Vayigash (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).

---

Mida Tova — Eve of the Holy Sabbath, Parashat Vayigash, 5766

Questions

1. Why does one not derive from something that has itself already been derived?
2. Is a hekesh considered as though it were written explicitly in the verse?
3. What is the dispute between Rabbi Akiva and Rabbi Ishmael regarding heimenu ve-davar aher?
4. What is the connection between all this and Maimonides’ approach to midrashically derived halakhot?
5. A possible halakhic implication of the interpretive distinctions among the various kinds of hekesh.
6. Heimenu ve-davar aher as an expression of an interpretive hekesh, as opposed to the ordinary hekesh, which is an expansive hekesh.

The Principles

Hekesh (a juxtaposition-based analogy). Heimenu ve-davar aher (“from it and something else”).

A. Summary of Last Year’s Article

“And these are the names of the sons of Israel who came into Egypt, Jacob and his sons: Reuben, Jacob’s firstborn.”
(Genesis 46:8)

“ ‘Sons of Israel’ — Jacob is called ‘Israel,’ as it is written: ‘Your name shall no longer be called Jacob, but Israel.’ Isaac is called ‘Israel’: ‘And these are the names of the sons of Israel who came into Egypt, Jacob and his sons.’ Abraham is called ‘Israel’…”
(Genesis Rabbah, parashah 63)

“ ‘Jacob and his sons’ — Scripture juxtaposes Jacob to his sons: just as Jacob was righteous and fearful of sin, so too his sons were righteous and fearful of sin. Another interpretation: just as Jacob was one of the Patriarchs, so too his sons.”

Rabbi Shmuel bar Nahmani said: From where do we know that Scripture weighed them against the Patriarchs of the world? As it is said: “Your fathers went down into Egypt with seventy persons.” This teaches that the deeds of the tribes were equal in weight to those of the Patriarchs of the world, as it is said: “Instead of your fathers shall be your sons.”

Another interpretation: “Jacob and his sons” — just as Jacob was married, so too all his sons were married. Even Pallu and Hezron, one of whom was one year old and the other two years old, wives were arranged for them, as it is written: “Each man and his household came,” so that they would not intermingle in Egypt.
(Midrash HaGadol, cited in Torah Shelemah, sec. 52)

We began the article by presenting two ways to read the verse cited above. On the one hand, the words “Jacob and his sons” can belong to what follows them, that is, they can be taken as a heading for the beginning of the count of the sons. According to this interpretation, the verse should be read as follows: “And these are the names of the sons of Israel who came into Egypt: Jacob, and his sons: Reuben, Jacob’s firstborn…” On the other hand, these two words can also be attached to what precedes them, so that the enumeration of the sons begins only afterward, and the verse is read as follows: “And these are the names of the sons of Israel who came into Egypt (Jacob and his sons): Reuben, Jacob’s firstborn…” According to the second interpretation, a new problem arises: what is the function of the words “Jacob and his sons”? It would seem that they are an incidental note, teaching us that those who are immediately to be counted — Jacob’s sons — did not descend to Egypt alone; Jacob descended with them as well. We suggested that according to this interpretation these two superfluous words are intended for a gezerah shavah (verbal analogy).

In the sheet for Parashat Miketz, 5765, we noted that in many midrashim there are certain components that were received by tradition and other components that were added by the authors of the midrash themselves. There are various indications that help us isolate these two kinds of components. Presumably, the elements common to all the interpretations in a given cluster are those that were received by tradition, whereas the rest were likely added by the interpreter. Looking at the cluster above in this way suggests that what was received by tradition was a hekesh between Jacob, as the source, and his sons, as the objects of comparison. The differences lie in the conclusions drawn from the hekesh, which arise from the interpreters’ reasoning or from textual considerations.

We pointed out that there may be a different explanation for the common element in a cluster of interpretations. Sometimes there is some difficulty in the verse from which one can infer the instruction to apply a particular hermeneutical principle. According to this suggestion, all the interpretations in the cluster use the principle of hekesh because of the difficulty in the verse that generated the interpretation: two superfluous words. The fact that they form two items in a list instructs us to perform a hekesh. Here too, the conclusions are already the result of considerations that also depend on the interpreters’ reasoning. According to the first reading we suggested above, it seems that the basis of the hekesh is a difficulty in the plain sense of the verse, and not necessarily a tradition.

