The Rationales and Reasons Behind the Commandments, Lesson 7

Table of Contents

• Maimonides’ approach to the rationale of the verse and the dispute among the tannaim
• “He shall not take many wives” and Maimonides’ explanation of the limit of eighteen
• Maimonides and Nachmanides on writing the reason in the Torah
• The rarity of the rule in the Talmud and the move to discussing exceptions
• Bava Kamma: derivatives of damages and the definition of horn–foot–tooth
• The Rif: exemption for tooth and foot in the public domain and its extension
• First qualification: using the reason to interpret words, not to change the law’s scope
• The Kiddushin example: clarification of meaning versus verbal analogy
• An anecdote: the Sma and the Shakh on “you shall not take a widow’s garment as collateral” and extending it to a divorcée
• Second qualification: when several linguistic interpretations are possible and the reason decides between them
• Third qualification: a self-evident reason according to Tosafot Rosh
• Fourth qualification: within exegetical derivations, reasoning is an inseparable part
• “Definition” versus “reason”: horn and sukkah as examples
• A note on “there are no Torah-level fences” and the difficulty with reasons of the fence-type

Summary

General overview

The text presents Maimonides’ view that we do not derive Jewish law from the rationale of a verse even when the reason is written explicitly in the verse itself, and suggests that the reason for this is not fear of error but commitment to the wording of the verse as the sole interpretation. So if a purposive reading leads to a conclusion that contradicts the verse’s language, that means we misunderstood the reason. In that context it presents the tannaitic dispute over “He shall not take many wives, so that his heart not turn away,” and the Maimonides–Nachmanides discussion of why the Torah writes reasons at all. It explains that Maimonides sees this as “to magnify the Torah and make it glorious,” while Nachmanides rejects the claim that this adds no legal novelty. It then moves on to “exceptions,” cases in which the Talmud or the medieval authorities seem in fact to use a reason in shaping the law, and proposes several qualifications that greatly narrow the rule that “we do not derive law from the rationale of the verse,” including interpretation of words, fitting the plain sense, a self-evident reason, and laws whose source is exegetical derivation. Toward the end it adds a distinction between “reason” and “definition / the nature of the commandment,” and notes the difficulty of reasons that function as a “Torah-level fence,” with the central example of “you shall not take a widow’s garment as collateral” and the speculative reason attributed to Rabbi Shimon.

Maimonides’ approach to the rationale of the verse and the dispute among the tannaim

The text states that Maimonides holds that we do not derive law from the rationale of the verse even when the verse itself gives the reason, as in the case of “He shall not take many wives, so that his heart not turn away.” It presents the view that according to Maimonides there is a three-way tannaitic dispute, and Maimonides rules like the first tanna, who is neither Rabbi Yehuda nor Rabbi Shimon. It rejects the explanation that the rule stems from fear of error, because when the reason is written in the verse there is no fear of error, and instead proposes that the principle is to follow the wording of the verse rather than a purposive interpretation that tries to alter the legal outcome. It argues that the dilemma exists only when there is a gap between the verse’s wording and a conclusion derived from the reason, and in such a case the assumption is that the verse is formulated precisely, so any departure from it indicates that we erred in the purposive interpretation.

“He shall not take many wives” and Maimonides’ explanation of the limit of eighteen

The text explains that in the Talmud Rabbi Shimon and Rabbi Yehuda interpret “so that his heart not turn away” as avoiding wicked wives, and they disagree over whether it is permitted to take many wives who are not wicked. It presents the first tanna as setting a limit of up to eighteen wives, without distinguishing between righteous and wicked ones, and beyond that it is forbidden; this is also the halakhic ruling, based on an exposition of “eighteen wives” as the limit. It suggests, in Maimonides’ name, that the assumption that “righteous women will not turn his heart away” is mistaken, because even a large number of righteous wives can turn his heart away in the sense of distracting him and diverting his mental attention from matters appropriate to a king. It concludes that on this view there is no need to derive law from the rationale of the verse in order to change the outcome of the verse, because both the reason and the wording actually lead to the same limit.

Maimonides and Nachmanides on writing the reason in the Torah

The text brings Maimonides’ explanation that the Torah writes reasons “to magnify the Torah and make it glorious,” and that this does not necessarily introduce a new halakhic point. It presents Nachmanides as attacking this and arguing that there are no verses that do not come to teach some novelty, and the lecturer notes that this is strange, since there are many verses in the Torah that do not introduce halakhic novelty, such as large parts of the book of Genesis. He emphasizes that in the case of “so that his heart not turn away,” everyone agrees that this is the correct reason because it is written explicitly in the verse; the dispute is whether one may infer changes in legal scope from it.

The rarity of the rule in the Talmud and the move to discussing exceptions

The text argues that the rule “we do not derive law from the rationale of the verse” should have left a broad mark across all discussions of Torah interpretation, yet in practice it appears explicitly in only a few passages, and the medieval authorities extend it to some additional places, but only a small number. It concludes from this that one must be cautious in applying the rule, and that there are many cases where it was not stated or does not apply. It opens a discussion of exceptions through two examples from the beginning of Bava Kamma in which the Talmud or the medieval authorities seem to shape the law based on an idea or rationale.

Bava Kamma: derivatives of damages and the definition of horn–foot–tooth

The text describes the Talmud’s discussion of the four primary categories of damages and the clarification of their derivatives, and whether “their derivatives are like them,” with the exception of pebbles, where only half-damages are paid. It notes that the Talmud defines the derivatives of horn as goring, butting, crouching, and kicking, and asks how kicking can be considered horn, since it is really foot. It answers that the distinction is based on the criteria of “unusual” and “intent to damage” as opposed to “it does not intend to damage.” It concludes that the labels horn–foot–tooth function as abstract markers for types of damage, not as biological descriptions of an organ: horn means unusual intentional damage, foot means ordinary damage done in the normal course, and tooth means damage in which the animal benefits from the act that causes the damage. It raises the difficulty that this seems like deriving law from the rationale of the verse with respect to “if it gore,” but later uses this to establish qualifications showing that this is sometimes interpretation of a concept rather than changing a law.

