this seems to be a metaphorical statement about the accessibility of the Torah. But the Sages derive from it a meta-halakhic rule: prophecy cannot innovate halakhot.

Thus, on the one hand, this verse strengthens the claim that we can restore what was forgotten through our own pilpul, for “it is not in heaven.” The Torah is meant to be accessible to us. On the other hand, this same rule also limits the methods we may use for that purpose. If a prophet restores what was forgotten by means of prophecy, his words are rejected outright, by force of that very verse. We would say to him: “It is not in heaven.” We ourselves must restore the loss; in this case, only the prisoner himself can free himself from prison.

Therefore the midrash raises the possibility that the forgotten material might be restored through prophecy, but rejects that possibility out of hand. It then describes the reconstructive pilpul of Othniel son of Kenaz with respect to the forgotten halakhot, and here, of course, no problem arises either of “It is not in heaven” or of “These are the commandments.”

What Is the Difference Between “It Is Not in Heaven” and “These Are the Commandments”?

In the midrash, two different sources appear for the rule that halakhot may not be accepted on the basis of prophecy:³

The first is the verse in our Torah portion: “It is not in heaven.” From this it appears that after the giving of the Torah, Torah must be generated on earth and not continue descending from heaven. Any problem that arises here is supposed to be solved solely by our own powers. The well-known sugya of the Oven of Akhnai, in Babylonian Talmud, Bava Metzia 59b, is a classic example: there the Sages reject the possibility of deciding a halakhic dispute on the basis of heavenly signs, however unambiguous they may be.

Many ask about this rule:⁴ How can Elijah the prophet, when he comes to announce the coming of the Messiah, resolve difficulties and unanswered questions—the popular folk etymology of teiku—if prophecy may not be used either to create halakhot or to solve halakhic problems? The common explanation is that Elijah will teach us the solution through ordinary methods of study and reasoning, not reveal it to us by virtue of prophecy. Elijah is also a great Torah scholar, not only a prophet, and in that capacity his standing is no less than that of any other sage.

The second source is the verse “These are the commandments,” cited above, from which the Sages learn that a prophet cannot innovate anything whatsoever. This verse seems to bear a somewhat different meaning from the previous one. At first glance, the problem here is not specifically that the innovator is a prophet. Rather, even a prophet cannot innovate anything beyond the set of commandments that we received at Sinai. The principle is that one may not add halakhot beyond “these.”

One can see in this rule an implicit statement of principle about the completeness of the Torah. What binds us is only what is found in the Torah. Anything added to it does not belong to the Torah, and we may not attach it to the Torah.³

Here a possible difference between these two sources emerges. If the true basis of the prohibition is “These are the commandments,” then it is not clear why there should be any problem in asking, through prophecy, about halakhot that were forgotten. Seemingly this is the restoration of halakhot that were given at Sinai, not the addition of new halakhot. By contrast, the second source, “It is not in heaven,” forbids any halakhic recourse to heaven, whether for reconstructing existing halakhot or for creating new ones. That prohibition is therefore relevant to processes of reconstruction as well.

Implications: The Course of Our Midrash

In our midrash, the opening presents two situations in which prophetic reconstruction was invoked: the court of Jabez regarding the prescribed measures for punishments, and the final letter-forms as restored by the seers. In both cases the problem raised was “These are the commandments,” not “It is not in heaven.” That problem is resolved by saying that the halakhot in question were not new; rather, forgotten halakhot were being reconstructed. The problem of “It is not in heaven” is not mentioned at all, apparently because from the outset it was clear that the prophetic medium had not been used here. From the very beginning, the midrash understood the case as one of establishing halakhot through a court of prophets. Yet such creation is also forbidden, because we have only these commandments, and no more—whether the addition is made by prophecy or by wisdom. According to the midrash’s conclusion, however, this was merely a restoration of halakhot given at Sinai, and thus the problem of “These are the commandments” was solved as well. As noted, the term “establishment” probably expresses creation by wisdom rather than by prophecy.

Immediately afterward, the midrash presents another case of forgetting: the halakhot forgotten during the days of mourning for Moses. Here Israel turns to prophets in order to ask heaven—in other words, to reconstruct the forgotten halakhot by prophecy. In this case the midrash forbids it categorically, even though here too the issue is reconstruction. As the rationale and source for the prohibition, two opinions are cited: one anchors itself in the verse “These are the commandments,” and the other in “It is not in heaven.”

