Interpretive Distinctions 1
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- [0:00] Introduction to interpretive restrictions and their connection to Torah study
- [3:15] The egg on a Jewish holiday – the dispute between Beit Shammai and Beit Hillel
- [4:27] Why does the Mishnah leave out “a Jewish holiday after the Sabbath”?
- [8:00] The difficulty students of the medieval authorities (Rishonim) have in understanding an interpretive restriction
- [10:28] The Vilna Gaon on plain meaning and homiletic interpretation – correcting a misconception
- [12:06] The example of “an eye for an eye” – plain meaning versus homiletic interpretation
- [26:48] The ideal world without friction and additional conditions
- [30:09] The connection between a criminological law and physics
- [31:52] The frustration-aggression law – a Platonic model
- [33:21] The Talmud and casuistry – laws through cases
- [35:28] The rule “a slave is like a courtyard” and the interpretive restrictions
- [46:56] Interpretive restriction as a hermeneutic tool in the Mishnah and the Talmud
- [51:34] Understanding the Talmud and the difficulty with the answers
Summary
General Overview
The speaker presents the phenomenon of interpretive restrictions as a central puzzle in studying the Talmud and as a direct continuation of questions about Torah study, emphasizing that the difficulty is not merely technical but fundamental: if the tannaitic or amoraic text really intended a narrow case, why didn’t it say so explicitly, especially when the omission of “two words” generates pages of discussion and even possible halakhic errors. He rejects the simple distinction between a mere deflection and an interpretive restriction as just a logical game, and insists on a double explanation: both why the plain meaning is difficult and why the original wording does not say what the interpretive restriction claims it says. In surveying different approaches to explain the phenomenon, he criticizes common solutions (economy of language, a deliberate mechanism to keep the Oral Torah “oral,” or interpretive restriction as a polite way to disagree), and ultimately proposes a different model: interpretive restriction makes sense once you understand that the text speaks casuistically and presents a case as an instance of a general law, and the interpretive restriction does not correct the law but allows it to appear in a world where additional “interfering factors” are always at work.
Presenting the Problem Through Examples from the Talmud
The speaker cites Gittin 78: “Rava said: If he wrote her a bill of divorce and placed it in the hand of her sleeping slave, and he is guarding it, this is a valid divorce; if he is awake, it is not a valid divorce,” and asks why she acquires it if “it is a moving courtyard, and a moving courtyard does not acquire,” until the Talmud answers, “and the Jewish law is: when he is bound,” establishing the law in the case of a sleeping and tied slave. The speaker notes that “and the Jewish law is: when he is bound” is not the classic language of an interpretive restriction, but it is commonly understood that way in relation to Rava’s statement, and he adds that interpretive restrictions are not only applied to Mishnahs and baraitot but also to an “authoritative” amoraic statement. He also cites the opening of Beitzah: “An egg laid on a Jewish holiday” which the Talmud interprets as referring to “a Jewish holiday that falls after the Sabbath” “because of preparation,” and raises the puzzle of why Rabbi Judah the Prince did not simply write explicitly “a Jewish holiday after the Sabbath” if that is the point, when omitting it creates complexity, multiple views, and concern over serious halakhic mistakes. He expands that interpretive restriction is a phenomenon in almost every Talmudic passage, sometimes even without the formula “what are we dealing with here,” and also illustrates the extreme difficulty in Mishnahs that are interpreted as speaking about such rare cases that they amount to “a once-in-history case.”
The Fundamental Difficulty: Why Not Write the Intention Explicitly
The speaker formulates the basic problem this way: if the intention really is a narrow case like “a Jewish holiday after the Sabbath,” then “write the most elementary thing,” and failure to do so creates a situation in which in the end “you don’t know what the law is regarding an egg laid on a Jewish holiday.” He emphasizes that the motivation for an interpretive restriction is understandable when a difficulty forces a departure from the plain meaning, but even then the question of wording remains: “you still owe me an explanation for why the Mishnah wrote language that does not fit your interpretation.” He points to the halakhic background as critical, because such interpretive complexity can lead to practical mistakes and even Torah-level prohibitions, so it is hard to accept that such a tiny omission is justified merely by brevity.
Distinguishing Between Deflection and Interpretive Restriction
The speaker establishes a sharp logical distinction between deflection and interpretive restriction: a deflection raises a possibility that weakens a proof (“maybe the Mishnah is dealing with a particular case”), whereas an interpretive restriction establishes a positive, binding interpretation (“the Mishnah is dealing with a Jewish holiday after the Sabbath”) and yields an actual halakhic ruling. He emphasizes that the difficulty is not in using interpretive restriction as a response to a problem, but in asking how the interpretive restriction can be a true interpretation of the text when the text never said that.
Plain Meaning and Homiletic Interpretation as a Model for Understanding the Problem: the Vilna Gaon and Rav Menashe of Ilya
The speaker cites, in the name of the Vilna Gaon’s student Rav Menashe of Ilya, an approach to the relationship between plain meaning and homiletic interpretation, presenting the Vilna Gaon as arguing that homiletic interpretation is not “the deeper layer of the plain meaning” but “a parallel plane,” and within that framework he insists: even if there is justification for abandoning the plain meaning, one still has to explain why “the Holy One, blessed be He, did not write” the content directly. He illustrates this with “an eye for an eye” versus “monetary compensation,” and argues that according to the Vilna Gaon, the plain meaning remains “to take out the eye,” while the homiletic interpretation adds a route of monetary payment, so the question “why didn’t it say monetary compensation for an eye” undermines the notion that the homiletic interpretation is the real plain meaning. He adds an example from a Talmudic dispute over “the value of the damager’s eye” and connects it to Maimonides’ view that payments for bodily injury are not ordinary civil compensation but have a criminal character, even though the money is given to the injured party.
Approaches to Explaining Interpretive Restriction and Criticism of Them
The speaker presents a common possibility that an amora cannot disagree with a Mishnah, and therefore the Mishnah is interpreted in a strained way to fit the law, even if “the interpretation is not correct,” and he describes this as a “tricky” approach that does not satisfy him. He discusses the suggestion of brevity because the Oral Torah was only written down after the fact, and rejects the idea that omitting two words justifies such massive complication, especially since the Mishnah is not usually stingy with words. He cites Rabbi Yitzchak Hutner as offering another explanation: since it is forbidden to write down the Oral Torah, and “it is time to act for the Lord; they have violated Your Torah,” Rabbi Judah the Prince wrote it intentionally in an incomplete way so that the Mishnah would not become a “fixed text like Scripture,” and so that it would require the accompaniment of a rabbi and tradition; he calls this “it’s not a bug, it’s a feature,” but admits that it is hard to accept because the Talmud generally treats the Mishnah as actually meaning what it says. He mentions an extreme approach attributed to Tiferet Yisrael, according to which the wording of the Mishnah was adapted to a “melody” for purposes of memorization, and presents that as a sign of how deep the perplexity created by the phenomenon really is. He then presents the prevalent approach in Talmudic scholarship, according to which interpretive restriction is “a polite way to disagree with the Mishnah or to develop it,” and criticizes it on the grounds that it empties the rule that amoraim do not disagree with tannaim of its substance, because if one can always “hide” disagreement inside an interpretive restriction, then the rule loses its teeth, and if one cannot always “be polite,” then it makes no sense for a true law to be rejected merely because one lacked a good enough way to formulate it.
The Proposed Model: Interpretive Restriction as Part of a General Law in an Ideal World and Talmudic Casuistry
The speaker proposes beginning with the understanding that general laws operate in an ideal “Platonic” world, and illustrates this from physics: the law of gravity on earth does not manifest itself in reality because of friction, temperature, other masses, and additional fields, and so one makes an “interpretive restriction” to a world empty of disturbances in order to see the law in its purity. He adds an example from criminology, “frustration and aggression,” and argues that there too the law can be true on the level of impulse, even though in reality education and social norms “offset” its practical appearance; from there he defines a physics laboratory as a mechanism for “making an interpretive restriction” in order to remove interfering factors. He argues that the difficulty in the Talmud stems from the fact that the laws are not formulated as laws but through halakhic cases; in other words, the language reflects a “casuistic conception” in which a case is a way of expressing a principle, and the interpretive restriction is not a change in the principle but a condition that allows the principle to be realized within the specific application that was chosen.