In the second part, we discussed the nature of the interpretive tool called hekesh (see also the sheet for Parashat Vayakhel, 5765). In some places, the term “hekesh” denotes a different principle, or comparative interpretation in general. In rabbinic literature, when it appears as a distinct hermeneutical principle, it generally denotes a comparison between two things written next to one another. We saw that it does not appear at all as an independent principle in the list of principles in the baraita of Rabbi Ishmael. Nor does one find a principle by that name in the list of the thirty-two principles of Rabbi Eliezer son of Rabbi Yose the Galilean.¹ Rabbi Samson of Chinon, in Sefer Keritut (“Houses of the Principles,” House 2, sec. 13), explains that hekesh was not counted among the formal lists of principles because it is considered as though it were written explicitly in the verse itself. On the meaning of that explanation, see the sheet for Parashat Miketz.

As for the meaning of the term “hekesh” itself, we saw that some understood it as comparison and likeness, while others interpreted it in the sense of striking or pressing one thing against another. Several commentators wrote that both explanations mean the same thing, but there is certainly room to distinguish between them. According to the first explanation, we view the two things within the general framework in which they appear, from the list that includes them. According to the second explanation, the conclusion is learned from the very fact that the two items “knock” against one another, that is, that they are adjacent. This is a hekesh grounded in analogy rather than deduction.

The medieval authorities disputed whether a person may formulate a hekesh on his own — Tosafot to Sukkah 31a says yes, Rashi there says no. The Talmud states that derivation by hekesh has great force: “one does not refute a hekesh” (Babylonian Talmud, Menahot 82b). Rashi, in the sugya there in Menahot, explains this on the grounds that a hekesh is received by tradition from Sinai, like a gezerah shavah. According to Tosafot, we saw that hekesh is derived by the Sages themselves, and therefore the rule that “one does not refute a hekesh” is apparently based on the fact that hekesh is a very powerful and compelling principle.²

The author of Havot Yair, responsum 203 — and likewise in his Mar Kashisha, p. 69 — distinguishes between two fundamental kinds of hekesh: one is essential, based on some superfluity or difficulty in the text, that is, on textual compulsion; the other is based on mere adjacency and comes to support an already known law.³ In his opinion, the rule “one does not refute a hekesh” applies only to the first type.

What is the consequence of this distinction? According to Rashi, a hekesh founded on a difficulty is one that we reached by reasoning, because of the difficulty, and not because of a received tradition. If so, it can be challenged. By contrast, a hekesh not derived from a difficulty is apparently one that we received by tradition. To such a hekesh the principle “one does not refute a hekesh” applies. On the other hand, according to Tosafot in Sukkah and the author of Halikhot Olam, who understand the rule that a hekesh cannot be refuted as stemming from the textual or logical necessity of the hekesh, the situation is reversed: if the hekesh arises specifically from a difficulty, then it cannot be challenged, because it is necessary. But if there is no difficulty that leads to the hekesh, then it certainly can be challenged. The author of Havot Yair apparently assumes the approach of Tosafot.

In this week’s article we will see an extension of this distinction between two kinds of hekesh, and we will observe its halakhic implications. We will view from another angle the special force possessed by a hekesh that arises from an interpretive difficulty, or from some other textual compulsion.

B. Heimenu ve-davar aher

Introduction

We presented above two accepted types of hekesh:

1. A hekesh based on a tradition that one should perform a hekesh in some biblical context.
2. A hekesh based on a difficulty in the verse.

There is room to see a difference between these two types. The first type does not necessarily constitute an interpretation of the Torah itself; one can view it instead as an expansion of the written text on a kind of “second floor” above it. Maimonides’ method, as presented in the sheet for Parashat Yitro, 5765, is that all midrashic derivations are expansions of the written text.⁴ But a hekesh generated by a difficulty may constitute an interpretation of the biblical words themselves, because in such a case the plain-sense alternative is inadequate. If that is indeed so, then the interpretive reading achieved by way of midrash receives the status of de-oraita (direct Torah law), since it is the only interpretation of the scriptural words themselves.

