Vayelech (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 — Erev Shabbat, Parashat Vayelekh, 5765

Questions

1. What is the relationship between the commandment of Hakhel and the commandment of pilgrimage ascent?
2. Do the exemptions listed in the Mishnah at the beginning of Tractate Hagigah concern the commandment of pilgrimage ascent?
3. There are two kinds of inclusion and exclusion: how do we decide what to include and what to exclude?
4. Why must one know how to ride on his father’s shoulders in order to bring the burnt offering of appearance?
5. Why must one be able both to hear and to speak in order to bring the burnt offering of appearance?
6. Is a gezerah shavah (verbal analogy) a substantive comparison or a formal rule?
7. According to the views that a gezerah shavah must be symmetrical, does that necessarily mean that it is a substantive comparison?

The Hermeneutical Principles

Inclusion. Exclusion. Gezerah shavah (verbal analogy).

“When all Israel comes to appear before the Lord your God in the place that He shall 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 fear the Lord your God, and observe to do all the words of this Torah.”

— Deuteronomy 31:11-12

“Everyone is obligated in appearing before God, except for a deaf person, a person of unsound mind, a minor, a tumtum (a person whose sexual characteristics are indeterminate), an androgynos (a person with both male and female sexual characteristics), women, slaves who have not been freed, the lame, the blind, the sick, the elderly, and anyone who cannot go up on his own feet. Who is deemed 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 is said: ‘Three pilgrimage festivals.'”

— Mishnah, Hagigah 1:1

“Everyone is obligated in appearance—in the commandment, ‘all your males shall appear’ (Exodus 23), for they must appear in the Temple courtyard on the festival. Except for a deaf person, a person of unsound mind, and a minor—for they are not mentally competent 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 Temple courtyard; the Gemara explains them. ‘Who is deemed a minor,’ etc.—but from that point onward, even though he is not obligated by Torah law, the Sages imposed upon his father and mother the duty to train him in the commandments. ‘Three pilgrimage festivals’—Scripture obligates one who is fit to go up on his own feet; and since such an adult is exempt by Torah law, a minor in that condition is not even subject to educational training.”

— Rashi on Mishnah, Hagigah 1:1

“Everyone is obligated in appearance, etc.—the Mishnah speaks of the appearance-offering; but with regard to appearing in person, even a minor is obligated, from the verse ‘Assemble the people—the men, the women, and the children.’ If even children are included, certainly a minor is.”

— Jerusalem Talmud, Hagigah 1:1

“‘A deaf person’—The colleagues said in the name of Rabbi Elazar: ‘So that they may hear’ and ‘so that they may learn.’ That tells us about one who speaks but does not hear. What about a deaf person who hears but does not speak? Rabbi Ila said in the name of Rabbi Elazar: ‘So that they may teach’ and ‘so that they may learn’…”

— Jerusalem Talmud, Hagigah 1:1

“‘A minor’—Rabbi Yirmiyah and Rabbi Ayvu bar Nagri were sitting and said: We learned, ‘Who is deemed 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. Should we then say that ‘all your males’ includes the deaf person? ‘So that they may hear’ and ‘so that they may learn’ excludes the deaf person. Should we then say that ‘so that they may hear’ and ‘so that they may learn’ excludes the minor? Rabbi Yose said: Since one verse includes and another excludes, I include the minor, who is fit to come to obligation at a later time, and I exclude the deaf person, who is not fit to come to obligation at a later time.”

— Jerusalem Talmud, Hagigah 1:1

A. The Deaf Person and the Minor in the Commandments of Hakhel and Re’iyah

Introduction

In our parashah appears the mitzvah (commandment) of Hakhel, the septennial public assembly. On Sukkot following the Sabbatical year, the king stands and reads from the Torah before all Israel who have come up on pilgrimage to Jerusalem. The verse commands all Israel to participate in this event. Seemingly, everyone is obligated, without exception.

With regard to aliyah la-regel (pilgrimage ascent to Jerusalem), that is, the commandment of appearance before God, there is likewise a sweeping command (Exodus 23:17): “Three times a year all your males shall appear.” Our parashah also mentions this incidentally, as part of the description of the timing of Hakhel, which takes place when everyone comes up on pilgrimage: “When all Israel comes to appear”—that is, all Israel is obligated in appearance.