The Rif: exemption for tooth and foot in the public domain and its extension

The text explains that the Rif gives the reason for exempting tooth and foot in the public domain as being that a person has the right to walk there with his animal, and if someone leaves fruit in the public domain, the responsibility is his own. It notes that the Rif derives a halakhic practical difference from this: if an animal walked in the public domain and moved a board that extended into private property, and the board caused damage there, the owner of the animal is exempt even though the damage occurred in private property, because the basis for the exemption is the very permission to walk in the public domain. It notes that the Maharsha objects that this is deriving law from the rationale of the verse, and the text uses that objection to present the need for qualifications and distinctions.

First qualification: using the reason to interpret words, not to change the law’s scope

The text states that when the Torah uses a term and we need to clarify its meaning, it is permissible to incorporate purposive reasoning as part of interpreting the term, and this is not considered deriving law from the rationale of the verse. It distinguishes between a case where reasoning reveals the meaning of the words in the verse, and a case where the meaning of the words is clear and the reasoning seeks to narrow or broaden the law against the plain meaning—for example, the claim that “widow” means “a poor widow” in order to narrow the prohibition of “you shall not take a widow’s garment as collateral.” It explains that in the case of a widow the literal meaning is clear, and so limiting it to a poor widow is applying purposive interpretation to the law rather than interpreting the term itself, unlike “horn,” where goring is understood as a typical case of intentional and unusual action. It notes that the boundary is not sharp and raises the theoretical possibility of seeing “widow” as an example of a vulnerable person, as in other biblical contexts, but emphasizes that when the move includes an initial narrowing of the term against its literal meaning, that is already the problem at stake in the dispute.

The Kiddushin example: clarification of meaning versus verbal analogy

The text cites the Ritva in Kiddushin, who says that the comparison of “taking” to “taking” from the field of Ephron is not a verbal analogy in the usual sense, but rather a “clarification of meaning,” whose purpose is to clarify that the word “taking” means transfer by money. It explains that if this were an ordinary verbal analogy, one could also derive betrothal by document and by intercourse from it on the basis of the rule that a verbal analogy cannot be applied only partially. But the Talmud continues to look for separate sources, and therefore the correct understanding is that this is interpretation of a word, not a full legal analogy. It uses this example to sharpen the point that relying on a parallel place in the Torah in order to clarify linguistic meaning is plain-sense interpretation, not an exegetical derivation that creates a new legal system.

An anecdote: the Sma and the Shakh on “you shall not take a widow’s garment as collateral” and extending it to a divorcée

The text brings an anecdote from the book Nata Betokhenu by Rabbi Shmuel Ariel of Otniel about a dispute between the Sma and the Shakh over whether “you shall not take a widow’s garment as collateral” also includes a divorcée. It describes how the Sma tends to broaden it because the widow symbolizes vulnerability and loneliness, and a divorcée is similar in that respect, while the Shakh attacks this and argues that the vulnerability is not the same and therefore the law should not be extended. It emphasizes that neither of them presents this as a problem of “we do not derive law from the rationale of the verse,” even though this very verse is the focal point of the tannaitic dispute on the topic. It concludes that they understood such an extension as interpretation of the verse by way of example, without first narrowing it to a poor widow. It presents this as support for the idea that one may use reasoning to clarify “what the verse means” when no contradiction to the plain sense is created and no narrowing is introduced from outside through purposive interpretation.

Second qualification: when several linguistic interpretations are possible and the reason decides between them

The text adds that when the wording of the verse can bear more than one literal possibility, it is permissible to use the reason in order to choose among them within the bounds of the language, and only a move that takes the law against the literal interpretation counts as deriving law from the rationale of the verse. It presents this as a principle close to, but distinct from, the qualification of “interpreting words,” because here the reason is not defining a new word but deciding between possibilities that already fit within the language of the verse. It explains that this removes from the discussion of deriving law from the rationale of the verse many cases in which the interpretation does not contradict the plain sense but rather determines its framework.

Third qualification: a self-evident reason according to Tosafot Rosh

The text cites Tosafot Rosh on Bava Metzia 90, according to whom when “the reason is self-evident,” one does derive law from it, and only speculative reasons do not serve as a basis for halakhic derivation. It connects this to the dispute between Rabbi Shimon and Rabbi Yehuda over “you shall not take a widow’s garment as collateral,” and emphasizes that the reason suggested there by Rabbi Shimon is remote and not at all obvious, because he ties the prohibition to concern for gossip when the collateral is returned at night. It suggests that if the issue had been the simple reason of compassion for the widow’s vulnerability, the discussion might have looked different, and in any case the dispute over “we do not derive” focuses specifically on reasons that are not compelling. It applies this qualification also to the Rif’s reason for exempting tooth and foot in the public domain, and argues that in the Rif’s eyes this is a reasonable and natural rationale, and therefore not perceived as a problem.

Fourth qualification: within exegetical derivations, reasoning is an inseparable part

The text illustrates from the Talmud in Pesachim on “The Lord your God you shall fear” that Shimon HaAmsuni expounded every occurrence of the word “et” until he reached this verse, at which point he withdrew, until Rabbi Akiva came and expounded it as including Torah scholars. It concludes that Shimon HaAmsuni did not accept Rabbi Akiva’s interpretation, because the Talmud still identifies a tanna who “does not expound et.” It explains that Rabbi Akiva uses reasoning not to create the law but to choose what to include once the verse itself compels some inclusion, and so the reasoning here helps shape the content of the derivation rather than replacing the language of the verse. It generalizes that this is how all the rules of exegetical interpretation work: the exegetical “trigger” requires some act of inclusion, exclusion, or comparison, and reasoning defines in what domain the comparison is plausible and in what domain it is not. It concludes that in most laws whose source is exegetical derivation there is no room for the objection of “we do not derive law from the rationale of the verse,” because the rational element is built into the implementation of the derivation itself.

“Definition” versus “reason”: horn and sukkah as examples

The text presents a yeshiva-style line of thought according to which in many places the Talmud is not giving a “reason” but establishing the “definition” of the law, and so this is not purposive interpretation but the definition of the law’s scope. It returns to horn as an example in which “it intends to damage” and “unusual” are not explanations of why the Torah imposed liability, but determinations of what is included in the concept. It cites, in the name of Rabbi Shilat, an example from Rav Dalia Nadel, who distinguishes between “the subject matter of the commandment” and “the reason,” and presents “You shall dwell in sukkot” together with “you shall dwell as you ordinarily live,” from which laws emerge such as the exemption of one who is suffering from the sukkah, as understanding the meaning of the commandment rather than an attempt to infer a purpose that would change the law. It emphasizes that the question “what does the law say?” necessarily involves reasoning, but it is not the same as the question “what is the law meant to accomplish?” from which one then derives fences or external limitations.