Against the background of the opening of the midrash, it is not clear why the verse “These are the commandments” should serve as a basis for prohibition here. After all, no new halakhot are involved, only the reconstruction of halakhot given at Sinai, and in that there should be no difficulty. Indeed, one opinion—the Joshua-Pinhas view—holds that there is only a problem of “It is not in heaven,” exactly as we suggested, because this is not halakhic innovation but reconstruction.

Still, one could ask why reconstruction should involve a problem of “It is not in heaven,” given that in the first two cases we saw that reconstructing a halakha given at Sinai does not suffer from that problem.

The solution is what we already noted above: the problem of “It is not in heaven” does not arise at all if one does not use the prophetic medium. Here the prophetic medium was used—not “they restored and reestablished,” but “they prophesied and restored”—and therefore, although what is at issue is the reconstruction of an existing halakha, there is still a problem of “It is not in heaven.”

However, the midrash here also contains another opinion—the Eleazar-Samuel view—which sees such a situation as a problem of “These are the commandments.” How does that fit with the opening passage of the midrash, where we saw that reconstruction as such does not touch the law of “These are the commandments”?

It seems that according to the Eleazar-Samuel view, in these cases the problem of “These are the commandments” also arises because the medium the prophets were asked to use was prophetic. As noted, they were asked to inquire in heaven, not to think and draw conclusions. They were expected to prophesy the restoration of the halakhot, not to reestablish them by means of the tools of wisdom. From this a new point emerges: at least according to the Eleazar-Samuel view, when the medium is prophetic there arises not only a problem of “It is not in heaven” but also a problem of “These are the commandments.”

Why should the character of the medium affect the prohibition of “These are the commandments”? Above we explained the essence of the prohibition as the addition of commandments beyond “these.” If so, why should the medium matter? It seems that according to this opinion, when halakhot are generated through prophetic interaction they count as newly created halakhot. If they are only hinted at in the Torah, but in order to uncover them we need prophetic tools, then they are considered something not contained in the Torah—at least from our perspective—and therefore newly created halakhot beyond the Torah. That is what it means to violate the principle of the completeness of the Torah embodied in the verse “These are the commandments.”

The new insight here is that according to the Eleazar-Samuel view, adding to the Torah is defined not by the Torah as it was given to us at Sinai, but by the Torah as it is presently in our hands. Adding to that corpus—not to what was originally given at Sinai—is what constitutes an injury to “These are the commandments” and to the completeness of the Torah. When one adds to that corpus by means of wisdom, however, the addition is extracted from within it and therefore is not considered an external addition. It is included within “these” commandments.⁴

The Difference Between the Two Prohibitions According to the Eleazar-Samuel View

We must now clarify the difference between these two prohibitions according to these views. As we have seen, according to the Eleazar-Samuel view every use of prophecy involves violation of both prohibitions. If so, it would seem that the two prohibitions completely overlap.

And yet, it seems that the character of the two prohibitions is different, even according to these views. As we explained, “It is not in heaven” is a prohibition against resorting to the prophetic medium when solving halakhic problems, whereas “These are the commandments” is a prohibition against innovating halakhot beyond what is found in the Torah transmitted to us.

However, as we have seen, every innovation of halakha through prophecy violates both prohibitions together. Prophecy is considered an addition to “these” commandments. If so, it is not clear whether any substantive principled difference between the two prohibitions remains.

In one direction the matter is clear. If one innovates a new halakha not by means of prophecy, one violates only “These are the commandments,” not “It is not in heaven.” Is there a case in which one violates only “It is not in heaven” and not “These are the commandments”? It would seem that if we resort to heavenly signs to decide a halakhic dispute—as in the sugya of the Oven of Akhnai—we violate only “It is not in heaven.”⁵

B. The Commandment of Rationality

Introduction

The midrash we cited yields a startling insight: the Torah prefers that we not know the halakha, even though this entails the risk that we will violate Torah prohibitions and neglect Torah commandments, so long as we do not use prophecy in our halakhic deliberations. Prophecy could help us restore halakhot that were forgotten, but Joshua and Pinhas and Eleazar and Samuel and all the great leaders of the nation refrain from using these tools despite the risk. More than that: the midrash seems to indicate that the halakhot forgotten there were never restored at all. To this day part of the Torah is missing from our possession, and the prophets refrain from using their prophetic instrument in order to complete what is lacking.