Already from the verses themselves it is clear that there is a connection between these two commandments, Hakhel and appearance. First, the timing: the commandment of Hakhel applies at the time when people come up on pilgrimage—”when all Israel comes to appear.” Second, the Babylonian Talmud, Hagigah 3a, establishes that with respect to exemptions from appearance there is a gezerah shavah of “appearance”-“appearance,” from the verse in our parashah concerning Hakhel to the law of pilgrimage ascent. From this gezerah shavah the Sages derive the exemption, with respect to appearance, of one who hears but does not speak or speaks but does not hear, from that person’s exemption with respect to Hakhel. Thus the Sages see a substantive connection between these two commandments, and one who is exempt from the one is exempt from the other as well.

Yet we also find differences between the two commandments. Women are obligated in Hakhel, even though they are exempt from appearance (see Babylonian Talmud, Hagigah 4a). Likewise, children and uncircumcised men are exempt from appearance but obligated in Hakhel (see Maimonides, Mishneh Torah, Laws of Hagigah 3:2).

The Nature of the Gezerah Shavah

At first glance, the connection between appearance and Hakhel seems one-directional: the exemptions of the commandment of Hakhel—such as a deaf person who can only speak or only hear—teach us that the same exemptions apply to appearance; but an exemption in appearance—women, children, and uncircumcised men—does not teach us that the same exemption exists in the commandment of Hakhel.

This picture returns us to the dispute among the medieval authorities regarding the rule that a gezerah shavah may not be applied partially. We saw in the sheet on Parashat Ki-Tavo, at the beginning of section 2 (and similarly in the Vayera sheet, at the end of section 2), that the medieval authorities disagreed about the meaning of this rule. According to Rashbam, this rule instructs us to make the gezerah shavah symmetrical—in our example, to compare Hakhel to appearance as well, and not only appearance to Hakhel. According to Rashi, the meaning of this rule concerns only exhausting the inference and comparison in the direction one has chosen—in our example, to compare all the exemptions of Hakhel to appearance, and not to make do with only some of them.

Seemingly, the gezerah shavah performed in our midrash, which is asymmetrical in character, constitutes proof for Rashi’s view and a difficulty for Rashbam’s view.

First Possibility for an Explanation: Superfluous on One Side

In Parashat Ki-Tavo, at the end of section 2, in the discussion of Radbaz’s view, we suggested the possibility that a gezerah shavah based on a superfluous word on one side is directional and not symmetrical according to all views. We proposed there that in such a case the resemblance between the two sides of the gezerah shavah is not substantive, and the gezerah shavah serves merely as a tool for transferring laws from one side to the other, not as an expression of an essential similarity. In such a case, even Rashbam would agree that there is no obligation to symmetrize it.

Indeed, the author of Turei Even, in his glosses to Babylonian Talmud, Hagigah 3a, s.v. “gamar,” comments that this gezerah shavah is superfluous only from the side of Hakhel, at most. In light of this, he asks there why no refutation is raised against this gezerah shavah—for a gezerah shavah that is superfluous on only one side can be refuted—with the objection: what distinguishes appearance is that it is more frequent, since there is an obligation to come up on every festival each year. Thus our gezerah shavah is superfluous on one side, and therefore we should not be surprised that it is not symmetrical.

Still, by simple logic it would seem more plausible—though not necessarily so—that the superfluous side should be the side being learned about, not the side that teaches. The superfluousness is supposed to teach us something about the passage in which the superfluous word appears. Yet in our case the superfluousness is in the Hakhel passage, which is the teaching side.

A Note on the Word “to Appear” in the Hakhel Passage

A further point should be noted regarding this derivation. The word “to appear” in the Hakhel passage is the word that represents the Hakhel side in the comparison created by the gezerah shavah. Yet this word, although it appears in the Hakhel passage, actually describes the pilgrimage ascent itself—that is, the timing of the Hakhel event—and not participation in the Hakhel event itself. If so, it is not clear why it should serve as representing the commandment of Hakhel in the gezerah shavah, and why one should infer from it that it is possible to learn from Hakhel to appearance. After all, the word itself also deals with appearance, not with Hakhel.

In the sheet on Parashat Ki-Tavo, in section 2, we pointed out that the theorists of the interpretive rules divide the gezerot shavot in rabbinic literature into two types: one teaches the meaning of a word, and the other is formal, its role being to transfer laws from one passage to another.

It seems that the fact that the word “to appear” in the Hakhel passage also refers to the commandment of appearance teaches us that this gezerah shavah does not uncover the meaning of the words under discussion, but rather uses the words in order to transfer laws from one passage to another. On this view, the word “appearance” describes appearance on both sides of the gezerah shavah, not Hakhel. Even so, since the timing in the Hakhel passage is described in the terminology of “appearance,” one can perform a gezerah shavah with respect to it and treat this word as representing Hakhel rather than appearance. Thus we are not uncovering here the meaning of the word “appearance”; we are transferring a law from one passage to another on the basis of a mere verbal hint of similarity.