A note on “there are no Torah-level fences” and the difficulty with reasons of the fence-type

The text presents a later-authorities rule according to which generally “there are no Torah-level fences”—that is, the Torah forbids an act because it is problematic in itself, not because it may lead to some other prohibition, and the work of making fences is left to the sages under the heading of “make a safeguard for My safeguard.” It notes exceptions that are mentioned, such as seclusion and the prohibition of owning leaven on Passover, while also qualifying that these are not entirely agreed upon, and it cites the Ran regarding the prohibition of owning leaven. It sharpens the point that a correct purposive reason explains how the problematic result follows from the act itself, not through “maybe it will lead” to some other act, and applies this to “He shall not take many wives” by saying that the turning away of the heart is a result of the multiplication of wives itself. It points out that “you shall not take a widow’s garment as collateral,” according to the reason attributed to Rabbi Shimon, looks like a genuine fence-type reason, and explains that at least according to Rabbi Shimon there are a few cases in which a Torah-level law is interpreted as a fence, while in practice the halakhic ruling follows Rabbi Yehuda, who does not derive law that way.

We’re in the topic of the reasons for the commandments. At the end of the previous class—well, in the previous class—I described Maimonides’ approach. Maimonides says that we do not derive Jewish law from the reason of the verse, even where the verse itself states the reason. Like: “He shall not multiply wives for himself, lest his heart turn away.” And we saw that there is a dispute among the Tannaim. According to Maimonides there is a three-way Tannaitic dispute, and he rules like the first Tanna, who is neither Rabbi Yehuda nor Rabbi Shimon. And I explained that if we understand that we do not derive law from the reason of the verse because there is a concern about error, then it is not reasonable not to derive law from the reason of the verse when the verse itself states the reason. If the verse itself says the reason, then there is no concern about error. The verse tells us what the reason is; we won’t make a mistake. So if Maimonides says—or the first Tanna following him—that we do not derive law from the reason of the verse even where the reason appears in the verse, that means the problem is not concern about error. And I also explained that in my view concern about error is a problematic explanation for why we do not derive law from the reason of the verse. And therefore I said that maybe what Maimonides holds—and again, really this is the first Tanna—is that we do not derive law from the reason of the verse because we follow the language of the verse and not purposive interpretation. Because if interpretation… after all, where does the dilemma arise whether or not to derive law from the reason of the verse? In a place where the wording of the verse points in one direction, and if we do purposive interpretation in light of the reason, we reach a different conclusion. And then the question is whether to follow the language of the verse or the reason—purposive interpretation. In a place where there is harmony between the reason and the wording of the verse, then there is no dilemma. So what does it mean there to derive or not derive law from the reason of the verse? You have what is written in the verse, and it also fits the reason, so there is no dilemma. The dilemma exists only where there is a difference or distinction between the language of the verse and the reason. And if so, then Maimonides says—perhaps, this is what I’m suggesting—that the moment such a situation exists, that means we got the reason wrong. Because if our conclusion is that when we follow the reason we arrive at some conclusion that does not fit the plain wording of the verse, then that means the verse’s wording is not formulated… the verse is not formulated precisely. The assumption is that the Holy One, blessed be He, knows how to formulate. So if He wrote the verse in that way, then apparently that is what He intended. And therefore if purposive interpretation leads to different conclusions from the linguistic interpretation—the interpretation of the verse itself—that means we simply erred in the purposive interpretation. I gave an example from the very case discussed by the Talmud and by Maimonides and Nachmanides, in the case of “He shall not multiply wives for himself, lest his heart turn away,” where we saw that in the Talmud itself Rabbi Shimon and Rabbi Yehuda say that “lest his heart turn away” means that he should not take wicked wives. The difference between them is only the question whether he may multiply wives who are not wicked. Because if you say we follow the reason, then there is no problem: marry as many wives as you want—they aren’t wicked, so they won’t turn your heart away. If you say we follow the wording of the verse, it says: “He shall not multiply wives for himself,” and we do not derive law from the reason of the verse. Although there of course it gets flipped around, because the reason is written in the verse. I’m not going back now to why the Torah gave a reason. What? Why did the Torah give a reason? So Maimonides says: just to teach us the reason, to magnify the Torah and glorify it. To magnify the Torah and glorify it. He says it’s nothing more—that is exactly what Maimonides writes explicitly. And Nachmanides really says that cannot be; there are no verses that come without teaching some novel point. By the way, that is strange. It’s strange because there are lots of verses in the Torah that introduce nothing new in Jewish law. Almost the entire book of Genesis introduces nothing new in Jewish law. What, there are no verses in the Torah that come to teach us—I don’t know—ideas, history, whatever you want? And not necessarily with a halakhic implication. But that is what Nachmanides argues, and that is his dispute with Maimonides.

So the claim is basically that “lest his heart turn away” really is the correct reason according to everyone. “Lest his heart turn away,” because it is written explicitly in the Torah. Even if he takes one wicked woman, yes. And therefore nobody disputes that this really is the reason for the prohibition, because it is written in the Torah. So what is the argument about? Rabbi Shimon says that since the Torah wrote a reason here—and after all we derive law from the reason of the verse even when the Torah does not write a reason—then why did it write the reason? Apparently this is an additional command. So the first clause is one thing, and this is another command. Rabbi Yehuda says: since ordinarily we do not derive law from the reason of the verse, here, when the Torah wrote it, that is what it wanted—that we should derive law from the reason of the verse. Therefore here they reverse the positions. What does the first Tanna say? The first Tanna says that we go with the language of the Torah: up to eighteen. It makes no difference whether they are wicked or righteous; fewer than eighteen is permitted, no matter whether wicked or righteous. But more than eighteen is prohibited. And that is how we rule in practice. Why? So my claim is simply: what would we have thought? If we go by the reason, then we would say that it is permitted to multiply many righteous wives, right? Because they will not turn his heart away. And if we do not go by the reason, then even righteous wives are prohibited in large numbers. Maimonides says: what do you mean? If you multiply righteous wives, that too turns your heart away. Someone who has thirty righteous wives is still dealing all the time with his harem instead of dealing with the things he ought to be dealing with. And therefore it turns his heart away. It does not turn his heart away in the sense that he will specifically commit sins; rather, it turns his heart away in the sense that his mental attention—meaning, he is not occupied with the important things; it pulls him elsewhere. Why eighteen? What? They derive it from verses, never mind, that is how they derive it, yes. Eighteen wives. Eighteen wives is the boundary up to which you live; beyond that you die. What? This whole argument works very well for a king, but regarding the widow, you can’t say—I don’t understand—the Torah wasn’t formulated clearly, but rather that this is a limit of capacity, and there there is no issue of imprecise interpretation. Wait, I’ll get to that, I’ll get to it in a moment, because that really is a different case.

