Yitro (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 — Eve of Shabbat, Parashat Yitro, 5765

The principles involved

• A fortiori inference.

Questions

• The Sages’ self-reflective stance.
• What are defective derivations?
• Does an interpreter do things “on his own judgment”?
• What is the difference between judgment and midrash (rabbinic interpretive teaching)?
• A brief note on the heap paradox as a qualification on the logic of everyday language.
• Do the hermeneutical principles decode or extend?
• What is a de’oraita halakha (a law of biblical status), what is a derabbanan halakha (a law of rabbinic status), and what is an asmachta (a scriptural support)?
• The words of Torah are fruitful and multiply.

A. What does it mean that Moses acted “on his own judgment”?

“(10) The Lord said to Moses: Go to the people and sanctify them today and tomorrow, and let them wash their garments.

“(15) And he said to the people: Be ready for three days; do not approach a woman.”

Exodus 19:10, 15

It was taught: Three things Moses did on his own judgment, and the Holy One, blessed be He, agreed with him: he added one day on his own judgment, he separated from his wife, and he broke the tablets.

He added one day on his own judgment. What did he derive? “Today and tomorrow” — today is like tomorrow: just as tomorrow includes its night, so too today includes its night. But the night of the present day has already passed. Conclude, then, that there must be two days besides today. And from where do we know that the Holy One, blessed be He, agreed with him? Because the Divine Presence did not rest until Sabbath morning.

He separated from his wife. What did he derive? He reasoned an a fortiori inference by himself, saying: If Israel, with whom the Divine Presence spoke only once and for whom a time was fixed, and yet the Torah said, “Be ready … do not approach a woman,” then I, with whom the Divine Presence speaks at every moment and for whom no time is fixed — all the more so. And from where do we know that the Holy One, blessed be He, agreed with him? As it is written: “Go, say to them: Return to your tents,” and immediately after that it is written: “But you, stand here with Me”; and some say: “With him do I speak mouth to mouth.”

He broke the tablets. What did he derive? He said: If with regard to the Passover offering, which is only one of the 613 commandments, the Torah said, “No foreigner may eat of it,” then here, where it is the whole Torah, and Israel are apostates — all the more so. And from where do we know that the Holy One, blessed be He, agreed with him? For it is said: “which you broke,” and Resh Lakish said: “More power to you for having broken them.”

Babylonian Talmud, Shabbat 87a and Yevamot 62a

Introduction

Those who work within halakha (Jewish law) are not generally characterized by self-reflective discussion. It is difficult to extract from them how they themselves understand their halakhic activity, or to derive from their words meta-halakhic reflections in general. Even if we do find such a reflection, it will usually be indirect, attached to a biblical figure or event. A striking example is the exposition cited above, which concerns Moses our teacher and focuses on the preparations for the revelation at Mount Sinai. We will try to see what such a midrash contains on the plane of meta-midrashic conceptions. In what form does this interpreter understand the interpretive activity itself? As we shall see, the main point turns on the meaning of a single word: “on his own judgment.”

In the midrash above, three exercises of judgment by Moses our teacher are described as having been made on his own judgment, and on their basis he ruled contrary to what seems to follow, implicitly or explicitly, from the will of God. In the end, as the midrash says, God agreed with him.

This midrash is extremely puzzling. Why does the interpreter assume in the first place that Moses was engaged in interpretation at all? Could he not have used a form of judgment that was not formal midrashic reasoning? Is this really a “derivation” in the formal sense? Can one act against the will of God on the strength of some exercise of judgment or other? And on the other hand, if the tools Moses uses are legitimate interpretive tools, such as the hermeneutical principles received at Sinai, then in what sense was this his own unique and independent judgment? Why did God need to agree?

The midrash itself

The midrash presents three cases, two of them before the giving of the Torah, in the preparations leading up to it, and the third immediately afterward:

1. He added one day on his own judgment, by force of a derivation that looks like a textual comparison: “today” like “tomorrow,” both of which appear in verse 10 above. This was done against an explicit command of God, who instructed that there be two days, whereas Moses on his own judgment ruled that there should be three.
2. He separated from his wife, by means of an a fortiori inference from the command given to Israel in verse 15 above, in light of the intensity of his encounters with God. Here the term “a fortiori inference” appears explicitly in the wording of the midrash, at least in the passage in tractate Shabbat. This stands in tension with the commandment to be fruitful and multiply; see the context in tractate Yevamot.
3. He broke the tablets, by means of an a fortiori inference from the Passover offering: if even that is not fit for apostates, then surely the whole Torah is not. This stands in opposition to God’s instruction to deliver the tablets to Israel, and to the sanctity with which they were to be treated.