Applying the Model to Gittin and to Reading the Talmudic Passage Itself
The speaker proposes understanding Rava’s statement about a bill of divorce in the hand of a sleeping slave as expressing a general rule such as “a slave is like a courtyard,” a rule that is true even without the slave being bound, while the condition of being bound is required only so that the acquisition can actually work, because “a moving courtyard does not acquire” and acquisition requires “a stationary courtyard.” He argues that on this reading there is no reason for Rava to mention in advance that the slave is “bound,” because he is coming to teach a broad principle, and the interpretive restriction comes only to neutralize the “interference” that prevents the principle from being realized in the chosen case. He emphasizes that the interpretive restriction does not narrow the law itself but reveals why the practical implementation of the law depends on additional conditions, just as a physical law is always true but does not appear in measurable results without removing external factors.
Evidence from the Talmud’s View of the Mishnah as Casuistic
The speaker brings as an example the opening of Bava Kamma: the Mishnah concludes, “the common denominator among them…,” and the Talmud asks, “what does ‘the common denominator’ come to include?” He interprets this as reflecting a built-in assumption that the Mishnah is meant to convey cases rather than explicit general formulations, to the point that when an explicit rule does appear, the Talmud demands to know what it is adding. He presents this as an indication that “the Mishnah gives the cases” while the amoraim formulate the rules, and that this is not an exception but a basic mode of operation that requires the reader to extract the general principle from the case.
Methodological Consequences and Promise of Continuation
The speaker concludes that when approaching an interpretive restriction, one must first identify the general law that the case expresses, and only afterward understand why the selected case requires an additional condition in order for the law to be realized in practice. He argues that this understanding turns the interpretive restriction into a hermeneutic tool that explains how the Talmud understood the Mishnah from the outset, and that without it one remains stuck with the questions of medieval authorities (Rishonim) and later authorities (Acharonim) and with a failure to understand the way the Talmudic passage works. He pauses at this point and declares that later he will bring further examples and show how the model resolves difficulties, and how it also explains why casuistic wording does not “describe a historical case” but serves as a route for transmitting principles.
Full Transcript
[Rabbi Michael Abraham] Today I want to talk about the topic of interpretive restrictions, and how it connects to our previous topic. So whoever wants can see this as something new, and whoever wants can see it as a continuation. Our previous topic was Torah study—its meaning, how you do it, what its purpose is, and so on. The topic of interpretive restrictions, as I’ll show later, also connects to that issue. But first of all, the goal really is to try to understand this strange phenomenon. Quite a few pens have been broken over it—not that many, because people seem a bit at a loss in the face of this issue. But it really is a problem worth examining. I’ll just give examples so things become sharper. So the Talmud in Gittin 78 says: Rava said, “If he wrote her a bill of divorce and placed it in the hand of her sleeping slave, and he is guarding it, this is a valid divorce.” Fine. There’s a slave who fell asleep, okay, and he belongs to a certain woman. Now her husband wants to divorce her. He takes a bill of divorce, puts it in the hands of the sleeping slave, and the woman is divorced. “If he woke up, it is not a valid divorce”—if the slave is not sleeping but awake, then it is not a valid divorce, because it is a courtyard guarded without her knowledge.
[Speaker B] It says “and he is guarding it.” She’s standing next to the slave, right? What? In the first interpretive restriction. No, no, no, it doesn’t say she’s standing next to the slave,
[Rabbi Michael Abraham] That’s another question—whether in order to acquire, the owner has to be standing next to the courtyard. We’re not getting into that here. “And he is guarding it.” Ah, “and he is guarding it,” okay, “and he is guarding it”—whether that counts as her standing next to him, it doesn’t matter, I’m not getting into that now. It has to be guarded with her knowledge. If he is awake, then it is not a valid divorce because it is a courtyard guarded without her knowledge. “Sleeping and guarding it—this is a valid divorce.” Why? It’s a moving courtyard, and a moving courtyard does not acquire. Right? If he is sleeping and guarding it, then it is a valid divorce. Why? It’s a courtyard. Granted, a slave is like a courtyard, but this is a moving courtyard, and a moving courtyard does not acquire. And if you say a sleeping slave is different—maybe sleeping isn’t considered a moving courtyard, maybe sleeping is a stationary courtyard? But didn’t Rava say: “Anything that would not acquire while moving does not acquire even while standing or sitting”? “Sleeping” doesn’t appear there, but the Talmud assumes that applies to sleeping too. So if so, how can it be that she acquires the bill of divorce? So the Talmud says: “And the Jewish law is: when he is bound.” Meaning the slave is not only sleeping but also tied up. Okay? So we’re talking about a sleeping slave who is tied up, and dragging one foot, half-slave and half-free woman—whatever—and that’s the case Rava was talking about when he said that he acquires the bill of divorce for his mistress. By the way, just as an aside, “and the Jewish law is: when he is bound” is not exactly the classic language of an interpretive restriction. You could also understand it to mean that Rava spoke about any slave. We just don’t rule like him, because as far as we’re concerned only a stationary courtyard acquires, and therefore we rule this way only with a bound slave. So that wouldn’t be an interpretive restriction in Rava’s statement. Maybe. But it’s commonly understood that it is an interpretive restriction in his words. Another remark: Rava is an amoraic statement—even from a fairly late amora. Which means that interpretive restrictions are not always done only on a Mishnah or a baraita; usually yes, but sometimes it’s done on some statement of an amora. It’s an authoritative statement, so they do interpretive restrictions on it too—they torture that as well. That’s one example. A second example: at the beginning of tractate Beitzah—“An egg laid on a Jewish holiday: Beit Shammai say it may be eaten, and Beit Hillel say it may not be eaten.” Fine? There’s a dispute over whether an egg laid on a Jewish holiday may be eaten. The Talmud discusses what the problem actually is, why it’s forbidden to eat it, raises possibilities of set-aside status, rejects them, says the hen is designated for eating, designated for laying eggs, there’s some discussion there over what kind of hen we’re talking about. In the course of that discussion, on page 2b: “Rather, Rabbah said: actually, we are dealing with a hen designated for eating, and with a Jewish holiday that falls after the Sabbath, and the reason is preparation.” And Rabbah holds that any egg laid today was completed yesterday. Meaning, we’re talking about a Jewish holiday that falls on Sunday—that is, after the Sabbath. There is a biological, physiological assumption that any egg laid on a given day completes its formation the day before, and therefore the preparation of the egg was completed on the Sabbath, and so it is forbidden to eat it on the holiday because it did not undergo preparation—Sabbath does not prepare for a holiday. Meaning, since the preparation was done on the Sabbath, the egg laid on the holiday was not prepared, and therefore it is forbidden to eat it. Now here too, we’re basically dealing with an interpretive restriction. The Mishnah says: “An egg laid on a Jewish holiday—Beit Shammai say it may be eaten, and Beit Hillel say it may not be eaten.” And suddenly we say, no, no—it’s a holiday after the Sabbath. It’s not just any holiday. So why didn’t Rabbi Judah the Prince write that? What’s the problem? Didn’t he know how to write “a holiday after the Sabbath”? He wanted to save space? Meaning, “a holiday after the Sabbath” adds two words. He would have saved us about three pages of Talmud—two pages, I think, or even more—and also mistakes. Possible halakhic mistakes. Because there are possible halakhic mistakes here too, meaning the question of which egg may or may not be eaten. So the whole thing sounds a little strange—that inside the Mishnah, where it says “a holiday,” we say, no, no, it means a holiday after the Sabbath. Or the slave—bound and sleeping. Or whatever, all sorts of other interpretive restrictions: leavened food that was burned on the eve of Passover, and that’s what it’s talking about when it says you can eat it during Passover, and various other things. In almost every passage there’s some interpretive restriction. In one form or another. It’s not always stated explicitly in the usual language of “what are we dealing with here,” but in one way or another, in almost every passage there is an interpretive restriction.