So the claim is basically that if purposive interpretation leads us to a conclusion different from the literal interpretation, from the linguistic interpretation, then that means we erred in the purposive interpretation. We thought that “turning his heart away” means coming to commit sins. Not true. We simply erred in understanding the purposive interpretation or in applying it. No—even turning the heart away also comes from many righteous wives, and therefore the limit is eighteen both according to the reason and according to the language of the verse. In other words, according to Maimonides we do not derive law from the reason of the verse because there is no need to. And in every place where we would want to derive law from the reason of the verse, that would be a deviation from the plain sense of Scripture, and deviation from the plain sense of Scripture means we are not correct. Especially according to Maimonides’ approach, which we have already seen more than once, where Maimonides says in the second root that every verse has only one interpretation. Meaning, he argues that derash is not an interpretation of the verse; derash is an extension of the verse, like branches that emerge from roots—that is how he writes there. And Nachmanides attacks him on this and says: the Torah has seventy facets; one verse can be interpreted in several ways. Maimonides’ view is that peshat, the plain meaning, is the interpretation of the verse. There are no other interpretations. Other interpretations are expansions, derashot, other things. The interpretation of the verse is the plain meaning. If so, that strengthens even more what he writes here as well. Because here too he is basically saying: what is written in the verse, the language of the verse, that is the interpretation of the verse. If the interpretation based on the reason of the verse does not fit it, then it is simply wrong. All right? Therefore we do not derive law from the reason of the verse. So then why was it written? Why did the Torah write the reason? To magnify the Torah and glorify it. In order to teach us why the Torah… sometimes there are places where the Torah wanted to teach us why something is prohibited and not leave it vague. That was the main discussion we had last time.

At the end I finished with two examples that are apparently exceptional examples, where the Talmud or the medieval authorities do derive law from the reason of the verse, or at least so it seems. And both are taken from the beginning of Bava Kamma, and that is really the beginning of the discussion I want to have today—a discussion of exceptions. Because it turns out that this principle, that we do not derive law from the reason of the verse—which is apparently a very sweeping, total principle—we should have expected to see its fingerprints at every step, in every passage. After all, this whole secret of how to interpret verses is constantly there, and if someone does not derive law from the reason of the verse, we would expect to see it everywhere. Meaning, that he would stop here and say: wait, wait, you are doing purposive interpretation here; we do not derive law from the reason of the verse. It hardly appears. There are passages—where it appears explicitly, maybe two or three passages, no more than that in the Talmud. The medieval authorities raise it in other places—they take this principle—but really they are countable; these are isolated places. And the question is why. There is some extremely broad principle here, and it almost never appears. So that means one probably has to be careful with it. In other words, there are many cases regarding which this rule was not said—that we do not derive law from the reason of the verse.

So last time I began with two examples. One of them is an example that the Talmud itself gives at the beginning of Bava Kamma. The Talmud there brings the four primary categories of damages: the ox, the pit, the grazer, and the fire, in the Mishnah, and then the Talmud starts to detail them and in the end discusses the question whether their derivatives are like them or unlike them. Meaning, the question whether the derivatives—there are primary categories of damage, and that means there are also derivatives. The question is whether the derivatives have the same law as the primary category or not. And then the Talmud starts clarifying what the derivatives are; it goes through each of the primary categories and checks what its derivatives are, and sees whether the law is the same law or not the same law. In the end their derivatives are like them, except for one example: pebbles causing half-damages. The discussion in the Talmud is very interesting, because for example the Talmud says that the derivatives of horn are goring, pushing, crouching, and kicking. These are the derivatives of horn. Again: goring, fine; pushing, meaning with the body, kind of shoving with the body; crouching, where the animal crouches on something and crushes it that way; and kicking. Then the Talmud asks: what do you mean? But kicking is foot. Why is that a derivative of horn? Kicking is foot. And then the Talmud says: what are you talking about? Horn is unusual and done with intent to damage, whereas foot is not intended to damage. By those criteria, kicking is a derivative of horn, not of foot. Because kicking is done intentionally to damage. Damage of foot is when the animal walks in its normal way and while doing so simply tramples something; it did not intend to damage, it does it in the course of walking.

Now what did the Talmud actually do? And so too regarding everything else. In the end it reaches the conclusion that these primary categories— tooth, foot, and horn—are not connected at all to tooth, foot, and horn. Rather, tooth, foot, and horn are names, or symbols, or whatever you want to call them, for kinds of damager—abstract types of damage. So horn, as I said, is unusual damage, not the normal behavior of the animal, and done intentionally, with intent to damage. Those almost always go together, because if you do something unusual then apparently it is in order to damage, otherwise why did you do it—although there are differences. Foot is something normal. Tooth is where the animal benefits from the damage. Yes, it eats, so it does it in order to enjoy, not in order to damage, but in the end it ate my produce, so it damaged me. And so on—they go through each of the primary categories of damages there and define it in a way that is not connected at all to its name—tooth, foot, and horn—but to the idea, the form of the damage.

Now apparently this is some kind of deriving law from the reason of the verse. You say to me, “If an ox gores the ox of his fellow,” so there is a law of an innocuous ox and a forewarned ox, but that is only for horn. Now I say: what does “gores” mean? Not “gores,” but “damages with intent to damage”—that is the Talmud’s translation. The Torah says “gores”; it says with the horn he gores. That’s it. About that was stated the difference between an innocuous ox and a forewarned ox. You are doing purposive interpretation; you are basically saying: one second, what is the point here? The point is that damage that occurs intentionally—there you have innocuous ox and forewarned ox, and you have to warn the owner about the animal, and it is not presumed guarded, and everything the Talmud says there. But all that is deriving law from the reason of the verse. Yet we do not derive law from the reason of the verse. That is one example.