In this week’s article we will examine another possible motivation for performing a derivation, one very similar to the second possibility above, namely, a difficulty in the verse. When several words in the Torah require explanation, and we have no plain-sense way to explain them, we make use of the tools of midrash for that purpose. In such a case, the halakhic result of the midrash is an interpretation of those biblical words for which we constructed the derivation.

We will also encounter another interesting phenomenon: the Torah itself performs a hermeneutical derivation of hekesh. Scripture itself instructs us to perform a hekesh between two contexts, which of course greatly strengthens the claim that a law learned in this way should be considered as though it were explicitly written in Scripture itself.

Heimenu ve-davar aher

Such a phenomenon appears in the sugya of heimenu ve-davar aher — “from it and something else,” that is, a law derived partly from what is explicit in the text itself and partly from another source (see Babylonian Talmud, Zevahim 57a and parallels). As is well known, in the area of sacrificial law there are limitations on deriving one derivation from another — see the sugyot on lomed min ha-lamed, “learning from something already learned,” in Zevahim around folio 50. The Gemara discusses various kinds of hermeneutical principles there, and asks whether one may derive one on top of another. For example, may one derive a law by kal va-homer (an a fortiori inference) from a law that was itself learned by kal va-homer? Or a law by kal va-homer from another law learned by gezerah shavah, and so on? An agreed conclusion of the Gemara is that one does not derive a hekesh from a hekesh; that is, a law learned by hekesh does not itself go on to teach something else by way of hekesh.

The Gemara in Zevahim 57a, Yoma 57a, and Menahot 78a discusses several cases in which, at least seemingly, a hekesh is learned from a hekesh, in contradiction to that rule. The Gemara cites a tannaitic dispute regarding heimenu ve-davar aher: is it considered a hekesh — Rabbi Ishmael says yes — or not — Rabbi Akiva says no? If it is not considered a hekesh, then one may derive a further hekesh from it. If it is a hekesh, then one may not derive a further hekesh from it, because that would be a hekesh from a hekesh.

The source of the dispute in Zevahim 57a

In the passages dealing with priestly gifts, the Torah states concerning the firstborn of cattle, sheep, and goats:

“And their flesh shall be yours; like the wave-breast and like the right thigh, it shall be yours.”
(Numbers 18:18)

In this verse, the Torah itself makes a hekesh between the firstborn offering and the law of the breast and thigh. This is a unique hekesh, because it is not made by the Sages on the basis of the adjacency of items in a list. Here the Torah itself juxtaposes the two matters.⁵

In the sugya in Zevahim 57a, the Sages seek to derive from here the permitted time for eating the meat of the firstborn offering. The problem is that the verse does not explain to which breast and thigh the firstborn is to be compared. We find the law of the breast and thigh in several kinds of offerings: peace offerings, thanksgiving offerings, and the ram of a Nazirite. In a thanksgiving offering, the breast and thigh may be eaten for a day and a night, whereas in peace offerings they may be eaten for two days and a night. Thus, the law of the firstborn depends on the question of to which case we are to compare it.

Rabbi Yosei HaGelili, in that sugya, wishes to compare the firstborn to the thanksgiving offering, because the rule in our hands is: where the comparison may be taken toward leniency or toward stringency, we make the comparison toward stringency. Requiring the breast and thigh of the firstborn offering to be eaten within a day and a night is more stringent, and therefore we should compare the firstborn specifically to the thanksgiving offering and not to the peace offering. As for the ram of a Nazirite, see Tosafot there, s.v. ve-khi.

Rabbi Akiva rejects this and says that the addition at the end of the verse, “it shall be yours,” teaches us to add one more day of eating. That is, basically he does compare the firstborn to the thanksgiving offering, but an additional word in the verse adds another day. Rabbi Ishmael, however, rejects this and argues that one should not compare it to the thanksgiving offering but rather to peace offerings, because the law in the thanksgiving offering itself is also learned by hekesh, and there is no hekesh after a hekesh.