[Speaker D] Maybe bring what for me is the best example: the Mishnah talks about what happens with someone who brings a sacrifice on the Sabbath, and the Talmud says, no, here the Mishnah is talking specifically about the time of the destruction of the Temple, when he took it out before and slaughtered it afterward. An ordinary Mishnah and so on talking about something that happened once in history.
[Rabbi Michael Abraham] The spaces are pretty rich in that Mishnah—that is, the spaces contain more information than the lines do. So there’s a problem with this phenomenon of interpretive restriction. Basically, the fundamental problem is: if you really want to claim that the Mishnah was dealing with—let’s talk about the example I brought—a holiday that falls after the Sabbath, why didn’t you write it? Why didn’t Rabbi Judah the Prince write that? “An egg laid on a holiday after the Sabbath, Beit Shammai say it may be eaten and Beit Hillel say it may not be eaten.” What’s the problem? And if he didn’t write that, then he’s talking about every holiday.
[Speaker B] And what if he expects us to understand that ourselves? What? And what if he expects us to understand it ourselves? So how really? You see that in the end the Talmud did understand? You’ll understand it?
[Rabbi Michael Abraham] It’s not clear. There are four approaches there, and it’s not clear which one is correct and how to explain the Mishnah.
[Speaker B] It could be that they don’t know what it really was. But the Talmud pushed it.
[Rabbi Michael Abraham] So why not say more?
[Speaker B] No, the Talmud says maybe over there we’re talking this way or that way.
[Rabbi Michael Abraham] No, but the question is—why didn’t he write it? If he really means a holiday after the Sabbath, write the most elementary thing. And in general, just write the rule altogether: “An egg that was laid—Beit Shammai say it may be eaten, and Beit Hillel say it may not be eaten.” We’ll already know on our own that it means a holiday after the Sabbath. If you want to say something, say it. That’s ABC. You can see how much complication there is in the Talmud just to understand what’s being discussed.
[Speaker C] And the opposite question is that in the end, you don’t know what happens with an egg laid on a holiday.
[Rabbi Michael Abraham] Exactly. And the halakhic error—that’s obviously in the background. We can end up here with halakhic errors that might involve Torah-level prohibitions, sometimes serious Torah-level prohibitions, all in order to save two words in the Mishnah. That looks strange.
[Speaker E] And also what you heard here about missing wording and all that sort of thing.
[Rabbi Michael Abraham] Missing wording is a somewhat different category, though in some places it can be compared—not everywhere. What I’m talking about now is specifically interpretive restrictions. So what possibilities have been raised to explain this strange phenomenon? You know, when new students meet Talmud for the first time, if they’re listening in class of course—which usually doesn’t happen—then they’re not supposed to understand this. I mean, what is this thing? Let’s say an adult who really wants to study Talmud—not school students—meets the Talmud for the first time, and you say something like this to him, it just doesn’t go through. It doesn’t go through.
[Speaker B] It’s like understanding a legal ruling. You say, this judge said such-and-such. Then you say maybe he said it in that case where it was only like this, and here it’s not.
[Rabbi Michael Abraham] No, but here it’s not said merely to avoid learning from it. What you’re suggesting is a deflection. And this is not a deflection, it’s an interpretive restriction. It’s saying something positive.
[Speaker B] What does the interpretive restriction do?
[Rabbi Michael Abraham] No, interpretive restriction is not a deflection.
[Speaker B] Meaning, Rabbi Akiva said something. You can’t learn from it because maybe he was talking only about such a case. Now do you know that he wasn’t?
[Rabbi Michael Abraham] No. There is a very clear logical difference between a deflection and an interpretive restriction. A deflection raises a possibility. Meaning, you want to derive a law from the case in the Mishnah, and they tell you: no, you don’t know, maybe the Mishnah is dealing with a specific case and you can’t derive from it—maybe yes, maybe no. Here they don’t say maybe. The Mishnah is dealing with a holiday after the Sabbath, and now as a matter of Jewish law, such an egg is permitted or forbidden to eat.
[Speaker B] It was difficult for you—that it couldn’t be talking about another case.
[Rabbi Michael Abraham] It was difficult, yes, I understand that. It was difficult. But now explain to me why Rabbi Judah the Prince didn’t write that. I understand why you say the interpretive restriction—that’s not the question. I’m only asking how you think the interpretive restriction really explains the Mishnah. Rabbi Judah the Prince didn’t write that. And we’re left with it requiring further study. That’s an important point—maybe I should clarify it more. Look, this is the Vilna Gaon—actually his student Rav Menashe of Ilya. Maybe I brought this once. He reports in the name of his teacher about the relation between plain meaning and homiletic interpretation—a point people don’t notice. There’s an argument whether the homiletic reading is the depth of the plain meaning. As if, once you take a broader view, compare it to various places, then you see that here it really has to be interpreted differently, because otherwise contradictions would arise and so on. In a certain sense, homiletic interpretation is like a kind of interpretive restriction. The Vilna Gaon, by the way, writes that interpretive restriction and missing wording are homiletic interpretation on the Mishnah. What we do as homiletic interpretation on the Torah, that’s what they do to the Mishnah. And some say—not at all. Homiletic interpretation—and this is also the Vilna Gaon, by the way—is a parallel plane. There is the plain meaning and there is the homiletic interpretation, and the homiletic interpretation does not claim to present a better plain meaning. It is a parallel plane, and Scripture has to be studied on both planes in parallel. Now the Vilna Gaon makes the following claim against the first approach. He says that first approach is a great mistake—to say that the homiletic interpretation is the depth of the plain meaning. The homiletic interpretation is a parallel plane; the plain meaning must be read literally. And what is his argument? He says: when you interpret, for example, “an eye for an eye” as money, fine? So let’s say now that the simple meaning of “an eye for an eye” is to take out the eye. But because of this or that consideration—contradictions, reasoning, whatever—we make a homiletic interpretation and say it means money. So even if you prove to me that reading it literally is difficult, that there are contradictions elsewhere, that it doesn’t fit common sense, and so on, you still owe me an explanation of why the Holy One, blessed be He, didn’t write “money for an eye.” Meaning, I understand the fact that there is an explanation for why you say money instead of an eye. That’s a good answer to why the plain meaning is difficult and why you are forced to resort to a homiletic reading. But you still owe me an explanation. Tell me—did the Author of the Torah not know that? If He meant money, then write it. That too has to be explained. It’s not enough to explain what justifies abandoning the plain meaning and adopting a homiletic reading. You also have to explain to me—assuming you’re right, you convinced me, the Holy One, blessed be He, meant money, I understand. Now I’m just left with one question: why didn’t He write it? Why didn’t He write “money for an eye”? Much simpler. Meaning, in any case this needs explanation, and therefore the Vilna Gaon says that necessarily this approach is wrong. The homiletic interpretation is not the depth of the plain meaning. The plain meaning is “an eye for an eye”—to take out the eye—that is the plain meaning. And the homiletic interpretation is to take money instead of the eye, and both exist. There is homiletic interpretation and there is plain meaning.
[Speaker F] So what do you do with the plain meaning?
[Rabbi Michael Abraham] What do you do? That’s drifting into another lecture. We’ll talk about—
[Speaker F] Because it comes out as if he’s explaining it with some technical explanation. No, no, no, not a technical explanation.