The second example, also in the same context: the special rule that distinguishes tooth and foot is that they are exempt in the public domain. Meaning, if an animal causes damage in the manner of tooth or foot, then if it is in the public domain the owner is exempt. On this the Rif writes, and following him the Rosh and Maimonides continue—in somewhat different formulations—that the Rif writes: since it is a person’s right to walk in the public domain, and if this happens in the course of the animal’s normal walking, then you cannot blame him for anything; he has a right to walk there. And if someone placed produce there in the public domain and the animal, in the course of walking, stepped on it or ate it—yes, tooth or foot, unlike horn—then the problem is with the one who placed the produce there. He should not place produce there. He knows that people have a right to move around in the public domain, that is what the street is for—to have people walking there with their animals. Therefore if he put produce there, the problem is his. What does the Rif conclude here? A legal conclusion from that reason. And therefore I say—we talked about the fact that deriving law from the reason of the verse is not interpretation of the Torah; one may engage in interpretation of the Torah. “We do not derive law from the reason of the verse” means that we do not do purposive interpretation from which legal consequences are drawn, meaning that the interpretation creates a legal difference for me. Not that I am forbidden to interpret laws that appear in the Torah; commentators do that all the time.

So the Rif says—the conclusion from what he says is—what happens if the animal walked in the public domain and there was a long plank lying there, a board, yes, that lay partly in the public domain and extended into private property. Now the animal walked in the public domain, moved the board, and the board caused damage in the private domain, meaning it broke some vessel there because it shifted. The Rif says that in such a case, even though the damage occurred in private property, the owner of the animal is exempt. Why? Because it walked in the public domain, and the whole reason for exemption is that a person is permitted to walk with his animal in the public domain; that applies here too. Right? Therefore, even though the damage occurred in private property, and apparently “and it consumes in another’s field”—yes, apparently according to the language of the Torah, which says one is liable for damage in private property, where one is indeed liable—the Rif says no, one is not liable; one is exempt. Because the reason for this exemption is that a person has the right to walk in the public domain. So the Maharsha asks him: that is deriving law from the reason of the verse—what license is there to derive?

Now here—as someone already noted in the previous class—we have to get into several qualifications. Why don’t we say here: because of “his arrow”? Half-damages and pebbles. Why would it be because of “his arrow”? Because there was an arrow. It could be the animal’s arrow perhaps, not the… First of all, it is also not the animal’s arrow, because an arrow is something that then detaches from you. The board—the animal uses the board and it immediately breaks; it did not throw the board. If it had thrown the board, then that would be a doubt in the Talmud, a doubt concerning pebbles, because those are the animal’s pebbles. Then there is the question whether there is an unusual form of pebbles leading to quarter-damages. But here it is not pebbles; it damages by means of the board. How it struck, how it changed it, whether or not it moved it—that does not matter. We are speaking of such a case. The question of proof is a question in the laws of evidence. Wait—so the claim is basically that there are very many limitations on this rule that we do not derive law from the reason of the verse.

One limitation is that if in the Torah a certain term is written and we are looking for the meaning of that term—“horn” is written, and we ask: what is “horn”? Is horn an organ of the animal? It could be that “horn” means a certain type—or “goring”; in the Torah it does not say “horn,” it says goring: “If an ox gores a man.” It could be that the Torah simply uses goring as an example, an example of damage done intentionally and in an unusual manner, as opposed to other damages. And if so, then that is what is written in the Torah. It is not that the Torah wrote one thing and I am giving it purposive interpretation and changing it. Rather, purposive interpretation merely reveals to me the meaning of the words or of the verse written in the Torah itself. That I do do. After all, I somehow need to know what is written in the Torah. Usually, when I take the literal interpretation of the words, that itself still does not determine the law clearly. You still have to understand a bit what is being discussed, how… You can never entirely cling only to the formal and pure interpretation of the words themselves. It never works. There is always some conceptual element. But when that conceptual element comes to decipher the meaning of a word that appears in the Torah, that is fine. We only do not derive law from the reason of the verse when we are trying to understand the reason for the verse, not the meaning of the verse, and from that to derive a legal implication.

For example: “You shall not take the garment of a widow as collateral.” There is no discussion here of what the concept “widow” means. Everyone knows what the concept “widow” means. A widow is a widow—someone who does not have a husband, whose husband has died. That is a widow, right? No one claims that the word “widow” means a poor widow. Rather, he claims that because of the reason for the law—you are giving her a bad reputation among her neighbors—one should limit the law only to a poor widow and not to a rich widow. He is not using the reason or the logical analysis to understand the meaning of the words in the verse; the meaning of the words in the verse is clear. What he wants is to apply purposive interpretation to the law. The verse says widow, but I ask myself: what is the logic of “You shall not take the garment of a widow as collateral”? That logic exists only in a poor widow. So if that is so, then the law applies only to a poor widow and not to a rich widow. That Rabbi Yehuda does not agree to do, and the first Tanna also does not agree to do. Ah, the first Tanna—but never mind, yes… But in a place where the interpretive consideration is only a consideration that tells me what the word means, fine. I somehow have to understand the words of the Torah, and if conceptual reasoning is involved in that, that is perfectly fine. Conceptual reasoning is part of the tools we have to decipher what the Torah is saying.

We once saw an example of this, I think—I don’t remember in what context it was. The Talmud at the beginning of Kiddushin discusses how we know that a woman is betrothed with money. There is money, document, and intercourse. From where do we know that a woman is betrothed with money? And the Talmud brings a verbal analogy: “taking” “taking” from the field of Ephron, yes? “I have given the money for the field, take it from me,” in the field of Ephron, and “when a man takes a woman.” So there is a verbal analogy of “taking” “taking” from the field of Ephron. On this the Ritva says there on page 3a that this verbal analogy is not a verbal analogy in the usual sense of one of the methods by which the Torah is interpreted, but rather what he calls a clarification of meaning. What does that mean? When we take an ordinary book, when we read an ordinary book, there is some concept that is not entirely clear to us in what sense the author uses it. What do we do? We look for it in other places in the book and see in what… maybe there it is clearer in what sense it appears, and from that we learn about the place we are discussing, right? That is not a verbal analogy. That is straightforward interpretation; one does that in any text. It does not require one of the methods by which the Torah is interpreted. Therefore, says the Ritva, we learn from the field of Ephron that the meaning of the word is transfer of money. Fine—so also regarding a woman, where it says “when a man takes a woman,” it means by means of money. That is not a verbal analogy. A verbal analogy means: there is a word “taking” here and a word “taking” there, and therefore we need to compare these two things legally—not because of the meaning of the word, but because there is the same word or the same root, we compare the two places legally and derive various legal conclusions. That is a verbal analogy. Here it is not a verbal analogy.