What value lies in refraining from using prophecy in our halakhic deliberations? Why is that value weighty enough to justify even acts of Sabbath desecration and the transgression of severe prohibitions?

Of course, the integrity of the Torah in our possession is an important value: that we neither add to it nor detract from it. There is also the fear that additions might be made in charlatan fashion, not by properly authorized prophets. But that still cannot explain such an extreme approach, one that prevents even the greatest prophets from completing what is lacking or forgotten in Torah and halakha.

Rationality and Autonomy

It would seem that the counter-value is the value of rationality, or autonomy. The Torah expects us to act in the halakhic realm solely on the basis of rational considerations that are intelligible to us: by wisdom and not by prophecy. The Torah given to us—or more precisely, the Torah that is presently in our hands—constitutes a database, or an axiomatic system, from which we are supposed to infer conclusions solely by means of our human intellect.

If so, in the state that exists after the giving of the Torah, we are commanded to fulfill the will of the Torah as it is in our possession, and not necessarily the will of God as it was expressed at Mount Sinai—though of course that itself is His will. If we forget something, we must complete it only in light of the data in our hands: the Torah in our possession, together with our reasoning and logic.

Implications

This approach has several implications. For example, Magen Avraham, in the laws of tefillin, Orah Hayyim 25:20, rules that when there is a contradiction between the revealed halakha and the halakha according to the esoteric tradition, we must act in accordance with the revealed halakha.⁶ Here too there seems to be an approach according to which halakha does not necessarily reflect the truth, but rather what we understand it to be.

Another principled implication is found in an apparently polar dispute between the Maharal of Prague and Rabbi Joseph ibn Migash.⁷

The Maharal, in his book Netivot Olam, in Netiv ha-Torah, toward the end of chapter 15, writes as follows:¹⁰

“It is more fitting and more correct that one should issue rulings out of the Talmud. Although there is reason to fear that he may not follow the path of truth and may not decide the law truly, so that the ruling might not accord with the truth, nevertheless the sage has only what his own intellect yields and understands from the Talmud. And when his understanding and wisdom mislead him, even so he is beloved to God, blessed be He, when he rules according to what follows from his intellect, for a judge has only what his eyes see. And this is better than one who issues rulings from a single compendium and does not know the reason for the matter at all, for he walks like a blind man on the road.”

By contrast, in the responsa of Rabbi Joseph ibn Migash an almost opposite position is presented, Responsum 114:

“Know that this man is more fit to be permitted to issue rulings than many people who have set themselves up to issue rulings in our own time, and most of them do not possess even one of these two things—namely, understanding of the halakha and grasping the view of the Geonim, of blessed memory. And those who imagine that they can issue rulings from analysis of the halakha and from the strength of their study of the Talmud are precisely those whom it is proper to restrain from this, because in our time there is no one fit for it, no one who has reached in Talmudic wisdom the level at which he can issue rulings from his own analysis without grasping the view of the Geonim, of blessed memory.”

“But one who issues rulings from the responsa of the Geonim and relies on them, even though he cannot understand the Talmud, is more proper and more praiseworthy than one who thinks he knows the Talmud and relies on himself. For even if he rules on the basis of reasoning that is not truly correct, relying on the proofs of the Geonim, of blessed memory, he nevertheless does not err in this, because what he has done, he has done on the authority of a great court expert for the many. But one who issues rulings from his own analysis of the halakha may think that that halakha requires that ruling when in fact it does not. His analysis has misled him, or he has erred in interpreting it. And in our time there is no one who has reached in Talmud the level at which he can rely on it for issuing rulings.”

The attentive reader will see that Rabbi Joseph ibn Migash is speaking only about a bedi’avad situation, and further analysis would bring these two positions much closer together, but this is not the place.

C. On Forgetting and Reconstruction: Generalization, Conceptualization, and Formalization of the Hermeneutical Principles

What Do We Do When a Halakha Is Forgotten?

What does one do when a halakha is forgotten? From the midrash it appears that it was very difficult to restore the halakhot that had been forgotten. The reason was probably that the modes of reasoning and interpretation that led to those halakhot had also been lost. It would seem, however, that the answer depends on the kind of halakhot that were forgotten. For that purpose we must survey the different types of halakhot and see what may be forgotten in each type and how it can be restored.