This conclusion also seems to fit our conclusion in the previous paragraph, namely that this gezerah shavah is superfluous on one side. As we mentioned, a gezerah shavah that is superfluous on one side apparently does not express a comparison or substantive similarity between the two sides, but rather functions as a formal tool for transferring laws from one context to another.

Second Possibility for an Explanation: The Unique Character of the Gezerah Shavah Here

The distinction proposed here raises another possible explanation of Rashbam’s view. Since the word “to appear” in the Hakhel passage also refers to the commandment of appearance, there is here a hint that the direction of the gezerah shavah is from Hakhel to appearance. The Torah plants in the Hakhel passage a word associated with appearance in order to teach us that those exempt from Hakhel are exempt from appearance as well.

It may be that in such a case there is no room to symmetrize the gezerah shavah, even according to Rashbam. The gezerah shavah here is entirely directed toward appearance, and it therefore seems that its whole purpose is merely to introduce something new about appearance, not to compare appearance and Hakhel.¹

The Jerusalem Talmud’s View

The Mishnah at the beginning of Hagigah establishes the list of those exempt from the commandment of appearance. The Jerusalem Talmud, at the beginning of the sugya, as cited above, states that all these exemptions relate only to the obligation to bring the olat re’iyah (the burnt offering brought upon appearing in the Temple),² but not to the obligation of re’iyat panim, that is, the pilgrimage ascent itself. The Jerusalem Talmud derives this from the commandment of Hakhel, in which the men, the women, and the children are obligated, and from this concludes that all these groups are likewise obligated in re’iyat panim.

It appears from the Jerusalem Talmud that the gezerah shavah equating appearance with Hakhel concerns only the commandment of pilgrimage ascent—that is, re’iyat panim—and not the commandment to bring the olat re’iyah. With respect to the commandment of pilgrimage ascent itself, there really are no exemptions beyond those who are exempt from Hakhel. According to this, the gezerah shavah is indeed fully symmetrical, for there is a complete comparison between appearance and Hakhel. The differences concern only the olat re’iyah.

The Jerusalem Talmud also shows that this gezerah shavah has stringent as well as lenient consequences. We learn from the commandment of Hakhel to the commandment of appearance both leniencies and stringencies. Thus the Jerusalem Talmud implements here both interpretations of the rule that a gezerah shavah may not be partial: it learns all the features from Hakhel to appearance, as Rashi says, and it also ensures two-way symmetry between them, as Rashbam says.

The Dispute Between Rashi and Tosafot About the Babylonian Talmud at the Beginning of Hagigah

From Rashi’s comments on the Mishnah, quoted above, it emerges that he understood the Mishnah as dealing with the totality of the commandment of appearance, unlike the Jerusalem Talmud. According to his view, therefore, the exemptions that appear there are exemptions from all aspects of appearance, both from the offering and from the pilgrimage ascent itself, that is, from re’iyat panim. This is also how the Tosafists there understood him, in their comment s.v. “hakol.” Later in their remarks they also adduce proof for this from the language of the Mishnah, which sets the ability to walk—or at least to ride on the father’s shoulders—as the criterion for exemption from the commandment of appearance. It follows from this that the commandment under discussion is the pilgrimage ascent and not the bringing of the offering. In the Jerusalem Talmud, however, it is clear that it did not understand the matter this way, and apparently the criterion of walking ability is a formal scriptural decree and not a substantive criterion.

Rabbi Elhanan, however, in the aforesaid Tosafot, raises a lengthy objection to Rashi from a number of places where it is evident that the intent is the commandment of the offering. In the end he and Rabbenu Tam conclude, against Rashi, in accordance with the Jerusalem Talmud: the exemptions stated in the Mishnah concern only the offering, whereas with respect to the commandment of pilgrimage ascent everyone is obligated.

Tosafot notes that according to the Jerusalem Talmud the gezerah shavah also teaches stringently, whereas according to the Babylonian Talmud—at least according to Rashi’s reading, and that also seems to be Tosafot’s conclusion—it teaches only leniently. True, later in the sugya of the Babylonian Talmud (Hagigah 4a) there arises a possibility of learning from Hakhel to appearance stringently as well, namely the obligation of women, but this possibility is rejected on the basis of a special scriptural decree, namely the word “your males.”