One of the implications is, for example, that when we look for a source that a woman is also betrothed by document and by intercourse, we do not learn it from the field of Ephron—even though I could have continued, after all a verbal analogy is not applied halfway; that is the Talmudic rule. So if you make a verbal analogy, you do it fully. Great—then we solved all the Talmud’s problems in Kiddushin. No need to find a source either for document or for intercourse; it is the same comparison. A field is acquired by money, document, and taking possession, and a woman is acquired by money, document, and intercourse. The parallel seems obvious, because what is taking possession? Taking possession means use of the field—locking it, fencing it, breaching it. The “use,” as it were, of a woman is intercourse. Okay, so in practice, if this were a verbal analogy, the Talmud would have stopped there and not looked for a source for betrothal through intercourse and a source for betrothal through document. We would learn from the field—there is a verbal analogy, and a verbal analogy is not applied halfway. You do not make the verbal analogy only for money; whatever exists there exists here too. But the Talmud does not do that. The Talmud continues looking for a source for document, a source for intercourse. And the medieval authorities are not even troubled by the fact that the Talmud continues; they do not ask why, because for everyone it is clear—almost everyone. In Tosafot maybe it sounds a bit otherwise—but for almost everyone it is clear that this is not a verbal analogy at all; it is a clarification of meaning. Therefore there is really no comparison at all between woman and field. A verbal analogy means that you have to compare the two contexts. There is no comparison; it is unrelated. Therefore, by the way, all those who think there is an act of acquisition regarding the woman here—meaning that you become her owner when you betroth her—that is simply a misunderstanding of the Talmud. It has nothing to do with feminist or anti-feminist apologetics today. The Talmud is not comparing a woman to a field at all—no connection. If the Talmud were comparing, we would finish the mishnah in one line. But in practice the field of Ephron is acquired by money and not by possession and not by document—couldn’t that affect and contradict your position now? Why? Acquisition of a field—but we know that there is document and… There I need additional verses for the field. Now I ask about a woman, after you learned it from the field. What is the problem? There is a verbal analogy. For the field, you learn from the verses about the field. Now in the verbal analogy, you take everything you learned about the field and transfer it to a woman—that is what one often does in a verbal analogy. I brought this only as an example from this “taking” opposite another “taking” in the Torah. Fine, that already takes us into the topic in Kiddushin; it is not important right now. I only bring this as an example that basically—what is a clarification of meaning as opposed to a verbal analogy? It is exactly the distinction I made here. Clarification of meaning means this is not a derivation; I am not interpreting the idea of the verse or comparing woman to field. I ask myself what the word “taking” means. I want to check elsewhere in what sense the Torah uses the word “taking,” and I look at parallel places and check. That is called interpreting words. Sometimes I would interpret words by means of reasoning or purposive interpretation—that is perfectly fine. It has nothing to do with deriving law from the reason of the verse.

Woman as land? That a woman in intercourse is like land? No, “passive ground”—that is unrelated. “Passive ground” is a conceptual point: the idea is that when the woman is had sexually, she is passive. It has nothing to do with any comparison between woman and land. So a word is a word—what does that have to do with it? “For man is a tree of the field”—so therefore man is a tree? That is a metaphor. One uses a metaphor to explain that there is something in man that resembles a tree—he blossoms, he is rooted—say whatever interpretation you want. “Woman as passive ground” is not even an interpretation of woman; it is a description of the act. The act of intercourse—the woman’s role in the act of intercourse is passive; she is passive ground. There is no comparison whatsoever between woman and land; nobody compares them.

Why don’t we say that “widow” is only an example of someone who is alone? Like a divorcée, someone who has no one? Here this really is an interesting question; maybe I’ll add it already here since you brought it up. There really might have been room—this boundary is not very sharp. Meaning, it is clear, because even in the case of widow there would apparently have been room to say that we need here an interpretation of the word. What does the word mean? As we saw with horn. There? I am saying widow is only an example; it is not really specifically a widow, but an example of what? An example—just as widow, stranger, and orphan are often examples of a miserable person, right? An example of a miserable person. So there would have been room to say that we are speaking only of a poor widow, and then that indeed is word-interpretation. Now this is no longer just a qualification about purposive interpretation, because I am basically saying: the meaning of the word widow—I know that its literal meaning is a woman without a husband, or whose husband died—but the meaning of the word widow in this context, as in many other contexts in Scripture, means a wretched person. So since that is so, then basically this applies only to a poor widow, and of course to other miserable people too, not only the poor.

Here this is an interesting remark, because still there is a difference between this and horn. I said horn is an example of intentional damage. Because widow—the literal meaning is not like that. The literal meaning is a widow whether poor or rich. When you say she is an example, you are not only turning her into an example—you are also first narrowing her, and only afterward saying let’s view her as an example. With horn you do not do that. Horn—in every case of horn-damage it is basically goring. Goring is the result of oxen that gore; just that thing—why bring all those examples? No, again, I am not objecting to the claim that the case appearing in the Torah may be seen as an example. That is done often; that is obvious. I am saying that with widow you are doing something else. You first decide that widow means poor widow, and then you say, ah, and if so, this is an example of a miserable person. Why specifically poor widow? What about a rich widow? Anyone who is alone, with no support. With that I have no problem—but then that would include even a rich widow. Fine, very good. So in the dispute between Rabbi Shimon and Rabbi Yehuda, you still agree with Rabbi Yehuda that this includes even a rich widow, so then you are not deriving law from the reason of the verse. The one who derives law from the reason of the verse wants to limit it to a poor widow—Rabbi Shimon. Fine? To limit it to a poor widow is not only to turn her into an example, okay? Rather, you are saying: what is the idea here? Then you narrow the meaning of the word widow—one moment—in light of purposive interpretation. That is already problematic, because you are using purposive interpretation against the literal meaning.