The basic difficulty

The main difficulty for our purposes does not lie in the validity of Moses’ arguments themselves, each of which requires separate study. The problem we wish to consider emerges in the comments of Tosafot in both passages, in Shabbat and in Yevamot. Tosafot raise this point consistently throughout their comments on both sugyot; the line of analysis is fairly parallel, apart from a few small differences. Let us begin with the first Tosafot comment in the passage in Shabbat, where they write, under the lemma “today is like tomorrow”:

This is not a full derivation; rather, there is only an implication that “today” means literally today. For otherwise it would not be something done on his own judgment.

Similarly, in the next comment Tosafot write, under the lemma “If Israel…”:

And if you ask: what does it mean to say that he added it on his own judgment? It is a law of the Torah, for an a fortiori inference is available for interpretation. One may answer that it was not a complete a fortiori inference, for that case is different because it concerns the Ten Commandments.

The first Tosafot comment refers to the comparison of “today” to “tomorrow.” The second refers to the derivation regarding separation from one’s wife, where the wording of the midrash explicitly uses the expression “a fortiori inference.” Both comments raise a very basic difficulty for any understanding of the hermeneutical principles by which the Torah is interpreted: why should a consideration based on an a fortiori inference, or on a textual comparison, both of which belong to those principles, be regarded as something done “on Moses’ own judgment”? Seemingly, he merely used a hermeneutical rule, a legitimate interpretive tool received at Sinai, in order to interpret the words of God.

A first lesson

Already here one can discern a first lesson; see also last week’s page, where we made the same point regarding the concept of asmachta. Whenever we reach the conclusion that a certain law produced by a derivation is rabbinic, and from that infer that the derivation is only an asmachta, we must thereby assume that the derivation that led to that law is itself invalid in some respect. That is, the derivation is “defective” in some sense. It does not satisfy the full criteria required of the hermeneutical principles, and therefore it cannot serve as a full source capable of generating a de’oraita law. If that derivation really did have a standard structure, that is, if it were a valid interpretive inference, then the law that emerges from it would be a law of biblical status. Even if someone were to say that the law is rabbinic, the derivation could then simply be performed now, and on its basis one could show that the law in question is biblical.

Since immediately after the close of the Talmud the tools of derivation were already losing their accessibility, and we no longer really understand those elusive criteria, all we can do is infer indirectly that there is something defective in the derivation. But it is very difficult for us to identify exactly what that defect is. Indeed, most commentators, already from the period of the medieval authorities onward, can determine on various grounds that a certain derivation is only an asmachta, but they generally do not bother to explain what is wrong with that derivation and why it cannot serve as a sufficient basis for a law of biblical status.

For that reason, it seems, surprisingly, that a systematic study specifically of asmachtot, which are not full derivations but defective ones, can yield a good many important insights about the correct way to work with the hermeneutical principles in their pure form.

If we return now to the two Tosafot passages cited above, we immediately see that they are built somewhat differently. The first deals with a textual comparison, and is content with the theoretical claim that the derivation is necessarily not a full one. It notices the point we raised above, that there must be some defect in the derivation if it is not to count as a full interpretation, but it does not explain what that defect is. By contrast, the next Tosafot passage, which deals with an a fortiori inference, finds it necessary to explain what the defect in this derivation is. The reason is that an a fortiori inference contains a logic clear to all of us. Therefore it is not enough merely to say that this is not a full derivation; one must explain what defect there is in a line of reasoning that appears reasonable and seems to satisfy the logic and criteria of the a fortiori principle.

For that reason as well, in the Tosafot comment near the end of the sugya, under the lemma “If with regard to the Passover offering…,” which deals with the inference from the Passover offering to the breaking of the tablets, Tosafot explain that the third derivation too is not a full derivation, and again they take the trouble to provide a reason. We should not be surprised to discover that there too the issue is an a fortiori inference.