The Gemara then explains that Rabbi Akiva too agrees that there is no hekesh after a hekesh. However, the derivation of the thanksgiving offering from peace offerings is not considered a hekesh, because part of the law is written explicitly in the thanksgiving offering and only part of it is learned by hekesh from peace offerings. In the passage about the thanksgiving offering it is stated explicitly that it may be eaten for a day and a night, but it does not specify what is eaten. That is learned by hekesh from peace offerings, namely, that it is the breast and thigh. The combination of what is learned by hekesh — “something else” — with what is explicit — “from it” — yields the law: the breast and thigh of the thanksgiving offering may be eaten for a day and a night. And from the two together — heimenu ve-davar aher — one wishes to learn about the firstborn as well, that its breast and thigh may be eaten for a day and a night. According to Rabbi Akiva, this is possible, because heimenu ve-davar aher is not a hekesh; according to Rabbi Ishmael, it is considered a hekesh, and therefore one cannot learn from it by a further hekesh.

Immediately afterward, the Gemara in Zevahim brings two more examples in which this rule is applied: the sprinklings on Yom Kippur, and the number of tenths of an ephah in the thanksgiving loaves and the two loaves. We will now briefly discuss the first.

First example: sprinklings in the Sanctuary and in the Holy of Holies

The first example concerns the sprinklings in the Yom Kippur service:

“And he shall atone for the holy place, because of the impurities of the children of Israel and because of their transgressions, for all their sins; and so shall he do for the Tent of Meeting, which dwells with them in the midst of their impurities.”
(Leviticus 16:16)

From here we learn that the sprinklings in the Sanctuary — that is, in the inner area outside the Holy of Holies — are seven downward and one upward, just like those in the Holy of Holies, both for the bull and for the goat. But regarding the bull and the goat of the sin offering themselves, we learn the number of sprinklings, one upward and seven downward, from one another. In the case of the bull, only the seven downward are explicitly counted, while the upward sprinkling is mentioned without a number. In the case of the goat, the one upward is explicitly counted, while the downward sprinklings are mentioned without a number. The Gemara states that they are juxtaposed to one another, and now we know that in each case there is one upward and seven downward. All of this concerns the sprinklings in the Holy of Holies. From there the Torah instructs us, in the verse above, regarding the Sanctuary as well, that there too, both for the bull and for the goat, one sprinkles one upward and seven downward.

Thus, in both the bull and the goat, we learn from one another by way of heimenu ve-davar aher. If this is a reciprocal hekesh, then it is difficult to understand how the Torah can then write that the Sanctuary is to be compared to the Holy of Holies — is that not a hekesh from a hekesh? Therefore, the Gemara concludes that it is evident from here that heimenu ve-davar aher is not a hekesh.

Rabbi Ishmael, who holds that heimenu ve-davar aher is a full-fledged hekesh, rejects this in two ways:

1. Here the analogies are not performed along the same axes, and therefore one may continue to derive from the first analogy. The first hekesh compared the animals — the bull and the goat — to one another. The second compares places — the Holy of Holies and the Sanctuary — to one another. This is unlike the case of the firstborn, where the breast and thigh of the thanksgiving offering are learned from peace offerings, and the breast and thigh of the firstborn are learned from the thanksgiving offering.
2. The learning occurs all at once. The medieval authorities disagreed about the meaning of that statement, depending on the different textual versions in the Gemara. See the three views in Tosafot, s.v. ve-iba’it eima, Zevahim 57b:
3. Rashi in Zevahim there: the derivation from the Holy of Holies to the Sanctuary is needed in order to teach that there are sprinklings above and below, and this is not a hekesh from a hekesh, since “above” and “below” are written explicitly in both places. Once we compare the law that one must sprinkle above and below, the numerical details — one and seven — are simply carried along with it. But in the case of the firstborn, the situation is different, because the hekesh that the Torah makes is not to the eating time of the thanksgiving offering, which is explicit there, but to the breast and thigh — “like the wave-breast and like the right thigh, it shall be yours.” Yet the breast and thigh are themselves learned by hekesh from peace offerings, and therefore that is indeed a hekesh from a hekesh. If the verse had explicitly compared the firstborn to the thanksgiving offering regarding eating time, then the derivation concerning the breast and thigh could also have been brought along secondarily, as in the case of the sprinklings.
4. Rabbenu Hananel: the derivation of the hekesh between the bull and the goat in the inside service is made for the outside service as well at one stroke. No additional hekesh is needed.
5. Rabbi Isaac: the derivation proceeds from one upward sprinkling in the inner goat to the bull and goat outside, and from seven downward in the outer goat to the bull and goat outside.