But in goring too it is the same thing. Yes, because in goring what did you say? You said: I want it to be unusual and I want it to be intentional. And all that is not found in the word goring. In short, if I find a goring that is not intentional… That is not the point—you will not find it. Meaning, what do you mean you won’t find it? You might find it in very rare cases. The typical goring is like that. That is exactly the point. The typical goring, when an ox gores, it does not do it casually. If it were passing by with its horns and happened to hit something, that would be foot, not horn. That is exactly the point. Goring is always a directed act—that is the whole idea of goring. All right? Now I am not saying—I may be able to think of some hypothetical case—but the typical case is that. So there is a difference between this and widow. In widow, you are still going against the literal meaning; you are not claiming that this is the literal meaning. You first narrow the concept widow to poor widow, and now you say okay, and widow is an example of miserable people. So therefore I say there is still an act of narrowing compared to the literal meaning, and on that Rabbi Shimon and Rabbi Yehuda disagree there in Parashat Mishpatim.

Sheep and donkey—where what is lost is obviously not specifically sheep and donkey, it is just an example. No problem. Therefore I have no problem with taking the Torah’s case as an example; with horn too it is like that. As long as you are not narrowing the word that appears in the Torah in order to turn it into an example. But in widow, you are not only seeing her as an example; first of all you decide that we are dealing with a poor widow, the miserable one, and then you say widow is an example—in effect I want all miserable people. But the initial narrowing you did out of your own reasoning because of purposive interpretation, and that one does not do. But does it not say explicitly in the Torah, “If he cries out, I will hear him”—do not make them widows. Well okay, but why “You shall not take the garment of a widow as collateral”? That is written in another context. “You shall not take the garment of a widow as collateral”—there it does not write examples. “If you afflict him and he cries out to Me, I shall surely hear his cry, and My anger will blaze,” or something like that. Widow, stranger, and orphan—that is something else. So there are fine distinctions, but those distinctions are probably what separate the cases.

And now one has to understand that this takes a great many passages out of the discussion of deriving law from the reason of the verse. Because in all the passages where I am only interpreting the words—I am not narrowing, I am not going against the plain meaning—then that is not called deriving law from the reason of the verse. Even Rabbi Yehuda would do that. Now here I have basically said two things which usually go together but not always. I began by saying that the reason can take part in interpreting the words, as in clarification of meaning, and that is not called deriving law from the reason of the verse. And after that I continued with another principle, which is actually a somewhat different principle—very often they come together—but still somewhat different: that we only do not derive law from the reason of the verse where the result of deriving from the reason—that is what I said at the beginning—goes against the regular literal meaning. But if there are several possibilities for literal interpretation, all of them fit within the language of the verse, and now I have to choose among them, and I use the reason to choose one of the possibilities, then that is fine. Again, therefore deriving law from the reason of the verse when you go against the wording—this almost overlaps with what I said before, not necessarily but often they come together, but still these are two different principles, and there are various examples where you can see this.

There is a very interesting anecdote here regarding widow. There is a dispute between the Sema and the Shakh in Choshen Mishpat on this issue of “You shall not take the garment of a widow as collateral.” There is a very interesting anecdote about widow. There is a dispute between the Sema and the Shakh in Choshen Mishpat on this issue of “You shall not take the garment of a widow as collateral,” and it is really fascinating. There is a book by Rabbi Shmuel Ariel from Otniel called Neta Betokhenu. An excellent book, by the way—I really recommend it to anyone interested—a book on interpretation and on the principles of the Oral Torah. Two volumes have come out, and he says there is going to be a whole series. Excellent books. The man really has straight thinking. I think one should read everything he writes. In any case, there he brings—this is where I saw this example of the Shakh and the Sema. They disagree there about what “You shall not take the garment of a widow as collateral” means. There is a dispute there whether it also includes a divorcée. Well, what difference does it make? A widow is miserable, says the Shakh—the Sema—a widow is miserable, and a divorcée is also miserable, so it is also forbidden to take a divorcée’s garment as collateral, not only a widow’s. So the Shakh attacks him and says no, what are you talking about? The misery of the… how does it go there? I no longer remember the details. The widow’s misery is not the same as the divorcée’s misery. It is not only that she is alone, but also that her husband died or something like that, and therefore it does not include a divorcée.

But neither of them raises the obvious argument. After all, this is the very passage over which Rabbi Shimon and Rabbi Yehuda disagreed about whether one derives law from the reason of the verse. Here, on this verse, “You shall not take the garment of a widow as collateral,” there is this paradigmatic dispute between Rabbi Shimon and Rabbi Yehuda as to whether one derives law from the reason of the verse. Now come the Sema and the Shakh and derive law from the reason of the verse on that very verse, after ruling like Rabbi Yehuda that one does not derive law from the reason of the verse. We rule like Rabbi Yehuda that one does not derive law from the reason of the verse in the dispute over this very verse, and now come the Shakh and the Sema and argue about the reason for the verse, and according to that define the parameters of the law. So what, they do not remember that on this very issue we ruled that we do not derive law from the reason of the verse? Obviously they understood that this is not called deriving law from the reason of the verse. Why not? Because if they really take—say—expanding widow, they are not narrowing widow to poor widow. They say: like a widow, also a divorcée—say the Sema says this. Okay, no problem. Why? Because he is basically claiming that widow is an example. Widow is an example of a lonely woman, all right? A divorcée is also a lonely woman, okay, and therefore there is no narrowing here. It is not like extending the law to all poor people. Extending widow to all poor people is done in two steps: first I narrow it to poor widow—what about a rich one? Poor—and now I say this is only an example, but all other poor people too. But if I am speaking about loneliness, not poverty, loneliness characterizes every widow, poor or rich, it makes no difference, and therefore now I am doing only the second step, of viewing widow as an example. That one may do, as we saw with horn, as we saw with taking—that one may do; that is not called deriving law from the reason of the verse. A kind of paradigm case? Yes, exactly, a kind of paradigm case, exactly. And therefore this is a wonderful example, because precisely since it appears in the very verse over which Rabbi Shimon and Rabbi Yehuda disagreed, and there the decisors… derive law from the reason of the verse—nothing sharpens better than that the qualification I mentioned earlier: in cases where I am only looking for the meaning of the verse, if I see it as an example or ask myself what the verse means, then I am allowed to use that as a tool to understand what the verse is saying.

And what about an unmarried woman—would even the Sema agree that it does not include… Actually I am not sure; it may be that an older unmarried woman at least would also be included according to him, I do not know, perhaps. Okay, so these are the first two qualifications. The one qualification is that if I am looking for the meaning of the verse and it fits within the language of the verse—I am only asking what the language of the verse means—I can use the reason of the verse to interpret the verse, because that is not called deriving law from the reason of the verse. Here the emphasis is on “derive.” I am using the reason of the verse, but this is not a derash; it is plain interpretation. I am simply looking for the plain sense of the verse, and I use the reason to understand the plain sense of the verse. If I use the reason to derive from the verse—meaning, to go against the plain sense of the verse and make a derash—then we do not derive law from the reason of the verse.