The nature of derivations according to Tosafot

Another important point emerges from Tosafot’s remarks. The explanations Tosafot offer for why the derivations are not complete are always explanations that raise a possible objection to the a fortiori inference. By contrast, the a fortiori consideration itself must be clean and compelling. A striking example is found in the Tosafot comment under the lemma “and for them a time was fixed,” the third comment there, which examines the reasoning behind separation from one’s wife and explains in detail why this is in fact a sensible argument. This is the opposite of the other Tosafot comments, which focus on the defective side of Moses’ derivations.

Thus Tosafot express a tension that accompanies all three derivations. On the one hand, the reasoning must be correct and true, for that very reasoning is what led Moses our teacher to his new conclusions. On the other hand, the reasoning must be defective in some sense. The way to meet both interpretive demands is to find genuine logic in the argument while also identifying a possible rebuttal against it.

In an overall view, one can say that Tosafot claim that a derivation of this type cannot yield a binding law, because as a derivation in the formal sense it is vulnerable to objection. On the other hand, there was here a sound exercise of judgment, to which God agreed.

The clearest expression of this point is found in another Tosafot comment in the Shabbat passage, under the lemma “But you….” Tosafot ask there why the Sages understand that Moses did this on his own judgment and that God agreed with him, based on the verse “But you, stand here with Me.” Perhaps the verse “stand here with Me” is itself a command of God, and Moses separated from his wife because of that command, not on his own judgment.

Tosafot answer that had there been a direct command here, Miriam and Aaron would not have spoken against Moses for separating from his wife at God’s command. Tosafot then add an original explanation of why Miriam and Aaron nevertheless disagreed with him, even though God had agreed with him, for that too seems implausible. According to Tosafot, God agreed with him because a person is led in the path he wishes to take. But had Moses not decided this way, God too would not have wanted it. Therefore Miriam and Aaron express the position that this was the wrong act: Moses should have decided the opposite, and thereby caused God to want, or to agree to, the opposite.

Two important conclusions follow from this:

1. Since in our sugya the issue is a defective derivation, the logic of the argument is open, and one can certainly disagree with it. Consequently God’s will is not obvious here either; it will be determined by the decision of the earthly court.
2. It seems to follow that in a complete derivation, where there is of course no defect, Tosafot would say that it does indeed express God’s fixed and determinate will, and the derivation is merely a tool for uncovering that already existing will.

The course of the sugya according to Tosafot

Rabbi Elchanan Wasserman, author of Kovetz Shiurim, raises an objection to Tosafot in Kuntres Divrei Sofrim, section 1, subsection 16: what has their answer achieved? If this is not a complete a fortiori inference, then the Gemara’s original problem returns: “What did he derive?” This is not a full derivation, so how could Moses alter what God had commanded him? Rabbi Elchanan Wasserman’s own answer there raises another issue, into which this is not the place to enter.

According to our explanation, the answer is simple. Tosafot distinguish here between a defective derivation and an illegitimate argument. An argument that is not legitimate as a mode of biblical interpretation really cannot serve as a sufficient basis for overriding the will or command of God. But here we are dealing with an argument that is defective, yet not entirely so. It is a sound argument in itself, except that there may be a rebuttal against it. Such an argument is not false, but open. There may be disagreement about it, but it is not manifestly wrong. Regarding such an argument, Tosafot tell us that God Himself “forms His position” in light of our decision.

This clarifies the entire course of the sugya according to Tosafot. The Gemara begins with the question: “What did he derive?” That is, the Gemara assumes that an ordinary argument not grounded in established interpretive rules cannot serve as a basis for changing a divine command. To this, the Gemara replies by presenting three arguments that look like ordinary derivations, in other words, arguments based on hermeneutical principles, an a fortiori inference and textual comparison. But Tosafot add that these must necessarily be defective derivations, meaning that God Himself left their conclusions open, and His true will “takes shape” only after the decision of the earthly court takes shape: a person is led in the path he wishes to take. As noted, Tosafot’s approach implies that ordinary derivations are merely tools for uncovering the will of God. This is just ordinary interpretation, albeit on a different plane, and it reveals God’s will, which is not subject to the decision of the earthly court. Here all the laws concerning judicial error and what follows from it become relevant.