The rule of “learning from what has been learned”

We must now ask ourselves at what point this dispute is rooted. By way of background, we must first ask why one indeed does not derive from what has already been derived. The simplest conception is that the hermeneutical principles are tools for interpreting Scripture. But laws learned through midrash are not themselves scriptural texts, and therefore one cannot apply to them tools designed for the interpretation of scriptural verses.

This need not require us to adopt Maimonides’ view — discussed in the sheet for Parashat Yitro, 5765 and elsewhere — that midrashic derivations expand what is stated in Scripture, rather than uncover what is latent within it, as Nahmanides held. One can say that even according to Nahmanides, laws learned through scriptural interpretation are not considered Scripture itself, even if their halakhic status is that of de-oraita laws, and therefore it is not proper to apply to them the hermeneutical tools intended for interpreting Scripture.

If this is correct, however, we must ask ourselves why the rule that one does not derive from what has already been derived is stated only with respect to sacrificial law and not throughout the Torah. If laws learned through midrash are not considered Scripture itself, then one should not be able to apply hermeneutical tools to them in any halakhic context, not only in sacrificial matters.

Tosafot, however, in Menahot 78a, s.v. heimenu ve-davar aher, explicitly writes that this is the very definition of the rule: what is written explicitly in Scripture may be used as a basis for hermeneutical derivation, whereas what is not included within Scripture itself cannot be subjected to the hermeneutical principles. Tosafot does not explain this rule, but simply states that this is its boundary. Moreover, those principles from which one may derive further by other principles are, in his view, considered as though they were explicitly written in Scripture. For example, one may derive a further gezerah shavah from a gezerah shavah, and therefore it is treated as though it were written in Scripture itself, and one may also make a hekesh from it.

This is a complex sugya, and it is difficult to enter into it here, because there are principles from which one may derive by some principles but not by others. If so, the criterion seems not to depend only on the basic principle, but also on the principle later applied to it.

Rationales of the dispute

In light of Tosafot in Menahot, it appears that Rabbi Ishmael and Rabbi Akiva disagree about the status of a derivation in which part is written explicitly and another part is completed through a hekesh. According to Rabbi Ishmael, this is a hekesh, and therefore one may not derive from it by a further hekesh, because part of it still is not explicitly written in Scripture. According to Rabbi Akiva, by contrast, this is not a hekesh but something written explicitly in Scripture, and therefore one may perform a further hekesh upon it.

On what does this dispute depend? Why does Rabbi Ishmael see this derivation as a hekesh, whereas Rabbi Akiva sees it as something explicitly written in Scripture?

Maimonides’ method may help us understand this more easily. According to Maimonides, midrashic derivations do not expose what is already present in the text, but rather expand what is said there. If so, the halakhic result of midrashic derivation is not latent in the text, but constitutes a newly created halakhic construct. But what about a derivation that teaches us that “the fruit of a goodly tree” means an etrog?⁶ Presumably such a derivation would count as a de-oraita law, because it interprets words in the verse. There is no room to view it as an expansion of Scripture, for if it were an expansion, we would have to ask what the original meaning of the words “the fruit of a goodly tree” was. We have no other plain-sense interpretation. In such a case it is clear that the derivation reveals to us the plain meaning of the words, and therefore after the derivation the law that one must take specifically an etrog is a de-oraita law. Where the words have no alternative plain-sense interpretation, the so-called midrash is actually plain sense rather than interpretation beyond the plain sense.

And what of the derivation that the breast and thigh of the thanksgiving offering may be eaten for a day and a night? The Torah says that something may be eaten for a day and a night. The hekesh from peace offerings reveals to us that the thing eaten in the thanksgiving offering is the breast and thigh. If so, here too the derivation interprets Scripture rather than expanding it. The same is true of the sprinklings of the Yom Kippur bull and goat. There too Scripture states that sprinkling is required, and the derivation reveals the number of sprinklings. If so, after the derivation it is clear that the Torah means that number of sprinklings; in other words, the derivation has revealed the interpretation of the verse. So it is in all the examples of heimenu ve-davar aher.⁷

To this we may add the interesting fact that in all the examples we have brought, these are unusual hekeshim, because the Torah itself performs them. It is difficult to say that the Torah itself refers to something not contained within it and makes a comparison to that. If the Torah performs a hekesh from the firstborn to the thanksgiving offering, then clearly the law of the thanksgiving offering is a law written in the Torah. For example, we would never imagine that the Torah would refer in one of its verses to a rabbinic law that has no existence whatsoever on the de-oraita plane. This is a further indication of the claim that heimenu ve-davar aher creates a law explicitly written in Scripture. And perhaps for precisely this reason we use this rule only when the hekesh is performed by the Torah itself. Only then is it clear to us that the earlier hekesh counts as something explicitly written.