Connection to the Dispute We Saw Above Regarding “A Gezerah Shavah May Not Be Partial”

Thus, according to Rashi and Tosafot in the Babylonian Talmud, this gezerah shavah is indeed not symmetrical in both directions. According to the Jerusalem Talmud, and according to Rabbi Elhanan and Rabbenu Tam, it is symmetrical.

At first glance, this seems to mirror the dispute we encountered above. According to Rashi, a gezerah shavah need not be symmetrical at all, and therefore here too it is not. There is accordingly no obstacle to understanding the gezerah shavah as referring to the totality of the commandment of appearance. The other medieval authorities, however, apparently hold like Rashbam, that a gezerah shavah must be symmetrical, and therefore they are forced to interpret the gezerah shavah as referring only to the laws of pilgrimage ascent and not to the laws of the offering—thereby making it symmetrical—as in the Jerusalem Talmud.

If so, it would seem that there is no need for the explanations we gave above, for nothing here poses a difficulty to Rashbam’s view.

But this picture is not precise. According to Rashi and Tosafot, the rule that a gezerah shavah may not be partial does not require symmetry, but it does require us to learn everything possible in the chosen direction. If so, how can Tosafot say that the gezerah shavah teaches from Hakhel to appearance only leniently and not stringently? Let us note that the other direction—Rabbi Elhanan and Rabbenu Tam’s view—does fit: according to Rashbam there must be two-way symmetry, but presumably he would also accept the principle that one must learn everything possible in each of the two directions.

A further difficulty is that Rabbi Elhanan and Rabbenu Tam do not cite the rule that a gezerah shavah may not be partial as the rationale for their view.

At this point, the picture reverses itself: it is not Rashbam who is difficult, for he can follow the view of Rabbenu Tam and Rabbi Elhanan. specifically Rashi’s view is what requires explanation: how can we learn from the gezerah shavah only leniently and not stringently, contrary to the rule that a gezerah shavah may not be partial? Beyond that, what is the logic of doing so, even if it fit the formal rules of interpretation? Why should a comparison between two subjects operate only leniently and not stringently?

Returning to Our Explanations Above

It seems that Tosafot is not distinguishing between leniency and stringency, but between direction.

We should note that before performing the gezerah shavah, when one examines the biblical laws themselves, two kinds of differences emerge between Hakhel and appearance:

1. Stringencies that exist in appearance but not in Hakhel—in other words, leniencies in Hakhel that do not exist in appearance.
2. Leniencies that exist in appearance but not in Hakhel—that is, stringencies that exist in Hakhel but not in appearance.

With respect to each of these two kinds of differences, comparison can proceed in one of two ways: either change Hakhel so that it resembles appearance, or the reverse—make appearance resemble Hakhel.

Even if the gezerah shavah were applicable in both directions, what should we actually do? For example, with respect to the first type of difference, stringencies in appearance, should we erase the stringencies from appearance, or specifically create them in Hakhel? In either case, equality between Hakhel and appearance would result. The same applies to the second type of difference, leniencies in appearance: should we erase the leniencies from appearance, or create corresponding leniencies in Hakhel?

In the sheet on Parashat Ki-Tavo—and see also the parallel discussion in the sheet on Parashat Vayehi with respect to hekesh (inference by juxtaposition)—we already pointed out that this problem accompanies every gezerah shavah, which always operates between two unequal contexts. There will always be a dilemma regarding which of the two sides the gezerah shavah should act upon: which is the side being learned about, and which is the teaching side.

It seems that in most cases the rule is that the positive law—the “filled” side of the gezerah shavah, in our terminology there—is what determines the law on both sides of the gezerah shavah. That is, if the law in Hakhel was stated explicitly, whether leniently or stringently, that is a positive innovation of the Torah, and its absence on the other side, in appearance, is only negative. Therefore the direction of supplementation and comparison is from the positive to the negative. The rule is that in a gezerah shavah we do not change what the Torah established explicitly; we only fill lacunae that it left behind.

What is the positive side in our case, the stringencies or the leniencies? Presumably it is the leniencies. Once the Torah has in principle obligated people in the commandment of appearance or in Hakhel, every exemption is a renewed positive determination. A lacuna regarding some type of person cannot be regarded as an exemption, for we have no basis to remove such people from the general obligation—in other words, they carry a presumption of obligation. For example, had the Torah said nothing about slaves or minors, we would have obligated them, for we would have had no reason to exempt them.³

We can now return to the statement of Tosafot quoted above. They say that we do not learn stringently from Hakhel to appearance, but only leniently. In light of our introduction, this means that we learn only from Hakhel to appearance, and not the reverse. That is, this formulation is simply another way of stating the asymmetry of the gezerah shavah.