In the midrash itself two types of halakhot appear: halakhot in general, regarding which it is not at all clear that they were restored; and verbal analogies, a fortiori inferences, and scribal nuances, which Othniel son of Kenaz restored through his pilpul. Thus, with ordinary halakhot we have no way to restore them if they are forgotten. But the situation is entirely different with halakhot derived through the hermeneutical principles. There we have methods—namely, “pilpul”—by which we can restore the lost object.

The midrash describes the halakhot forgotten during the days of mourning for Moses as verbal analogies, a fortiori inferences, and scribal nuances. It is not clear whether the intention is that halakhot generated by these interpretive methods were forgotten, or rather that the interpretive methods themselves were forgotten.

The consequence is important for understanding the act of Othniel son of Kenaz when he restored the halakhot through his pilpul. What was the nature of that pilpul? Did he reinvent and reconstruct the interpretive methods themselves, or did he merely use those methods—which were still known and had not been forgotten—to restore forgotten halakhot?

It should be noted that ever since the close of the Talmud we have been in a state of severe forgetfulness with respect to the methods of interpretation. It is possible that we can learn something from this midrash that will be timely and relevant to that problem as well.

What Is the Nature of the Forgotten Halakhot?

The distinction we find in the midrash between halakhot and verbal analogies and a fortiori inferences is striking. After all, it is obvious that halakhot written explicitly in Scripture were not forgotten. Beyond those, what remain are only halakhot that emerge from interpretation, or from halakhic midrashim, or halakhot received by tradition—that is, halakhot given to Moses at Sinai—or rabbinic halakhot.

The example brought by the midrash itself of a forgotten halakha is the case of a sin-offering whose owner died—or according to another reading, whose owner had already obtained atonement—which may not be offered. Rashi explains that the doubt was whether it must be left to die or instead left to graze until it becomes blemished. What sort of halakha is this? In several sugyot in the Babylonian Talmud it is stated that this is a halakha given to Moses at Sinai; see Babylonian Talmud, Temurah 16b, Nazir 25b, and parallels. It therefore seems that the term “halakhot” here refers to halakhot given to Moses at Sinai—and this is indeed the meaning of the term “halakhot” in several places in the Talmud—and it is certainly possible that such halakhot could not be restored except through prophecy.⁸ Maimonides, in his introduction to the Mishnah, defines “a halakha given to Moses at Sinai” as a halakha received by tradition with no anchor in the written text, whether midrashic or interpretive. If so, once such a halakha is forgotten there is no evident possibility of restoring it without prophecy. As noted, the midrash itself also seems to indicate that these halakhot were not restored. Opposed to them, the midrash places the halakhot learned through the hermeneutical principles, which Othniel son of Kenaz did restore.⁹

Interestingly, Jerusalem Talmud, Shabbat 1:4, says in the name of Rabbi Shmuel bar Nahmani that if a court wished to annul the law of the sin-offerings that must die, it could annul it and the animals would then be brought as freewill offerings. The commentators already asked: how can a court annul a halakha given to Moses at Sinai? Some wrote that after Othniel son of Kenaz restored them¹⁰ they lost their status as halakha given to Moses at Sinai, and therefore they can be annulled.¹¹ It appears from here that reconstructing such halakhot constitutes an addition to the Torah in our possession, even though those halakhot were given to us at Sinai. True, if the reconstruction is not done by prophecy it is considered legitimate and binding, but we still see explicitly that it constitutes an addition to the Torah.

Othniel’s Pilpul with Respect to the Hermeneutical Principles

In light of what we have said, it is reasonable to assume that what was forgotten was the halakhot learned by means of the hermeneutical principles, and that Othniel son of Kenaz’s pilpul consisted of using those very principles to reconstruct the process of interpretation and the halakhot that emerged from it.

What was special about what Othniel son of Kenaz did? Seemingly, every sage who arose in Israel after Moses our Teacher used the hermeneutical principles to interpret the Torah and to create or support existing halakhot. It is very plausible that Othniel innovated something with respect to the hermeneutical principles themselves as well. We will now try to understand, at least somewhat, the nature of that pilpul.