[Rabbi Michael Abraham] I’ll just give you one example to solve that issue, because it’s a topic for another lecture. What one does, for example—the Talmud brings an opinion, though Jewish law was not ruled that way—but it brings the opinion that when payment is made, one pays the value of the damager’s eye. Right? In a case of a person who injured someone, one pays the value of the eye. That makes absolutely no sense. You took out his eye, and you pay him the value of your eye? Pay him what his eye is worth—why would you pay what your eye is worth? But if you understand, like the Vilna Gaon, that what is really at stake here is that your eye should be taken out—the plain meaning remains in place, the plain meaning is not the homiletic reading, the plain meaning is plain meaning, your eye should be taken out. Only what? Only that the Torah says, through homiletic interpretation, instead of an eye, take money. Then it is clear that the money is the value of your eye, not the value of his eye. Fine? And one can also see from this that payments for bodily injury are, as a result, according to Maimonides—and one could expand on this—that bodily injury payments are not a fine, but something quasi-fine-like, which is what everyone misunderstands in Maimonides. In my opinion that is the root of the matter. But let’s leave that example.
[Speaker G] Don’t we also see this phenomenon in disputes between amoraim? Meaning, there are disputes between amoraim and then we understand that really they agree with each other, they’re just talking about a specific case. Right? It’s the same phenomenon. You see it all through the Talmud, and afterward among the medieval authorities (Rishonim) too—they also don’t understand what this one meant, so—
[Rabbi Michael Abraham] Then they bring an interpretive restriction for the amora. You see that a lot. Everywhere there’s an authoritative text, they apply interpretive restriction to it. That’s generally the method.
[Speaker H] I think it’s a way of allowing the evolution of Jewish law. And you see it today many times among halakhic decisors; Rav Moshe does this—okay, we’ll establish it there—it’s a method, one of the tools we have.
[Rabbi Michael Abraham] A lot of people want to claim that. I don’t agree. I’ll also tell you why I don’t agree—but in a moment.
[Speaker B] Just one second—I think “an eye for an eye” is on the criminal plane altogether. Okay? Not in the civil damages plane at all. Right, you caused bodily harm to someone—there’s criminal law. Right. And what is the money? The money is civil.
[Rabbi Michael Abraham] So why do they pay the value of the damager’s eye?
[Speaker B] I don’t know at all. I don’t understand that idea.
[Speaker E] Exactly—the idea is that the money is also criminal.
[Rabbi Michael Abraham] The money is criminal. “An eye for an eye” meaning money is a criminal law: instead of taking out the eye, don’t take out the eye—take money instead.
[Speaker B] It’s criminal, but that doesn’t mean you pay the guy for his damage as assessed according to the damage done to the injured person. No, no, it isn’t assessed—that would be compensation for the harm.
[Rabbi Michael Abraham] No, it isn’t assessed. It’s criminal, not civil. I don’t need to assess his damage. It’s a punishment on me.
[Speaker B] Fine, but it’s clear to you that he also gets money for his eye?
[Rabbi Michael Abraham] So to whom should I give it—throw the money into the Dead Sea? So the money is given to the injured party, but it isn’t compensation.
[Speaker B] According to Maimonides it isn’t compensation.
[Rabbi Michael Abraham] No, that’s another whole topic—why there isn’t additional compensation. According to Maimonides it isn’t compensation. In Maimonides, in damages—no. There are the five categories of payment for bodily injury, but in the damage payment itself it isn’t ordinary monetary compensation. So let’s get back to our matter. Basically, what am I trying to claim? This example of plain meaning and homiletic interpretation in relation to Scripture follows the same logic as plain meaning and homiletic interpretation in relation to the Mishnah, or a baraita, or an amoraic statement. You can explain to me—I understand why a difficulty forces me to deviate from the plain meaning and interpret something in a homiletic way, as a kind of interpretive restriction. But you still owe me an explanation for why the Mishnah wrote language that does not fit your interpretation. If that’s what it meant, why didn’t it write it? If it means a holiday after the Sabbath, then let it write “a holiday after the Sabbath—may the egg be eaten or not.” Why write “holiday”? So it isn’t enough to explain the difficulties that force me to interpret in a homiletic way. You also have to explain to me why the Mishnah didn’t write what it meant. Okay?
[Speaker D] There is one option—that really the Mishnah is not what we rule by; we have a tradition that the Jewish law is a bit different. But an amora cannot contradict or disagree with a Mishnah, and so we interpret the Mishnah in some way in order—
[Rabbi Michael Abraham] For it to fit the law, even though the interpretation isn’t right. We’re being tricky about it.
[Speaker D] No, that’s what people commonly think about it. That’s a standard claim.
[Rabbi Michael Abraham] I’m saying I don’t agree with that. I’ll explain in a moment why. Is the Jewish law in accordance with an anonymous Mishnah, or just generally with the Mishnah?
[Speaker B] Maybe—
[Speaker I] There may have been a difficulty in writing down the Oral Torah, because it’s supposed to be Oral Torah. So maybe when they came to write it down after the fact, they wanted to be very concise.
[Rabbi Michael Abraham] Yes, but that conciseness should have shown itself in places where it really matters. When you omit two words and create a huge problem of understanding, that doesn’t make sense. If you omitted something long—saved, I don’t know, several sentences—fine. But you saved two words and created three pages of Talmud. What’s the idea? Add the two words. The Mishnah uses a style that is not always terribly concise and short. It writes what it thinks. It isn’t miserly with words. So if there had been a significant saving here, I’d be willing to accept such a claim.
[Speaker J] But maybe in order to receive reward—maybe it was intentionally done this way so that it wouldn’t really become written Torah? Exactly. I thought you were going in that direction.
[Rabbi Michael Abraham] That is actually what Rabbi Yitzchak Hutner says. Rabbi Yitzchak Hutner wants to argue that since it is forbidden to write down the Oral Torah—the Talmud in Gittin 60, “It is time to act for the Lord; they have violated Your Torah”—Rabbi Judah the Prince saw that people were beginning to forget and decided to write down the Oral Torah. And because of that, when he wrote it down, he wanted it not to become a fixed text like Scripture, but for you still to need Oral Torah to accompany it. You would need a rabbi when you come to study Mishnah, and it would not be open to everyone, the way people complain today that the sources are open to everyone and everyone can decide what the Jewish law will be, and people arrive at all sorts of strange decisions. So this is an attempt to prevent accessibility of the text, or of the law, to everyone. You need the guidance of a rabbi or a tradition of Oral Torah in order even to understand the Mishnah. So they wrote it down basically only so we wouldn’t forget, but intentionally inserted errors. Not that they wanted to shorten it, as you said, but intentionally—not errors—but intentional omissions, so that you would have to study it together with a rabbi and with tradition. And what about “an eye for an eye”? What? No, “an eye for an eye” is homiletic interpretation versus plain meaning; I’m not dealing with that now. I’m dealing with interpretive restrictions in the Mishnah. I’m saying it’s true that it’s similar—the logic there is similar—so we’ll talk about it.
[Speaker I] It’s like code? What? It’s code.
[Rabbi Michael Abraham] Yes, and there are intentional omissions so that you’ll need a rabbi; otherwise you’ll get stuck with difficulties and all sorts of things of that kind. That’s what Rabbi Yitzchak Hutner says—in order to preserve this thing as Oral Torah in an essential sense, even though it was written down. That’s the claim. It’s an interesting claim, although hard to accept, because the Talmud generally does treat the Mishnah as someone who really says what he means. The Talmud doesn’t say, well, Rabbi Judah the Prince did this so we wouldn’t understand—that’s obvious. The Talmud doesn’t say such a thing. There are difficulties, we have no choice, we’re forced into a strained reading.
[Speaker K] An interpretive restriction for an amora? Maybe regarding the amoraim?
[Rabbi Michael Abraham] Yes, exactly—an interpretive restriction for amoraim.
[Speaker E] And many times the Mishnah looks for that same baraita and finds someone—a baraita—that said exactly what…
[Rabbi Michael Abraham] Yes, but the baraita was edited according to different rules, not like the Mishnah. It could be that in the baraita it really was—
[Speaker E] But according to the tradition, the Sages—Rabbi Judah the Prince decided to put things inside and put other things in the baraita…
[Rabbi Michael Abraham] No, we’re inserting it into the Mishnah. We don’t say that if we say the Jewish law doesn’t follow the Mishnah and we have a baraita, that’s fine. Or amoraim who received traditions from their teachers. Yes.