The example that Tosafot itself gives for this is the attempt in the Babylonian Talmud, Hagigah 4a, to obligate women in appearance on the basis of the gezerah shavah. The wish to obligate them stemmed from the fact that their exemption is based on the general rule that women are exempt from positive time-bound commandments, so here the obligation is the positive datum rather than the exemption. In the conclusion, this attempt is rejected because of the word “your males”; that is, there is a positive Torah exemption in appearance. As stated, we do not change an explicit positive determination of the Torah because of a comparison created by gezerah shavah.

Thus, Tosafot’s claim, in its reading of the Babylonian Talmud, that we learn from Hakhel to appearance only leniently and not stringently, is really a claim about the directionality of the gezerah shavah—its asymmetry. Therefore, in the final analysis, we do indeed need the explanations given above for the phenomenon of asymmetry.

B. The Jerusalem Talmud’s Exposition

Introduction

In the previous chapter we examined the background and character of the comparison between appearance and Hakhel. Here we will discuss the exposition of the Jerusalem Talmud cited above, which apparently presupposes this same comparison, though it does so implicitly. In the background of what follows one must remember that the Jerusalem Talmud’s position is that the comparison was stated only with respect to the laws of the olat re’iyah, not with respect to re’iyat panim. That is, according to the Jerusalem Talmud the gezerah shavah is fully symmetrical, but it concerns only the obligation of the olat re’iyah and not the pilgrimage ascent itself.

The Course of the Jerusalem Talmud’s Exposition: Part A

The discussion begins with the Mishnah at the beginning of Hagigah, where the exemptions from the commandment of appearance are listed:

“Everyone is obligated in appearance, except for a deaf person, a person of unsound mind, a minor, a tumtum, an androgynos, women, slaves who have not been freed, the lame, the blind, the sick, the elderly, and anyone who cannot go up on his own feet.”

Thus, although all males must go up on pilgrimage, there are quite a few exemptions. The Jerusalem Talmud cited above deals with the exemption of the deaf person and the minor from appearance.

In the first passage, the Jerusalem Talmud derives the exemption of the deaf person from the words in our parashah, “so that they may hear” and “so that they may learn.”⁴ The deaf person is not capable of hearing, and therefore is exempt from appearance. At first glance, however, this exemption concerns only one who cannot hear. But in rabbinic literature, a “deaf person” can also denote one who cannot speak—usually, one who both does not hear and does not speak. Therefore, immediately afterward, the discussion turns to the status of one who hears but does not speak, who seemingly falls under the phrase “they may hear.” In response, the continuation is cited—”so that they may teach” and “so that they may learn”—reading the verb as “teach”: one who does not speak cannot teach, and therefore he too is exempt from appearance.⁵

At this point it is worth noting that these words appear in our parashah with respect to the commandment of Hakhel and not with respect to appearance. More than that: an exemption based on hearing and learning, in its very essence, is relevant only to Hakhel—which is an educative commandment—and not to the commandment of appearance. Why does one need to speak and hear in order to go up on pilgrimage? Even in the Mishnah, which deals with the commandment of pilgrimage ascent, we encounter a criterion based on the ability to walk or ride on the father, not any cognitive criterion.

We thus see once again that the Sages, implicitly, automatically compare Hakhel and appearance, and do not even bother to state this explicitly. More than that, it seems from here that the comparison is formal and not substantive. The cognitive criterion of hearing and speech does not seem relevant to the commandment of pilgrimage ascent, and yet it is transferred to it from Hakhel because of the gezerah shavah.

It should be noted that this picture seems somewhat puzzling in light of what we saw in the Jerusalem Talmud’s position, namely that the comparison between Hakhel and appearance is substantive rather than formal. We saw that the Jerusalem Talmud insists on the symmetry of the gezerah shavah, even against the plain sense of the Mishnah itself. The Mishnah speaks of a criterion of walking, and it is evident that it is dealing with the laws of pilgrimage ascent and not with the laws of the offering. Yet the Jerusalem Talmud states that the Mishnah deals only with the laws of the offering, apparently in order to preserve the symmetry of the gezerah shavah.

We explained that according to the Jerusalem Talmud’s interpretation of the Mishnah, the criterion of walking with respect to the offering is also a formal rather than a substantive criterion. We now see that the same is true of the cognitive criterion with respect to the commandment of appearance in general: even if we were dealing with re’iyat panim and not the offering, this is not really a matter that relates to hearing and speech.