B. The character of the methods of interpretation

A basic assumption of Tosafot

Rabbi Moshe Pintchuk, in his article on the nature of the thirteen hermeneutical principles,¹ proposes two basic ways of understanding them:

1. The thirteen principles are interpretive tools. By means of them we interpret and understand the meaning of the words. The thirteen principles are the tools of the archaeologist, by which he uncovers what lies beneath the surface and is already there.
2. The thirteen principles are not interpretive tools. They do not reveal what already exists; rather, they are creative tools. The Oral Torah is the raw material, and the thirteen principles are the tools by which halakhot are produced from that raw material. The thirteen principles are the chisel and hammer with which the sculptor works.

Rabbi Pintchuk explains that the metaphors of archaeologist and sculptor are not accidental. At first glance they seem to perform the same action. The archaeologist extracts from the earth an object that already has a form, by removing the soil that surrounded and covered it. The sculptor too produces a form from a tree trunk or a stone by removing the unnecessary background and leaving the form he needs. Superficially this looks like the same action, but in fact it is utterly different. The sculptor creates, whereas the archaeologist reveals. Admittedly, in both cases the end product was already “inside” the material, but in the sculptor’s case this is only a formal fiction. In reality, only the material existed; the form was created entirely by the sculptor. In the archaeologist’s case, by contrast, both the material and the form already existed.

Tosafot, whose remarks we cited above, assume as a matter of course that when someone derives an a fortiori inference, a complete one and not a defective one, he is merely decoding what is written in the verse, that is, uncovering the will of God that was already embedded within it. Therefore they ask: why does the baraita refer to these additions as things done on Moses’ own judgment? The a fortiori inference “was given to be interpreted,” that is, it is a rule of decoding given to us at Sinai, and its application to the verses yields halakhot concealed within them. Clearly, even in their answer, which we have not entered into here, Tosafot do not retreat from that assumption.

But if we assume that the a fortiori principle is a creative and expansive tool, and not a decoding tool, then Tosafot’s question poses no difficulty at all. Moses really did add on his own judgment, even though he supported his move with an a fortiori derivation. Even if Moses’ derivation had been a complete a fortiori inference, the a fortiori principle, one of the methods by which the Torah is interpreted, would still not be a decoding tool but a creative one. It does not reveal what is written in the Torah itself, but rather adds to it and extends it. Hence this is quite properly called something done on his own judgment.²

The dispute between Maimonides and Nahmanides on the second root

It seems that on this very point Maimonides, in the second root, and Nahmanides, in his glosses there, disagree.³ As is well known, Maimonides states in the second root that laws that emerge from the hermeneutical principles belong to the category of “words of the Scribes,” that is, rabbinic law. These remarks aroused a tremendous controversy, and first among those who argued with him is Nahmanides in his glosses there. Nahmanides objects: how can hermeneutical principles given to us at Sinai, and Maimonides says this as well, see for example the page on Lekh Lekha, part 2, be applied to Scripture, which was likewise given at Sinai, and yet yield rabbinic laws?

Maimonides, in the course of his remarks, explains why he does not count among the commandments those commandments that are produced by derivations, and writes as follows:

Perhaps you may think that I refrain from counting them because they are not true. Whether the law that emerges from that principle is true or not true is not the reason. Rather, the reason is that whatever a person derives are branches from the roots that were stated explicitly to Moses at Sinai, and those roots are the 613 commandments. Even if the one deriving them were Moses himself, it would not be fitting to count them.

Maimonides describes the relation between laws generated by derivation and the verses from which those laws emerge with the phrase “branches from the roots.” That means that the midrash does not uncover what is written in the Torah, but extends it and creates new laws. These laws are not included in Scripture; they are an extension of it. According to this, it is quite clear that the hermeneutical tools are not tools of decoding and uncovering, like those of the archaeologist, but tools of creation and extension, like sculpture.