[Speaker E] And that’s the oral tradition in the Mishnah. So it was before them too. Okay.
[Rabbi Michael Abraham] So I’m saying, then, there is such a direction. It’s hard for me to accept, but fine—it’s at least a direction worth thinking about.
[Speaker B] So the wording of the Mishnah is basically like headings for reminders—there’s something here…
[Rabbi Michael Abraham] Yes, but not just headings for reminders in order to save space, as was said earlier, because that doesn’t seem significant to me. Rather, with deliberate precision—not to write explicitly so that it somehow remains oral.
[Speaker C] It’s not a bug, it’s a feature. Huh? It’s not a bug, it’s a feature.
[Rabbi Michael Abraham] Okay. Fine. Now from here on the wildness begins, and I’m not even going to go through all of it. Tiferet Yisrael, I think, writes on the Mishnah that the Mishnah was written so it would fit some melody for them in order to remember it, and therefore they removed words so it would match the melody, or things like that. Just understand where this reaches—understand the level of difficulty that leads to this kind of thing, on which I won’t say anything.
[Speaker E] Okay, maybe that’s a bit extreme, but it’s very characteristic of the more classical Torah world, because no one can say that a halakhic decisor, or a responsum, or even a decisor in our own generation, said exactly what he said, because there’s always something else. This happens today too. Meaning, this method exempts you from being bound by the written word. And that happens today as well.
[Rabbi Michael Abraham] Okay. In any case, the most accepted direction—certainly in the world of Talmudic scholarship—is that interpretive restriction is basically a polite way of disagreeing with the Mishnah, or developing it, if you want more sanitized language. Okay? Meaning, we don’t really mean to interpret the Mishnah. We don’t really mean to interpret the Mishnah. We mean to say something against the Mishnah. But what can you do? You can’t come out against a Mishnah; there’s a rule that one may not disagree with tannaim. So we force it into the Mishnah one way or another. Some will go further and say: we are committed to the text of the Mishnah, not to its author. The author didn’t mean this. But the text of the Mishnah can accommodate it through an interpretive restriction. And that is enough. This claim is very problematic in my eyes, although it is very widespread. That is the prevalent approach today in academia. It’s a very problematic approach. I once had an argument about this with Henshke in the journal of Yeshivat Yeroham. Because in the end, the Talmud operates according to a system of rules. And those rules say that an amora cannot disagree with a tanna. If I find a tannaitic statement that stands in opposition to an amora’s words, then that’s a knockout victory. His career is over. Right? Now, if the polite way of disagreeing is really open to him, then there are two things I don’t understand. First, I can always come up with some polite interpretive restriction that will straighten things out. Fine, so he was speaking only about the international date line; he didn’t mean an ordinary place. Maybe—who knows—I can always make some such interpretive restriction and get out of it. They don’t do that completely freely, meaning there are limits; otherwise the whole rule that amoraim cannot disagree with tannaim is emptied of content. Second, let’s say I didn’t find an interpretive restriction. Are you now going to tell me that just because I can’t be polite, the Jewish law doesn’t follow me? After all, you’re saying an amora can disagree with a tanna, right? He just has to do it politely. I didn’t find a polite way to do that, but I still think the Mishnah is wrong. There’s an opposing Mishnah. So because of that, are we now going to violate the Sabbath? If I say something is forbidden—or permitted, whatever—I’m coming to disagree with the Mishnah. So what, just because I didn’t manage to arrange some polite trick to hide the fact that I disagree with the Mishnah, therefore my words get rejected from Jewish law? That seems strange to me.
[Speaker H] No, no, but that’s not how it is. There are other reasons, other grounds that the Talmud brings for why they really can’t be explained that way, because there are other problems, other rules within the Torah. So you have a problem in front of you.
[Rabbi Michael Abraham] No, that’s what I said earlier—that’s how I started. I said I understand the difficulties that don’t allow a literal reading and force me to bring an interpretive restriction. But you still have to give me an explanation. So why didn’t Beit Shammai say it properly? I understand that this has to be the meaning of their words—that it means a holiday after the Sabbath. But why didn’t Beit Shammai say it: “On a holiday after the Sabbath, the egg may be eaten”?
[Speaker B] So how did you explain it now?
[Rabbi Michael Abraham] Wait, I haven’t explained anything yet. I’m only raising all the explanations and saying what the difficulties are with them.
[Speaker H] But that’s exactly the point. They have no way to do it, but there’s something there—they really must not disagree, not just something that I really… Did Beit Shammai mean that or not?
[Rabbi Michael Abraham] What do you mean, did Beit Shammai mean it or not? Were Beit Shammai speaking about a holiday after the Sabbath or not? I don’t know. What do you mean, I don’t know? I’m asking what you think. Did they mean it or not? If they meant it—excellent; the only question is why they didn’t write it. If they didn’t mean it, then you’re disagreeing with them. Right.
[Speaker D] Look, everybody does this in ordinary law. In the United States there’s a constitution; in court cases before the Supreme Court they don’t say what they really intended. You have the text and they interpret it according to what happens today. Whether that’s what they really intended, nobody cares.
[Rabbi Michael Abraham] That’s a different question—
[Speaker E] It’s a question—
[Rabbi Michael Abraham] Related, but different.
[Speaker D] The question is whether interpretation—but take an example: when the Briskers interpret Maimonides with all kinds of answers, is that really what Maimonides meant?
[Rabbi Michael Abraham] I think that usually there’s a decent chance he did mean it, contrary to the common criticisms, the famous mockery. I actually think that in many cases it is close to what Maimonides meant. He didn’t formulate it like Rabbi Chaim of Brisk in that analytic style, because that was not his way of thinking, but yes—it could still be what he meant, I think, in many cases.
[Speaker B] So only Moses didn’t understand there what was going on in Rabbi Akiva’s study hall.
[Rabbi Michael Abraham] Right, he didn’t understand the language, but afterward he calmed down because he heard that this was basically what he had said, and that was that. In any case, I’m saying all these solutions, in my view, are forced solutions. So let’s summarize it this way: if I offer you a good solution, then obviously there’s no need to resort to them, right? Why defend them if I have a better solution? Okay, so let’s see. Let’s start with an example from somewhere else. I’ll start from the end. In a mechanics book, we read: every body with mass is attracted to the earth by a force proportional to the product of the masses divided by the square of the distance. Okay? The law of gravitation, or a certain application of the law of gravitation to the earth. Now the question is—then the Mishnah comes. Then the amora comes and says: but what about friction? There is friction—what do you mean? That’s not true; there’s a force that slows it down, the acceleration is less. Friction will slow the acceleration somewhat, right? And what about temperature? And what about other bodies that also pull this body in all kinds of directions, not only the earth pulling it, right? And what about electromagnetic forces? Besides gravitational forces. There are lots of things interfering. So what do we do? An ukimta. What are we dealing with here? A world empty of masses, at absolute zero temperature, with no friction, and in that world there is only the earth and the body being attracted. That’s it—an ideal world. By the way, nobody interferes, wonderful; living alone really is a thoroughly utopian world. But that’s it: that is what the law of gravitation is dealing with. In that abstract Platonic world, a world in which there is only the earth and one body, no friction, no temperature, no other bodies, no fields of any other kind besides a gravitational field. That’s all. Has anyone ever seen such a world? I don’t think so. Even if you had seen it, you wouldn’t have seen it, because in order to see you need an electromagnetic field. And if there’s no electromagnetic field in it, you can’t see. So there is no such world. So what? But the law—the law of gravitation—in every mechanics book it’s written there. I didn’t discover some hidden scroll here. In every mechanics book it’s written. And there’s a wildly far-fetched ukimta. It’s even more—it’s even better than a slave who is bound. There they told you he was asleep and you only add that he’s also bound. Here they tell you there’s an earth and there’s a mass, and you say no, no—we’re talking about no air, no temperature, no other body around, no friction, nothing. Is that easier? What kind of ukimta is that? Why is it that when people read a mechanics book, nobody blinks?