The conclusion is that the Jerusalem Talmud understands gezerah shavah as a formal procedure and not as a substantive comparison, despite the fact that it insists on the principle of symmetry—apparently by force of the rule that a gezerah shavah may not be partial, according to Rashbam’s interpretation. Thus, contrary to what we have said several times, a symmetrical interpretation of gezerah shavah and of the rule that a gezerah shavah may not be partial does not necessarily indicate an understanding of gezerah shavah as a substantive comparison. The Jerusalem Talmud interprets gezerah shavah symmetrically, and yet sees it as a purely formal hermeneutic rule.

Part B: The Minor

The second passage deals with the exemption of a minor. The Gemara begins with the definition of a minor as one who cannot ride on his father’s shoulders. At this stage it is not clear from the Jerusalem Talmud’s sugya what the source is for the exemption of a minor from appearance. At first glance, the minor is exempt like any other minor who is exempt from all commandments. Rashi writes this as well in his comments on the Mishnah, quoted above. We may add that Rashi also explains the obligation of a minor who knows how to ride on his father as a rabbinic obligation. By Torah law every minor is exempt.

At this point the Jerusalem Talmud raises an objection: how can a minor who can ride on his father’s shoulders be obligated in appearance, when he too is not among those who hear and speak, and Scripture says, “so that they may hear” and “so that they may learn,” excluding one who is not within the category of hearing? It seems that the Jerusalem Talmud understood the obligation of a minor who knows how to ride as a Torah obligation; otherwise its question would not arise.⁶

But now we must return and ask: what is the source of the obligation of a minor in appearance? Why is he not exempt from this commandment like from the rest of the Torah’s commandments? It seems that he is obligated by force of the verse “all your males,” which includes the minor. If so, the question immediately arises why a minor who does not know how to ride is excluded. From the words of the Jerusalem Talmud here it seems that the minor is excluded by force of the verse “so that they may hear” and “so that they may learn,” since he is not within the scope of hearing or learning.

At this point the Jerusalem Talmud presents, as the answer, the inclusion “all your males,” which includes even a minor. The picture regarding the minor is thus as follows: true, a minor is exempt from all commandments, but here there is a special inclusion from “all your males.” If so, seemingly all minors are included. Yet from the verse “so that they may hear” and “so that they may learn,” minors are nevertheless excluded, and we return to the ordinary state of exemption. In order to reconcile these two directives, we are forced to find a compromise: we include a minor who can ride on his father, even though he is not within hearing and learning, and exclude a minor who cannot ride on his father.

Part B: Returning to the Deaf Person

At this point the Jerusalem Talmud asks why we should not include the deaf person from that same verse, since he too is included in the phrase “your males.” In response, it cites the exclusion “so that they may hear” and “so that they may learn,” which was brought above. Here a certain difficulty arises, for with respect to the minor we saw that a compromise was found between the inclusion and the exclusion: the exclusion concerns a minor who does not know how to ride, while the inclusion concerns a minor who does know how to ride. Why is a similar compromise not found with respect to the deaf person—for example, excluding one who speaks but does not hear, and including one who hears but does not speak? It seems that with respect to the deaf person the Jerusalem Talmud sees no room for such a move, since one who does not speak is excluded by “they may teach,” and one who does not hear is excluded by “they may hear.” Such a compromise would leave the words of the verse with no field of application. By contrast, with respect to the minor, the division leaves both the inclusion and the exclusion with their own domain of validity and application.

Part B: Returning to the Minor

The Jerusalem Talmud now asks why, with respect to the minor as well, he should not be excluded despite the inclusion, on the basis of the verse “so that they may hear” and “so that they may learn.”

This question is puzzling, for we have already reconciled the inclusion and the exclusion and found a place for each. We saw that this exclusion concerns only a minor who cannot ride on his father, while the inclusion includes a minor who can ride. The question becomes sharper in light of the fact that the Jerusalem Talmud does not even offer that as its answer. It does not explain that the exclusion concerns a minor who does not know how to ride and the inclusion a minor who does know how to ride; instead, it goes off to seek a criterion of selection between the deaf person and the minor.

Seemingly, we would have expected the Jerusalem Talmud to reject applying the inclusion and exclusion to the deaf person, for with respect to the deaf person we did not find any plausible division that would leave both the inclusion and the exclusion relevant. As stated, it ought to have concluded that both concern the minor, and that the division is between one who can ride and one who cannot.