Nahmanides himself apparently understood the dispute with Maimonides in precisely this way, and therefore he writes:

Perhaps he, that is, Maimonides, thinks that the law derived by one of the principles, although true, has no hint in the verse, and that Scripture was written only for its plain sense, not in order to derive that law from it; and therefore it is called rabbinic…. In any case, with respect to those laws about which they did not say explicitly that they are of biblical status, the truth of that law remains in doubt: whether it is entirely rabbinic, something innovated by the court, or whether they learned it from the mouth of Moses our teacher and it is called “words of the Scribes” because it has no hint in the verses of the Torah and is not included in “The Torah that Moses commanded us,” meaning the 613 commandments. And we have not found that, in the view of the Sages, all these principles are like something explicit in the Torah, such that they derive them on their own judgment.

Thus Maimonides understands the principles as creative and expansive tools, whereas Nahmanides understands them as decoding tools, like Tosafot above.

The meaning of the concept of “extension”

In the past, see for example the pages on Noah and Hayye Sarah, we already discussed the difference between the various forms of inference. We saw that analogy and induction are tools of extension, that is, synthetic thinking, while deduction is a collection of tools of analysis and exposure. We also pointed out that the character of the hermeneutical principles is synthetic, analogical and inductive, in its essence, according to both Maimonides and Nahmanides. Therefore it is clear that even synthetic tools sometimes function as tools of exposure. Here, however, we want to describe this disagreement from a somewhat different angle.

The main problem commentators find in the view of Maimonides, who understands the principles as tools of extension, is the following. Either the principles are interpretive tools, in which case the law produced by using them is included in the text and is therefore of biblical status; or the principles are not interpretive tools, in which case this is merely an asmachta, and the laws are rabbinic and unrelated to the biblical verses altogether.

But even a cursory reading of Maimonides shows that neither of these two approaches accurately describes his position. First, already in his introduction to the Commentary on the Mishnah, and he hints at this in the second root as well, Maimonides divides laws into five different kinds:

1. Laws received by tradition that have a midrashic anchor in Scripture, a supporting derivation.
2. Laws transmitted by tradition that have no anchor in Scripture. These are the laws called “a law transmitted to Moses at Sinai.”
3. Laws that have a midrashic source, but for which we have no tradition.
4. Various rabbinic laws, decrees and enactments.
5. Various rabbinic laws, decrees and enactments.

It should be noted that within the last two categories, some distinguish between rabbinic laws for which we have an asmachta in Scripture and those for which we do not. Some medieval authorities write that there is even a difference in halakhic force between these two categories.⁴ The Ritva, on Babylonian Talmud, Rosh Hashanah 16a, writes that an asmachta is not merely an arbitrary mnemonic in the verses, but that there is a genuine connection between the law and the source that serves as its asmachta. See also Be’er HaGolah by Maharal, Be’er I. From all this it emerges that an asmachta is not merely a memory aid, but some kind of relation to the written text, only a weak one: a “defective derivation,” in our terminology above.

To complete the picture, we should add that before the first category there is yet another kind of law, namely, laws written explicitly in Scripture. In addition to this entire map, there are also laws whose source is reason alone, such as the obligation to recite a blessing before eating, which in Babylonian Talmud, Berakhot 35a is derived from the reasoning that it is forbidden to enjoy this world without a blessing.

From an overall view, it turns out that three of these categories are not connected to Scripture at all: a law transmitted to Moses at Sinai, a law founded only on reason, and a rabbinic law without an asmachta. All the remaining categories do have some relation to Scripture, but in each case the relation differs in character or in strength. This is not the place to elaborate fully, but this general picture is enough to show that relation to the written text is not a binary notion: either present or absent. There are different intensities of relation to the text. In other words, there are different degrees of inclusion within the language of Scripture.

We can illustrate this by means of a well-known paradox, one version of which already appeared in ancient Greece, where it dealt with the definition of baldness, and which in contemporary philosophy is called the heap paradox.

The heap paradox⁵

A common formulation of the paradox is as follows:

Assumption A: One pebble is not a heap.

Assumption B: If there is a collection of pebbles that is not a heap, then adding one pebble will not change its status, so it is still not a heap.

Assumption C: A collection of one million pebbles is a heap.

As can easily be seen, even though each of these three assumptions sounds very reasonable on its own, all three together are incompatible. So what is defective here? Which of them is the mistaken claim, and why?