What, then, according to Rabbi Ishmael? How can he regard the hekesh as expanding what is written in the Torah, if the derivation is interpreting words written in the Torah and we have no other explanation for them? As for the fact that the Torah itself performs the hekesh, that presents no difficulty for him, because in his view the Torah does not in fact perform such a hekesh: according to him, the first derivation is itself a hekesh, and there is no hekesh after a hekesh.

It may be that Rabbi Ishmael holds that there is a plain-sense interpretation even without the midrash, and therefore even in a case of heimenu ve-davar aher the midrash expands rather than reveals. For example, “the fruit of a goodly tree” can be read as some kind of fruit, not necessarily a specific fruit. The derivation narrows the law and requires us specifically to take an etrog, but that is not the plain meaning of the Torah. Likewise regarding the sprinklings: the Torah requires sprinklings above and below, but the number of sprinklings is not fixed. The derivation determines the number of sprinklings, but that is not the uncovering of the plain meaning of the Torah; it is an expansion — or, in our case, a narrowing — of what is found there.

Implications of this explanation

As stated above, Rashi explains in Zevahim in the opposite direction: if we make a hekesh regarding something explicitly written, we may drag along with it details that are learned by hekesh from elsewhere. Tosafot, however, in Zevahim 57b, s.v. ve-iba’it eima, and in Yoma 57a, s.v. hutz, challenges Rashi from several places where it is assumed that one does not derive a hekesh from a hekesh even in situations where the compared details could have been brought along incidentally with a hekesh about something explicitly written.

According to our approach, perhaps one may say that the rule of heimenu ve-davar aher is applied only when the Torah itself performs the hekesh, and not when the Sages perform a hekesh on the basis of the biblical text. When the Sages perform the hekesh, we have no indication that the law learned from the first hekesh is contained in the written text itself, and therefore it counts as a hekesh from a hekesh. But when the Torah performs the hekesh, it is clear that the law from which we are making the comparison is indeed contained in the text itself.

So too it appears from the end of Tosafot, s.v. hutz, in the Yoma sugya, where he explains Rashi by pointing to a textual hint in the words “and so shall he do.” That is, in that case the first hekesh is indeed as though explicitly written in the Torah, and therefore one may continue to derive from it.

Difficulties with this explanation

The definition that the various views regarding heimenu ve-davar aher — whether or not it is a hekesh — are based on a distinction between what is written in the Torah and what is not, does not seem to fit what emerges from the sugyot.⁸

1. We saw above that if the hekeshim are not performed along the same axes, then according to Rabbi Ishmael one may derive from heimenu ve-davar aher. According to our approach, it is not clear why. The law that emerges from the first hekesh is not explicitly written in the Torah, since according to Rabbi Ishmael it is a full hekesh. If so, why may one derive from it by a further hekesh on a different axis? For example, the sprinklings are learned from goat to bull and from bull to goat — that is, between different animals. But the Sanctuary is learned from the Holy of Holies — that is, between different places. Yet how can one learn that in the Sanctuary the goat requires seven downward sprinklings from the fact that in the Holy of Holies the bull requires seven downward sprinklings? According to Rabbi Ishmael, the teaching law is itself the product of a hekesh and is not explicit. What difference does it make that the second hekesh is not on the same axis?
2. Rashi explained above, in the second explanation in the Zevahim sugya, that if we learn by hekesh from the Holy of Holies to the Sanctuary regarding the fact that sprinkling is required both above and below, then one may also drag along with it the learning regarding the numerical counts of the sprinklings. But apparently this is difficult: how are we learning by a further hekesh from laws that are not explicitly written in Scripture, and that according to Rabbi Ishmael are a full hekesh?