[Speaker L] No, because it’s a law, you understand that.
[Rabbi Michael Abraham] And this is also a law.
[Speaker L] The bound slave—what do you want from that?
[Rabbi Michael Abraham] Ah, so here there’s an important point.
[Speaker L] Yes, you have to distinguish between two things. First, that same force of attraction of that body still exists. Right. It doesn’t need the ukimta. The ukimta comes to say that in the case of the ukimta, that force is the only force acting on the body. No, the opposite.
[Rabbi Michael Abraham] What I’m saying is this: let’s formulate the law this way—every body under the influence of the earth will have an acceleration of GM divided by r squared. The mass of the body—I’m not talking about forces, I’m talking about accelerations. Now acceleration is meters per second squared. Measure it.
[Speaker L] Still, it seems to me that physics books begin with a big opening: under the assumption that there is no friction, no temperature, no additional fields.
[Rabbi Michael Abraham] No, so open them again. Not in my books. Friction appears later. Afterward they say, wait, wait, there’s friction and this and that—the picture is more complicated. First they teach the simple picture, and nobody blinks. Nobody blinks. We’re talking here about wild ukimtot, much wilder than what appears in the Talmud. But it’s not contradictory. That is, the basic law is that same law, and afterward they add things. No—it isn’t correct. In every practical situation, this law is not correct. Measure the acceleration of a body under the influence of gravity and you’ll see that it isn’t the acceleration you learned about. Not true. You’re saying that basically—when will it be true? In that other utopian world that nobody has ever seen. So what? That’s an ukimta in every sense. Let’s take another example. I once told you—I don’t remember—my sister studied criminology, among other things, if I’m not mistaken. You know her? So she studied criminology, and she told me that some of the lecturers there wanted to give an example—they said, let’s take a law, they wanted to give an example of a general law in criminology. They think for a moment and then say: frustration and aggression. But it was always frustration and aggression—there’s no other law. Meaning, that’s the only law they have. Meaning that frustration leads to aggression. So let’s take the law that frustration leads to aggression. And they always think first, to choose among the wealth of laws, and in the end they happen to find one that just happens always to be the same one. But anyway… But let’s take the connection between frustration and aggression. Clearly there are frustrated people in whom that doesn’t come out through aggression, right? People—sublimation, education, whatever, each person and his own mechanisms; a human being is a complicated creature. There are people in whom frustration leads to a lot of aggression; there are people in whom it leads to less aggression. Meaning, even this one law that we managed to find there—even it doesn’t work in almost any situation.
[Speaker C] Here surely there’s something in the word “law,” I think that’s…
[Rabbi Michael Abraham] No, so I’ll explain—I’ll make the case for them this time. I’ll argue that it’s a law exactly like in physics. Or at least it could be. Maybe it’s not true, but in physics too it could turn out not to be true. On the principled level it can be a law exactly like in physics. What then? Exactly as I said about the law of gravitation. When a person has undergone a certain education, or has this kind of character or that kind of character, and is under these influences or those influences, that can offset the phenomenon of frustration, or the effect of frustration. What are we dealing with here? With a person who has had no education from the day he was born, has no sublimation mechanisms, has no social norms stopping him—and in such a case, if he is frustrated, he will respond with aggression. There is no such person, of course, but we are talking about that Platonic human being. And now maybe that law isn’t true at all, it doesn’t matter, but I’m saying I have no problem saying it is true even though it never works. Exactly like the law in physics: it is true even though it never works. Why? Because from the outset the law is talking about some Platonic world, which we define through ukimtot, and when we try to test it in this world we always have to remove various disturbances. That, by the way, is the function of a laboratory in this world—that is its function: to make an ukimta. A laboratory makes an ukimta. When you want to measure a law in physics, you go to a laboratory; you don’t test it on the street. Why do you need laboratories? What’s wrong with looking on the street and seeing what happens? No—in the laboratory I empty out all the air, lower the temperature, remove all the bodies, put in a Faraday cage so no electromagnetic influence enters, I clean away all that stuff, I try to create in our physical world that same Platonic world the law is talking about, as close to it as possible. Okay? And to the extent that I manage to get closer to it, I’ll see the law better—assuming it’s true. If it isn’t true, then I won’t see it.
[Speaker H] But in another context, there there is a principle—in mechanics there is a principle that really is the truth. So that’s… But here it’s not the same thing, exactly what… What’s not written here is without truth…
[Rabbi Michael Abraham] So that’s what Hillel said earlier—I’m getting to that, that’s a correct comment. It causes confusion. But that’s exactly what I want to explain later. But first let’s understand this with respect to laws. If the Talmud had written the law—let’s go straight into the Talmud—if the Talmud had written the law that a slave is like a courtyard, not the ruling, “a slave into whose hand they placed a bill of divorce acquires it for his mistress…” but rather, “a slave is like a courtyard.” It appears. A general rule… such a general law in that formulation. There is such a rule… not exactly. Not exactly. That’s how it’s presented—they present it in casuistic form in the Talmud, but I’ll talk about that in a moment. So what is it there? I think everyone would understand that of course a slave is like a courtyard, and of course in order to acquire, the courtyard too has to be guarded; an ordinary courtyard, being land, you don’t bind it—it stands there bound already. A courtyard… a slave has to be bound in order to resemble land. Nobody would blink, right? Meaning, there too, if we formulated it as a general law, then everybody would understand the whole matter of ukimtot. So what confuses us here? One second—what confuses us here? That when Rava states his ruling, he doesn’t state it as a general law, “a slave is like a courtyard,” but instead he uses a halakhic example. He says there: if he took a bill of divorce and placed it in the hand of her sleeping slave, she is divorced. Fine? That means that in fact he didn’t state the law itself, but rather gave us an expression of it through one of its halakhic consequences. In other words, he is using what our cousins the jurists call a casuistic approach. That is, he doesn’t state the general law; rather, he expresses it through an example, an application of it. And he assumes that we will probably understand the general law from that. But if I really understand that Rava’s intention is… he is expressing himself casuistically, but in order to state the law—not to state a particular case, but to state the law—then there’s no problem. I just have to understand that the mode of expression in the Talmud or the Mishnah is casuistic. Once I understand that, then when I read a statement of Rava, where Rava tells me: if she placed a bill of divorce there in the hand of her sleeping slave, she is divorced—I understand that he does not mean to tell me a law about a sleeping slave and a bill of divorce, but rather he means to state a general principle. In free translation: a slave is like a courtyard. Okay? Once I understand that, the whole problem disappears. What confuses us and makes us struggle with the Talmud, whereas in mechanics books we don’t struggle and in criminology we don’t struggle, is that in scientific books the principles are stated directly; they are brought as a general law, and therefore there it is obvious to us that ukimtot have to be made. A general law is never true in our world, unfortunately, but that’s how it is. You always have to make ukimtot in order really to see it in its purity. What happens in the Talmud—the claim I want to make now is this claim, really two claims. First claim: with respect to a general law, an ukimta is a completely logical and reasonable thing. If they didn’t make ukimtot, I would have difficulty with the Talmud. If there were no ukimtot. What I don’t find difficult is that there are ukimtot; rather, it’s impossible that there not be ukimtot. That is the first assumption—if general laws had been written. Second assumption—this is an assumption about the nature of the Talmud or about the Talmud’s way of expression. And that assumption says that the Talmud expresses itself casuistically. Meaning, when it wants to state a law, it doesn’t state the law; rather, it states a case that expresses that law. That is the Talmud’s way. I can explain later why. Okay?
[Speaker B] And why doesn’t it say it explicitly?