Before answering that, let us note that almost all everyday concepts are exposed to a similar difficulty. For example, the concept of “afternoon” — this example arose in a conversation with my young son:

Assumption A: 12:00 is not afternoon.

Assumption B: If some point in time is not afternoon, adding one second will not change that.

Assumption C: 16:00 is afternoon.

These three claims too sound reasonable, each one on its own, yet they cannot all stand together. The same applies to the question of what counts as “red,” when the step of progression is a small unit of wavelength; or what counts as an “island,” as opposed to mainland or a rock in the sea; or what counts as a “table,” when we imagine a continuous metamorphosis, functionally or formally, from a chair into a table; and so on.

The root of all these perplexities is one and the same. Everyday concepts do not have sharp boundaries. For example, the concept “heap” is not binary, that is, it does not accept only two truth values, true and false, and nothing more. A collection of stones is not simply either a heap or not a heap. It is more accurate to say that such a collection is either not a heap, or somewhat of a heap, or very much a heap, or fully a heap. More generally, the truth values relevant to everyday concepts are not just the pair true and false, but a continuum of values.⁶

Application to halakha: “inclusion” in Scripture

The concept “included in the Torah,” or “found in the Torah,” is likewise not a sharp concept. It is an everyday concept, and therefore it contains an inherent vagueness. A given law may be “fully included” in the Torah, meaning laws written explicitly in verses, and these are of biblical status; or “very much included” in the Torah, meaning laws transmitted by tradition that have a midrashic anchor, and these too are of biblical status; for explanation, see the book on the roots; or “fairly included” in the Torah, meaning laws that have a midrashic source but no tradition, concerning which Maimonides and Nahmanides dispute; or “slightly included” in the Torah, meaning asmachta according to the Ritva on Rosh Hashanah 16a and those who follow him; or “not included at all” in the Torah, meaning rabbinic laws without an asmachta.⁷

Back to the midrash

We saw above that according to Tosafot, derivations are regarded as “fully included” in the Torah, like the view of Nahmanides. That is, they are tools that reveal and decode. By contrast, there are defective derivations, akin to asmachtot, and perhaps even more than that, which yield laws that may be included in the text, but may also not be. Here the decision is entrusted to the earthly court, and God Himself “bends His will” before them.

According to Maimonides, by contrast, this very status belongs to the laws that arise from valid creative derivations. Such laws are not found in the text; they are an extension of it. What then is the status of defective derivations? It is not clear. It may be that Maimonides assigns them to the Ritva’s category of asmachta, if indeed he accepts that definition, or perhaps he has no such category at all. But if he really has no category of defective derivations, the question arises how he would interpret the midrash above. Why are Moses’ arguments regarded as “his own judgment”?⁸ According to Maimonides, the answer is that every derivation expresses the interpreter’s own judgment and does not constitute the uncovering of God’s own judgment. For this reason Maimonides has no need at all for Tosafot’s intermediate category of the “defective” derivation. Ordinary valid derivations themselves are done on Moses’ own judgment, just as with all the interpreters who came after him.

This dispute seems to find its sharpest expression in the two versions found in the two formulations of the midrash above. In the passage in Shabbat, God’s approval is described in the words: “and the Holy One, blessed be He, agreed with him.” By contrast, in the passage in Yevamot the wording is: “his judgment coincided with the judgment of the Omnipresent.”

The wording in Yevamot clearly points to Tosafot’s conception, according to which Moses our teacher hit upon the mind of the Omnipresent.⁹ But the wording in Shabbat points more in the direction of Maimonides, namely, that God agreed with Moses regarding what he had decided on his own judgment: a person is led in the path he wishes to take.¹⁰

Maimonides’ approach, especially if we recall his metaphor of “branches from the roots,” evokes the saying in Babylonian Talmud, Chagigah 3b:

The text says “planted”: just as a planting is fruitful and multiplies, so too the words of Torah are fruitful and multiply.

The methods of interpretation extend the Written Torah, and the “branches that emerge from the roots” are an extension of the written text, which is the root. That is what Moses our teacher teaches us when he does things on his own judgment. God agrees with him, and this is proof that derivations, even though they emerge from the interpreter’s own judgment, determine or reveal the will of God, though certainly not necessarily the will embedded in the scriptural texts themselves.

Footnotes