Explaining the Course of the Jerusalem Talmud’s Exposition

From everything said thus far, it seems that we must read the Jerusalem Talmud differently. The Jerusalem Talmud begins by defining a minor as one who does not know how to ride on his father. It then asks how the minors who do know how to ride are obligated in appearance, when they too are not among those who hear and learn. To this it answers that the minor is included by “all your males,” and that the exclusion of one who does not hear or learn concerns not the minor but the deaf person. That is, there is no compromise here between the inclusion and the exclusion. With respect to the minor there is only inclusion. The reason that a minor who does not know how to ride is exempt is the gezerah shavah to Hakhel, not the compromise we suggested above.

If so, the situation is now as follows: with respect to the minor there is the general exemption of minors from all commandments, but there is also the inclusion of “all your males.” The exclusion of “they may hear” and “they may learn” concerns not the minor but the deaf person. In the background there is the comparison to Hakhel, and apparently from it we learn that only a minor who knows how to ride is obligated in appearance—by Torah law, not merely rabbinically as Rashi held in his comment on the Mishnah. Riding is a formal criterion of exemption—that is, one without any clear substantive connection—with respect to the commandment of Hakhel. As for the deaf person, there is indeed room to include him too from the verse “all your males,” but he is excluded by the words “they may hear” and “they may learn.”

Deciding How to Assign the Inclusion and the Exclusion: The Role of Reasoning in Midrashic Interpretation

We can now understand simply the Jerusalem Talmud’s question: why assign the exclusion to the deaf person and the inclusion to the minor, and not the reverse? There is an inclusion and an exclusion, and we choose to apply the inclusion to the minor and the exclusion to the deaf person. The Jerusalem Talmud asks why we in fact did this, and not the opposite. It explains that the inclusion includes precisely the minor because it is more reasonable that the commandment should apply to him than to the deaf person. The reasoning is that a minor, unlike a deaf person, is fit to come to obligation later on. It therefore follows that the exclusion presumably excludes the deaf person, since he is not fit to come later on to obligation and is not included.⁷ If so, the upshot would be that the minor is obligated whether or not he knows how to ride, while the deaf person is not obligated whether he cannot hear or cannot speak.⁸

This structure is symptomatic of the midrashic mode of operation. The interpreter stands before a dilemma of inclusion and exclusion. The inclusion can apply to both the deaf person and the minor, and the same is true of the exclusion. We must now decide how to apply the inclusion and the exclusion.

Here the decision is made by means of reasoning. We have an inclusion and an exclusion, and we have two relevant categories of persons. We exclude the one it is more reasonable to exempt, and include the one it is more reasonable to obligate. It should be emphasized that this is not merely an exegetical consideration. There is no hint in the verses that the exclusion “they may hear” and “they may learn” is more suitable to the deaf person, or that the inclusion “all your males” is better suited to the minor. The reasoning that decides between them concerns the content of the law, not the verses that include or exclude. We are not deciding to what to apply the words “all your males” or “they may hear” and “they may learn”; we are deciding to what to apply obligation and exemption in the commandment of appearance.

The choice between the two alternatives is therefore made by means of reasoning that adjudicates between them. Very often, even when we do not have an explicit dilemma of this kind, we are in a similar situation. Suppose we had only an inclusion, with no explicit opposing limitation. We would still have to decide whether to apply it to the deaf person or to the minor, and perhaps to someone else. That decision too would be made in light of reasoning. In other words, the very act of focusing on these specific categories—the deaf person or the minor—is itself the product of a rational consideration, not of a straightforward interpretation of the verses themselves. Another example is the inclusion from “You shall fear the Lord your God” that includes Torah scholars. That too is not based on a verbal-exegetical consideration. There is no hint in the text as to who is supposed to be included here in the commandment of fear. Perhaps one should include a king, parents, or other figures. Here too the decision is made by reasoning that concerns not the interpretation of the verse itself but the content of the inclusion. The Sages’ reasoning says that if there is anyone whom one must fear in a manner akin to fearing the Holy One Himself, it is Torah scholars.

Usually, however, if there is no frontal dilemma as in our case, then we would include all those who are potentially covered—both the minor and the deaf person, indeed every male. So long as there is no opposing constraint, there is no reason to choose among the possibilities. In such a case we would choose to include everyone who falls within the category of “all your males.” Therefore, in such a situation the role of reasoning is not so significant. At most, it selects the set of persons relevant to the inclusion, but it does not sort and distinguish among them.