[Rabbi Michael Abraham] So I’ll explain later. I said I’d answer later. No, it’s not the same thing. Not stating principles but dealing with cases.
[Speaker B] That’s how a supreme court operates. Right, like a court, or contracts, or guilt, not…
[Rabbi Michael Abraham] The whole British legal system is like that too. Today less so, but still—that’s the conception, a casuistic conception. They deal with cases. Now of course there are principles behind it and there’s a lot of logic in it—I’ll get to that logic. But first I want to lay out the model. Meaning, I’m assuming two things—or one assumption and one claim, okay? Claim: when there is a general law, clearly there will be ukimtot in it; there is no problem with that, it is not problematic at all with respect to general laws. That’s a claim. Assumption: when the Talmud states a case, that is really a casuistic expression of a rule, of a general law. It’s not a case. It does not mean to tell me Jewish law about a particular case; it means to tell me, in a casuistic way, a general law. Okay? If I adopt this claim and this assumption, it seems to me that the problem of ukimta is solved completely. If you bring here—yes—the general law. The general law—to that I’ll bring examples.
[Speaker H] No, but even so, it still has to contain within their words the principle above the law. Say, like an egg laid on a Jewish holiday, what we discussed—a Jewish holiday after the Sabbath—that really changes the general law.
[Rabbi Michael Abraham] No, so wait—no, I’ll explain. It’s that same question again, the same question from both of you. I’ll get to it. Clearly what I’m saying now is true as a scheme. But in order to claim that this really is the solution to the ukimta problem, in principle you’d have to go case by case. Since there are thousands of them, of course we won’t do that. I’ll give two or three examples to show you what the significance of the matter is, what has to be in place for this to work. It’s not a magic solution. There will be places where apparently it doesn’t work, and we’ll have to work in order to understand why nevertheless this is the scheme here and what the point is. I always have to explain why Rabbi Yehudah HaNasi didn’t write—after all, that was the question I opened with. Now I’m not asking why Rabbi Yehudah HaNasi didn’t write the general law—that’s what you asked earlier, and I’ll get to it first. That is the question: what is the advantage of casuism? I’ll talk about that. But I’m asking a different question. I’m asking: okay, suppose Rabbi Yehudah HaNasi chose a casuistic form, but let him describe the case properly. Let him say, “a Jewish holiday after the Sabbath”—that is still a casuistic expression, an expression through a case—but let him at least state the case properly. Why does he state the case in a general way? That is the question I have to explain. Now I will argue… or first I’ll complete the scheme.
[Speaker B] I see “presumption of ownership of houses” and all the stories there as courtroom stories. Okay.
[Rabbi Michael Abraham] In courts, that is—
[Speaker B] there was a case, so why would he speak about another case?
[Rabbi Michael Abraham] No, no. In the Mishnah that certainly isn’t so. Mishnahs are not cases. Why not? Even in the Talmud I’m not sure you’re right, but in the Mishnah it is certainly not true. The Mishnah establishes a law. The law is the result of what happened. Fine, but it is not a case that came before a court. It is the establishment of a general law. “An egg laid on a Jewish holiday may be eaten or may not be eaten.”
[Speaker B] It could be that it arose from someone asking himself and answering.
[Rabbi Michael Abraham] Fine, but that’s like Terumat HaDeshen. There are responsa like that—Terumat HaDeshen is responsa that were written without a question, meaning the author wrote the question only so that he could give the answer. But in the Mishnah it doesn’t seem that way. In the Mishnah it seems as though—
[Speaker B] Rava speaks about a slave that a woman gave as a bill of divorce—that’s not a case.
[Rabbi Michael Abraham] No. When the Talmud brings a case, it describes it: there was an incident here, someone came and gave such-and-such a bill of divorce, and they came before Rava, and then Rava said yes—divorced, not divorced. When the Talmud has a case, it talks about a case. So why here does he not mention that there was such a case? And in the Mishnah it’s even worse—the Mishnah doesn’t even go into that level of detail at all. It simply establishes some principle as such. Nobody… Now it could be that it came to them as a case and that was the motivation for the discussion—that’s not important. But right now, when they edit the Mishnah, they are not documenting the case. This is not a chronicle of the case.
[Speaker B] Maybe there were cases, they discussed them, gave the ruling in the end, and then he wrote the ruling.
[Rabbi Michael Abraham] Exactly. So in the end he writes the law. Was the case a Jewish holiday after the Sabbath? Fine, very good—a Jewish holiday after the Sabbath. But then it comes out that what you really want to claim is that Rabbi Yehudah HaNasi uses specific cases in order to develop the law. But in many cases he speaks without using a case at all. Not in many cases. Here and there there are cases. And listen, the Talmud at the beginning of Bava Kamma says: “this is the principle.” Right? There are four primary categories of damages—ox, pit, maveh, and fire. And in the end it concludes: “the common denominator among them is that it is their way to cause damage, and their care is upon you, and when they cause damage the damager is obligated to pay compensation from the best of his land.” Then the Talmud asks: what does the common denominator come to include? Unbelievable. You gave me a list of cases, and in the end you give me the rule—finally you behave like a human being. The Talmud says, wait a second, who needs the rule? We have the cases. I would ask: wait, why did you bring the cases? We have the rule. Meaning, the Talmud takes it as obvious that the Mishnah does not bring rules. If the Mishnah brings rules, that is a difficulty. When the Talmud brings a case—“four”—Tosafot there, I think if I remember correctly, Meir—“four” comes to include what? Why do we need to be told that there are four? Meaning, whenever the Talmud departs from the plain description of the case and its law, immediately the Talmud or the medieval authorities (Rishonim) ask: wait, why—who needs that? It is that extreme, the casuistic conception, which says that the moment you say “this is the principle,” the Talmud immediately asks “this is the principle”—to include what? Whereas I would have expected all Mishnahs to consist only of “this is the principle” all the time. What do we need the cases for? The Talmud says: what are you talking about? Mishnahs are cases. “This is the principle”—what does it come to include? The rules are what the amoraim formulate; the Mishnah gives the cases. And this is an excellent example of the fact that there is an assumption in the Talmud, a casuistic assumption, that when the Mishnah brings a case, it is bringing a case that reflects rules, but it deliberately is not supposed to formulate the rule directly. I’ll explain why, but first I’m trying to show that this is indeed so. Okay?
[Speaker M] Excuse me, innocently I read it the opposite way. Okay. That they ask about the rule because it comes after the count. If there weren’t a count, they wouldn’t ask about the rule.
[Rabbi Michael Abraham] Fine, so let them ask about the details. The details—what do they come to include?
[Speaker M] There’s the general rule of four. The Mishnah says first of all—it’s not a case, it’s a category. Exactly, so the idea…
[Rabbi Michael Abraham] That category—you asked earlier why they didn’t write only the category; why did they write the case? So that’s what the Talmud should have asked. There are categories and cases in the Mishnah. Right, the cases appear first—so what? The Talmud should have asked that they should have said only the latter clause and the first clause is superfluous. But that doesn’t even occur to the Talmud. The Talmud says, what are you talking about? The latter clause is superfluous—the latter clause that states the rule, the most basic thing, that is what is superfluous—what does it come to include? And then they bring—did you see the examples they bring there on page 6? The Talmud brings there his stone, his knife, and his burden that fell from the top of the roof and caused damage through a normal wind, and I don’t know whether the liability came after they came to rest or before they came to rest, and it depends on Rav and Shmuel. That’s what the common denominator comes to add. Do you understand? No—it doesn’t come to add merely “just so you should know the laws of damages, that anything which is your property and whose guarding is upon you, when it causes damage the damager is obligated to pay compensation from the best of the land.” That’s what one should ask—why did they bring it? It’s the father of the laws of monetary damages. Now I’m trying to show you, even before the explanation, that first of all this is the fact. The Talmud and the Mishnah conduct themselves casuistically. That is the fact. Why, what’s the logic in it? We’ll discuss that. But you can’t ignore it.