The Process of Generalization in the Formation of Language and of the Hermeneutical Principles

On the sheet for Parashat Lekh-Lekha, and also on the sheet for Parashat Shemot, we discussed the process of conceptualization and generalization of the hermeneutical principles over the course of history. We described there that Moses our Teacher apparently studied the Torah with the Holy One, blessed be He, on Mount Sinai, and in the course of that study God interpreted the Torah together with him. The use of the hermeneutical principles was intuitive, like a child learning to speak his mother tongue. That learning takes place without guiding rules, simply through natural use of the language itself until one becomes accustomed to speaking it.

We noted there that when a new immigrant arrives in the country, he must learn the language in an ulpan. There the learning has a different character: one begins with rules of grammar and usage, and from them one learns the language. This learning is not intuitive but formal.

How were those rules formed? It is obvious that the process by which a language emerges does not begin with a list of rules. Rather, the rules themselves are generated from speech. Once the community of speakers develops the language sufficiently, a retrospective examination of what has emerged begins, and then a process of generalization starts. The intuitive phenomena of speech begin to enter grammatical categories that sort and classify them into groups, by identifying what they have in common. For example, the fact that for some reason the word bayit begins with a hard bet, and so does barzel, unlike words such as havanah, havdalah, even, and the like, gives rise to the feeling that there is a rule that arose intuitively: the letter bet at the beginning of a word is always pronounced hard. The rule is created from reflection on the natural process.¹²

The process is this: from a collection of particular and unique phenomena, between which no apparent connection exists, a generalization is formed that finds a common basis for groups of phenomena and generates rules from it.

The Process of Conceptualization in the Formation of Language and of the Hermeneutical Principles

At the next stage, after generalization and phenomenological laws—that is, descriptive laws—comes conceptualization. At this stage, concepts are created in a meta-language, and by means of them we explain the linguistic phenomena we observe. From here arise terms such as “direct and indirect object,” “predicate” and “subject,” various sentence structures, and the like. One can continue the process of conceptualization further and create more basic rules at a higher level of abstraction, and so on.

With respect to the hermeneutical principles, a similar process occurred. After the interpretive phenomena were collected and divided into phenomenological groups, a need arose for conceptualization. Meta-halakhic concepts were created that generate the linguistic phenomena and their classified groupings. Concepts such as “verbal analogy,” “a fortiori inference,” “textual comparison,” and the like were created at this stage. According to our conjecture, Moses our Teacher did not know these terms—see the position of the scholars discussed on the aforementioned sheet—but he used them intuitively. Only when a process of forgetting began with respect to the principles did we cease to be native speakers and become ulpan students—”the heart grew constricted,” in the language of the Gemara, Babylonian Talmud, Temurah 16a—and then a need arose for guiding rules to direct the interpretive procedures and the interpretations themselves.

At a later stage it was possible to continue distinguishing groups of hermeneutical principles and to classify the principles themselves on a more abstract basis, using terms such as “analogy,” “induction,” and “deduction”; linguistic versus logical principles; and several other distinctions that we have presented in the various Midah Tovah sheets and similar discussions.

A Conjecture Regarding the Pilpul of Othniel son of Kenaz

According to our conjecture, the pilpul of Othniel son of Kenaz dealt with the generalization of the linguistic phenomena. After the forgetting of verbal analogies and a fortiori inferences—that is, of the hermeneutical principles and the methods of interpretation—the interpretive intuition that Moses our Teacher possessed as a native language began to fade. The farther we move from the revelation at Sinai, the less we speak the language of interpretation as a mother tongue. A “scientific,” retrospective mode of observation arises, and phenomenological laws are created. These laws help restore halakhot that have been forgotten. We try to reconstruct what Moses our Teacher knew directly from the Divine Presence by logical means, through analysis, generalization, and abstraction from the examples known to us.

Othniel apparently took the interpretive phenomena that were still known and understood, built from them groups of phenomenological interpretive rules, and by means of those rules reconstructed the halakhot that had been forgotten.