It would seem that in such a case the details merely define the laws that are explicitly written, and therefore they too are considered as though explicitly written in Scripture. Consequently one may also derive from them to another context. But if so, the same should have been true in the case of the firstborn and the thanksgiving offering. True, there the hekesh is made regarding the breast and thigh and not regarding the time, but in the end it too is as though written explicitly in Scripture, so why should one not derive from it?

Connection to the characteristics of hekesh that we encountered last year

In last year’s article we saw that there are two kinds of hekesh: one based on a difficulty in the plain sense, and another that is the result of a comparison between items in a list. The basis of the difference between them is that a hekesh based on a difficulty in the plain sense proposes an alternative interpretation of the verses where there is no available plain-sense alternative. If so, such a derivation should be considered plain-sense interpretation and not merely a midrashic derivation.

Here we encountered another hekesh that should count as plain-sense interpretation: where the hekesh interprets words in the verses, and/or where the Torah itself hints to us that the derivation is correct — for example, if the Torah itself performs the hekesh, or if it uses extra words such as “and so shall he do.”

The implications we encountered in last year’s article were that such a hekesh cannot be refuted, and that one may derive from it by a further hekesh without violating the rule that there is no hekesh after a hekesh. According to our approach, one can expand the rule of heimenu ve-davar aher not only to hekeshim performed by the Torah itself, but also to hekeshim performed by the Sages if they are based on a difficulty in the verse and not merely on the shared appearance of items in a biblical list. Such hekeshim should be considered as though explicitly written in Scripture, and therefore one may perform a further hekesh on top of them.

According to our proposal, the term heimenu ve-davar aher means an interpretive hekesh, as opposed to an expansive hekesh. It may be that any hekesh based on an interpretive difficulty can serve as the basis for a further hekesh built upon it, and will not be subject to the rule that there is no hekesh after a hekesh. Quite a number of difficulties raised by the medieval authorities may perhaps be resolved in this way.

A possible halakhic implication

It may be that this distinction also has a halakhic implication. Maimonides, in the second root of Sefer HaMitzvot, holds that laws transmitted by Sinaitic tradition and given an anchor in Scripture have the status of de-oraita laws. This is unlike new laws created by midrashic derivation, and also unlike laws regarding which we have a tradition but for which we have no anchor in Scripture — that is, a law given orally to Moses at Sinai — which in Maimonides’ view also receive the status of laws of rabbinic standing.⁹ In the sheet for Parashat Yitro we explained this on the basis of Maimonides’ definition of the concept “de-oraita,” which differs from the accepted definition. According to Maimonides, a de-oraita law is a law found in the written text, as opposed to a law transmitted orally, or a law that constitutes an expansion of what is in the text by means of midrashic derivation.

According to this conception, a hekesh that anchors a law transmitted to us by tradition gives the transmitted law the status of de-oraita. But what about a case in which the tradition transmitted to us is only the possibility of making a hekesh between two contexts, and not the law itself? In such a case, the law comes into being only now, through the derivation itself. Presumably Maimonides would define such a case as a law of rabbinic standing and not as de-oraita.

By contrast, derivations generated by a difficulty in the text, or by the need to supply a verbal interpretation for certain words, can plausibly be said to have the status of de-oraita laws. After all, once the derivation has been performed, the conclusion learned from it is what those biblical words mean, and is therefore found in the written text itself. Such a law, according to Maimonides’ definition, would be a de-oraita law.

This direction raises the possibility of resolving quite a few difficulties raised by commentators against Maimonides’ position, when they pointed to many places where a law derived by midrash is given the status of de-oraita, whether by Maimonides himself — in which case there would be an internal contradiction in his method — or in rabbinic sources — in which case there would be a contradiction between Maimonides’ ruling and those sources. According to our approach, it may be that at least some of those sources are based on derivations generated by an interpretive difficulty in the text, and therefore even according to Maimonides they have the status of de-oraita laws.¹⁰

If so, what emerges here is the possibility that all the interpretive distinctions we have made — between derivations whose halakhic conclusion was transmitted to us by tradition, derivations regarding which some other partial information was transmitted, and derivations that arise from a difficulty in the plain sense of the text — have halakhic consequences for the status of the laws learned in those various ways. A thorough examination of this conclusion requires systematic research, and this is not the place for it.

Footnotes