[Speaker C] You said you’d bring more examples. I didn’t understand the first example. I think that what the ukimta proves—you said the rule is that a slave is like a courtyard. I think that what the ukimta proves is that a slave is not like a courtyard, unless he is asleep, unless he is bound. I haven’t yet brought…
[Rabbi Michael Abraham] I haven’t yet brought—
[Speaker C] the first example, I’ll still bring it. This example, I think, proves the opposite; it doesn’t prove the rule.
[Rabbi Michael Abraham] I’ll get to this example too. Look, I just want to finish the scheme, because it’s important to me that we have the context before we enter the examples. According to what I’m proposing here, when I see a case in the Mishnah or in the Talmud, first of all I have to think: what is this case coming to tell me? What is the rule it is coming to state? What is the rule it is coming to state? Okay? After I understand what rule this thing is coming to state, then I come back and ask: why was this rule expressed in such a case? After all, there is this difficulty or that difficulty here. This law doesn’t really express the rule, because here there are other rules that interfere with this rule’s appearing. Exactly like in science, yes? The same thing with friction and gravitation. There was another law here that intervened and prevented it. So the claim is that in the context of an amoraic or tannaitic statement where we make an ukimta—now the claim—if it is written in the Talmud that a sleeping slave who received a bill of divorce causes his mistress to be divorced, that means that this rule is true of any slave and not only of a bound slave, because it is not mentioned in the rule that he is bound. So the rule that Rava is coming to teach us is not a rule about bound slaves; it is a rule about every slave. However, the practical expression of it—acquisition through the hand of the slave—appears only when the slave is bound. Now I’ll state the next claim, and now I’ll get to this example. A slave is like a courtyard. That is Rava’s claim. I claim that this is always true, not only of a bound slave. A sleeping slave is like a courtyard. A practical difference, for example: even if his legs are not tied, if he holds leavened food, is that considered leavened food in my domain regarding the prohibition of “it shall not be seen”? I claim yes. Why? Because a slave is like my courtyard. He doesn’t need to be bound in order to be like my courtyard. For acquisition, it is not enough that he be a courtyard; it has to be a stationary courtyard. And a stationary courtyard is only a slave whose legs are tied. Therefore you have to tie his legs. That is the ukimta. So notice: the rule I’m stating, that a slave is like a courtyard, is true of every slave, not only a bound slave. So there is no question why Rava did not speak of a bound slave. On the contrary—he intentionally did not say we are dealing with a bound slave in order to explain to us what the rule is that he is coming to introduce. The rule he is coming to introduce is a rule that is true of every slave.
[Speaker L] Why didn’t he bring leavened food? What? Why didn’t he bring leavened food?
[Rabbi Michael Abraham] Because with leavened food there would be other problems—you’d need something else from the slave in order to see it. The practical expressions never express the rule in its purity. I tell you as a physicist: there is no case in the world, in our ordinary reality, in which a physical law appears in its purity. There will always be things that interfere and you’ll have to make ukimtot. There’s no such thing as a simple case. And therefore when you choose a case, you always have to assume that ukimtot will have to be made here in order to understand the matter. And now what I’m essentially saying is the following claim: that Rava’s statement is coming to state the general law that a slave is like a courtyard. And a slave is like a courtyard in every slave, not only a bound slave—in every slave. The practical expression of this, regarding acquisition of a bill of divorce through the hand of the slave—here he has to be bound because you need a stationary courtyard. Now people ask me: look, I understand the law—why does the Talmud say, wait, but a stationary courtyard does not acquire; who said we are dealing with a courtyard? We’re dealing with a slave. It’s not mentioned in Rava’s words, right? What does Rava say? He wrote a bill of divorce and placed it in his hand, and he was asleep and guarding it—this is a valid bill of divorce; if awake, it is not a valid bill of divorce. How do we know this is about a courtyard? Because it is obvious to the Talmud that what they came to state here is the general principle that a slave is like a courtyard. That is the law they came to state here. Now the Talmud says: I understand—that’s the law they came to state here—but a courtyard, regarding acquisition, you want to state this through a case of acquisition, that he should acquire it with his hand. But acquisition through a courtyard too works only because it is stationary. It is true that a slave is a courtyard, but he is a mobile courtyard. It is true that when a person has frustration, it leads him to aggression—but he received education and he won’t react aggressively. We are dealing with a person who did not receive education. The law is talking about a person who did not receive education. So why didn’t you mention that when you told me that frustration always leads to aggression? Because I really am not talking only about people who did not receive education. In every person, frustration leads to aggression; it’s just that in some people the frustration will appear less because something else interferes with its appearance. Therefore this law does not need to say that we are dealing specifically with an uneducated person. Every person—frustration leads to aggression. True, there is another law that is also true, that education stops this or can stop it. But that’s not what I’m dealing with. But this law, that frustration leads to aggression, is true of every person. Therefore I don’t need to say that we’re dealing specifically with an uneducated person—every person. When I ask, okay, so where do we see this in practice, then I’ll say: no, it’s not merely that frustration leads to aggression; a person who was beaten in the morning will tend to hit back much harder in the afternoon. That is a casuistic expression of the general law. But that’s not true—it depends what sort of education he received. If he received good education, he won’t go grab an innocent person and beat him in the afternoon, right? Okay. So here we are dealing with a person who did not receive education. And again, that won’t bother anyone, because it’s obvious, since even a person who did receive education—frustration leads him to aggression, it’s just that the education offsets it. Meaning, the rule that frustration leads to aggression is true of every person.
[Speaker E] Literally, that’s not true. What? Literally, that’s not true. What do you mean literally?
[Rabbi Michael Abraham] Meaning, the verbal statement is “can lead.” No, no—leads. No, on that I insist. Leads, not can lead. It leads. That is exactly like the law of gravity: when you are under the influence of the earth, you receive an acceleration of GM divided by r squared. However, there can be additional influences that offset it, but it’s not that it isn’t true. It is always true. That is exactly what I want to claim here—that is exactly the nuance. Meaning, a person who is frustrated—it will lead him to aggression, period. It will not come to expression in the world because there are other forces that offset it, so it won’t come to practical expression in the world, but the urge to be aggressive will be there. Meaning, frustration does indeed create an impulse toward aggression, and that is what I am talking about. And that is exactly the point. Now what I just want to say—I…
[Speaker E] already—
[Rabbi Michael Abraham] really have to finish—so what I just want to say is, the implication of this matter, and we’ll see examples, is that there are places where—what does this really mean? What it means is that when we approach a passage with an ukimta, we need to think carefully: what is the general law this case is coming to tell us? After we understand that, after we understand that, we’ll understand that the ukimta does not address the general law at all. The general law is true even without the ukimta. Its practical expression will not appear except in the case of the ukimta. Okay? That’s the scheme. Now, this can also serve us in the opposite direction. After we understand it, it becomes a very powerful interpretive tool for the Mishnah and the Talmud. Because now when I see an ukimta, I understand that when the Talmud interpreted the Mishnah, that is not what the Mishnah came to say. The Talmud thought that the rule written in the Mishnah was a different rule—it was not this rule. Meaning, when I understand the principle of ukimtot, I now use it as an interpretive instrument, and I’ll show you how many difficulties it solves. Difficulties that medieval and later authorities raise, because it seems to me they were not aware of this point, this casuistic point, everything I said here. And here, it’s not only that they have a problem with this point—that you can’t understand what to do with ukimta, which is unclear—beyond that, you won’t understand the Talmud. If you don’t understand this point, you won’t understand the Talmud. You’ll remain with difficulties about the Talmud. And I’ll show you that. Meaning, these things are not merely an ad hoc answer that comes to say, okay, we have a problem with ukimta, so I’m offering a scheme that explains it. I’ll show you that this answer is correct independently of explaining ukimta. This is how the Talmud understood things, and if not, you won’t understand it. Okay? So we’ll stop here, and we’ll continue this later.