In this language, then, “pilpul” means generalization, classification, and the creation of a phenomenological theory. There is some connection between this meaning and the term “pilpul” as it appears today, mainly in a pejorative sense. Disparaged pilpul consists of irresponsible and untested generalizations that do not meet exacting criteria of sound reasoning, consistency, and logic.¹³

The Creation of Systems of Hermeneutical Principles

At the first stage, however, there is no avoiding the creation of speculative pilpul in order to reconstruct information that has been lost to us.¹⁴ The next stage is the creation of a conceptual system—that is, conceptualization—and a theory—that is, the formalization of the rules—by means of which we can test the generalizations, the pilpul, that we previously created, and place them on a systematic basis. At this point we can examine whether those generalizations withstand theoretical tests and propose corrections that will bring us to a more accurate description of the linguistic or interpretive phenomenon.

At this stage meta-halakhic or meta-midrashic systems were created, which sorted and classified the methods of interpretation into different hermeneutical principles. More precise and systematic working patterns were cast, enabling one who was not equipped with the perfect intuition that Moses our Teacher possessed—since he received it from the mouth of the Almighty—to operate according to rules. The rules were created in order to ease the transmission of the complex interpretive techniques to future generations. The sages of later generations study in Moses’s ulpan through the rules that describe his natural interpretive language.

When Moses our Teacher saw the verse “You shall fear the Lord your God,” he understood intuitively that it should be interpreted here by what we today call an inclusive derivation, extending it to include Torah scholars. In the generations after him, this was no longer self-evident, because we had lost the interpretive intuition. Intuitions are very hard to transmit from one generation to another, because they are not formulated objectively in a manner shared by all of us. Therefore the interpretive rule called “inclusion” was created, and we use it to reach the same result that Moses reached.

Thus the hermeneutical principles were formed, and afterward they were cast into quasi-formal, quasi-axiomatic patterns. This is a system of rules that can be transmitted more easily from generation to generation, and therefore the power of forgetfulness has less effect on it.

The process known to us began with Hillel the Elder, where several different principles still appear together within a single category, and therefore he has only seven hermeneutical principles. Later, Rabbi Ishmael and Rabbi Akiva bring the process of formalization to its peak, formulating two relatively formal systems of thirteen interpretive principles. The thirty-two principles of Rabbi Eliezer son of Rabbi Yose the Galilean represent a further elaboration in this process, though not a direct continuation, since some of them are principles used in aggadic midrashim.

Our Situation Today

Although formal systems are easier to transmit—that is, harder to forget—over the course of history we have managed to forget even this. Ever since the close of the Talmud, the use of the hermeneutical principles has ceased, except for a few minor and insignificant exceptions.¹⁵ Fortunately, we still possess bodies of data that may help us reconstruct what has been lost. In my humble opinion, from the interpretations that remain in our hands, by means of generalization, conceptualization, and theoretical formalization, and with the help of the lists of principles and their definitions—in the baraita of examples and in the various books of rules—it is possible to make progress toward reconstructing the ability to use the hermeneutical principles.

Expanding the Torah According to Maimonides

As we saw above in section A, and in the discussion of the Jerusalem Talmud in Shabbat, using various means to reconstruct halakhot given to us at Sinai does not constitute full restoration. There is an element here of creating something new, and therefore also of adding to the Torah as it exists in our hands.

But that is true with respect to halakhot given to Moses at Sinai, whose source is the transmission from God to Moses. Once the chain of tradition is broken, the original situation cannot be restored. This is true not only because of uncertainty as to whether the reconstruction is correct, but also because what is now in our hands is a product of midrash or interpretation and no longer a halakha given to Moses at Sinai.

What about halakhot learned by interpretation? It seems very plausible that if these halakhot were generated through the hermeneutical principles, then recreating them would not alter their status. After all, the sages of every generation can generate halakhot through the methods of interpretation, and we are obligated to observe them. There is no difference whether such halakhot were generated in the generation of Moses our Teacher or in the generation of Rabbi Judah the Patriarch—and in principle, even in our own generation.

On the sheet for Parashat Yitro, and elsewhere, we discussed the view of Maimonides, who sees the hermeneutical principles as a means of expanding the Torah and not as a means of uncovering information hidden within it. We now see that this has a Talmudic source, for from the Jerusalem Talmud, and perhaps also from the sugya in Temurah and from our own midrash—as we saw above in section A—it emerges that reconstruction carried out through the methods of interpretation constitutes an expansion of the Torah. With respect to halakhot given to Moses at Sinai, that expansion changes their status. But with respect to interpretive halakhot, their status from the outset was already that of an expansion. According to Maimonides they are classified as rabbinic law, and therefore reconstructing them anew involves no change.

Footnotes