In our case there is both an inclusion and an exclusion, and therefore we are forced to surrender something of our simple intuitions and straightforward reasoning. A priori, we would say that “all your males” includes both the deaf person and the minor, and that is how we would rule were it not for the existence of the exclusion. And conversely, “they may hear” and “they may learn” excludes both the deaf person and the minor, were it not for the existence of the inclusion. But because of the contradiction, a need arises to decide, and to relinquish the simple interpretation. Here we had to choose the less problematic interpretation, not the perfect one. Precisely in such a midrash, therefore, the role of reasoning is more pronounced and more important. For this reason the Sages state the reasoning explicitly—why is the minor preferable to the deaf person? In the case of an ordinary inclusion, by contrast, we usually do not find an explicit rationale for the specific choice of what is included. There it is presented as self-evident, because there is no dilemma that the reasoning must resolve.

Two Additional Alternatives

What we have just said raises a certain difficulty concerning the midrash’s decision. If Scripture says “they may hear” and “they may learn,” then in the plain sense this excludes everyone who does not hear or learn—the deaf person, the person of unsound mind, and the minor. This is not a mere hint that we can attach to the one who best fits it; it is an exclusion with its own content, which ought to be applied wherever it is relevant.

To explain further: if the exclusion were based on an extra vav, or on the particle et, as in the inclusion of Torah scholars, then we would indeed have to decide to what to apply it. The reason is that the language of the exclusion itself does not hint to us which persons are to be excluded. But if those obligated in appearance are all those who belong to hearing and learning, then the minor and the deaf person are not within hearing and learning, and therefore both should have been excluded. And conversely: if the deaf person is included in “all your males,” then he too should have been included.

As for the deaf person, admittedly there is no way out. At the end of the day we must decide what to do with him and which of the two derivations applies to him. That is the dilemma described in the previous section. But with respect to the minor, a compromise was certainly possible: he is excluded by “they may hear” and “they may learn,” but one who knows how to ride is included by “all your males”—exactly as we suggested above in explaining the beginning of the Jerusalem Talmud’s discussion.

More than that: the exclusion of “they may hear” and “they may learn” is stated with respect to the commandment of Hakhel, and as we have seen, only there is it substantively relevant. By contrast, “all your males” is an inclusion stated with respect to appearance, not Hakhel. If so, a second solution to this contradiction, and an even more natural one, would be that the deaf person and the minor are both excluded from the commandment of Hakhel, while both are included with respect to the commandment of appearance. In this way we preserve the full meaning of both the inclusion and the exclusion, and resolve the tangle of contradiction in full accordance with the plain sense of Scripture.

Rejecting the Alternatives

It seems that the Jerusalem Talmud sees the commandments of Hakhel and appearance as a single unit, and is unwilling to split them apart. Seemingly, the only reason for this can be the gezerah shavah with which we are dealing. True, this gezerah shavah is not mentioned at all in the Jerusalem Talmud, yet, as we repeatedly see, the gezerah shavah between Hakhel and appearance lies implicitly in the background of the Jerusalem Talmud’s interpretive move.

More than that, we see that the Jerusalem Talmud insists on taking it all the way—that is, to learn it in both directions, and both stringently and leniently. In this it follows its own view that we saw above, against Rashi and Tosafot in the Babylonian Talmud: according to the Jerusalem Talmud, Hakhel and appearance must be entirely equivalent.

And Yet the Difficulty Is Not Resolved

However, on closer inspection, there is a problem here. The Jerusalem Talmud’s position is that the gezerah shavah is made between the commandment of Hakhel and the commandment of re’iyat panim, not with the commandment of the olat re’iyah. On the other hand, according to the Jerusalem Talmud the various exemptions in the Mishnah—some of which do not exist in Hakhel—were stated only with respect to the olat re’iyah and not with respect to re’iyat panim, for here there is no gezerah shavah. If so, then according to the Jerusalem Talmud the gezerah shavah would seemingly be unable to play any role with respect to these exemptions.

We therefore conclude with the same question arising here once again: why does the Jerusalem Talmud reject the possibility of separating the olat re’iyah from Hakhel, and saying that the minor and the deaf person are obligated in appearance but exempt from Hakhel? This matter requires further investigation.

Footnotes

The question is whether, according to the Jerusalem Talmud’s conclusion, the assumption of the Minhat Hinukh is rejected—namely, that the father’s commandment is not dependent on the son’s legal competence—or whether this is only a local rejection with respect to the commandment of appearance, while elsewhere in the Torah that reasoning still stands. There are differing opinions among the decisors on this issue, and this is not the place to elaborate.