And how is it that the Talmud does not extend it to a divorcée? If so, that should have been the dispute there; the Talmud itself should have said it. No, it does not deal with lots of things, so what is the issue? But this really overlaps with the matter of poor and rich—the extension and the narrowing. No, on the contrary—that is exactly what I am saying. The extension to a divorcée does not overlap. That is exactly the point, because the extension to a woman is an extension of all widows, not only the poor ones. You are not narrowing the concept that appears in the Torah in order to make the extension, whereas in the extension to poor people you first have to narrow the Torah’s concept and then extend it. So these are the two principal qualifications.

There is another qualification, and that is the Tosafot HaRosh in Bava Metzia 90, where he says that if the reason is self-evident, then yes, we do derive law from it. Meaning, if we are not doing something somewhat speculative, then we do not derive. But if the reason is self-evident, then clearly that is what the Torah means, and here—then we do derive. It is a very nice statement, because we are so accustomed to systematic analytic thinking that these sorts of distinctions are a bit hard for us. For me at least, they are hard. But it does not help. In the Talmud and in the medieval authorities—we spoke about this—that they are dismissive of these rules and very sharp definitions. Yes, a little common sense: in a place where it is obvious that this is correct, then it is correct. That is all.

The dispute is only—now note well what the dispute between Rabbi Shimon and Rabbi Yehuda centers on in “You shall not take the garment of a widow as collateral.” The reason there is a very non-trivial reason. If it had said, “You shall not take the garment of a widow as collateral because a widow is miserable, and therefore when you take her garment it is forbidden,” that would have been obvious; then say it applies only to a poor widow. But even Rabbi Shimon does not say that. Rabbi Shimon claims that the reason is that you give her a bad reputation among her neighbors—I mentioned this. Meaning that when you will have to return the collateral—the Torah says a few verses earlier that if he is poor, then you must return the collateral to him at night—so if she is a poor widow, what will happen is that you will go with the collateral to her house at night, and then people will begin gossiping about you: what are you doing at that widow’s house at night? Okay, that is very speculative. So because of that one does not take the garment of a widow as collateral—because if you return it to her at night, people will begin whispering and evil tongues will spread. The interpretation I would have given as the trivial interpretation is that she is miserable—meaning, have mercy on her; why are you taking her collateral? If that were so—if Rabbi Shimon had suggested that—it may be that Rabbi Yehuda too would have agreed. It may simply be that both of them in some sense understand that this is not it; never mind for now why. And to the explanation Rabbi Shimon offers, Rabbi Yehuda says: we do not derive law from the reason of the verse, because it really is a far-fetched reason. By contrast, a reason that is compelling, or part of the plain sense of the verse, where it is obvious that this is so—even Rabbi Yehuda does not disagree there.

What is Rabbi Yehuda’s reason? What? What is Rabbi Yehuda’s reason regarding that same reason? What is Rabbi Yehuda’s reason for what? It could be that this is also the reason, but we do not derive from it. I said: he does not necessarily dispute Rabbi Shimon’s interpretation. He only claims that you cannot apply it legally. That is what is called not deriving law from the reason of the verse. Meaning that you cannot take from it some expensive item that she does not need to have returned to her until she gives you the money. So that could be—there could be room to say that with an expensive item you really can take it; who says not? I don’t know. Garment—because it says “the garment of a widow.” Never mind, but I am saying if it is an expensive garment. In any case, where do we draw the line? These are the sorts of questions I said earlier only trouble us. That is fine—modern thinking, like this: where do we draw the line? Use common sense. It is like how long a cubit is. I think we spoke once. How long is a cubit? Is it 56 centimeters, 60, 52? A cubit is putting your hand here—from here to here is a cubit. What? A cubit of an average person, by the way, not every individual person’s. That is already written in the Talmud and the decisors. It is not my cubit. I happen to be a little tall, so take two or three centimeters less. That’s it. They do not tell you down to the millimeter what precisely a cubit is or what an olive-bulk is. We get all tangled up over what an olive-bulk is and what a cubit is; they were not interested in that. Roughly whatever looks like an olive. What? I am saying I have no criticism; we are built this way. I think we need to go with our own heads—there is no choice. Jewish law has to be built according to the society in which it lives and functions. But once upon a time it certainly was not like that; nobody cared.

This is an additional qualification. Meaning, in a place where the reason is clear, then yes, we derive law from the reason of the verse. We will later see regarding rabbinic enactments that there is a parallel Rosh in a responsum. This is Tosafot HaRosh on the Talmud; there is a Rosh in a responsum who says this regarding rabbinic enactments, but we will leave that for a later stage. So the second qualification is when the reason is clear. Again, then there are already quite a few places where I say it comes up—for example the Rif. Yes, when the Rif said that tooth and foot are exempt in the public domain, the Maharshal asked: how can you derive law from the reason of the verse? And it could be that in the Rif’s eyes this was self-evident. Why exempt in the public domain? Because in the public domain everyone has a right to walk. That is a compelling reason, right? Anyone asked would think of that reason. It is a reasonable and logical reason. Therefore in such a place they do not get all tangled up. Meaning, this neutralizes many places where we might have been troubled: do we derive law from the reason of the verse or not? A place where the reason is compelling and clear—there yes, we derive. This already becomes a little amorphous, but that is the situation. Is what is logical available to every person or only to… To every person—what do you mean? To every person. Obviously. The only thing is that what each person does is not binding. You know, it is like derashot. When we spoke about derashot, I said that various people claimed to me that to have permission to expound derashot you need to be the Sanhedrin or ordained judges. They even brought some sources from Maimonides for that. There is no source in Maimonides that says that. What Maimonides says is that if the Supreme Court derives a derash, that binds everyone. But that is not because of some authority to derive derashot; it is because what they determine has authority over the public. But if I derive a derash for myself from a verse, it binds me. Because for me, that is the verse. Maybe I do not know how to derive, so I will not do it, but suppose I did know how to derive. I derive from the verse and get a result. You of course are not obliged to obey me; I am not the Sanhedrin. But that is not because I have no right to derive, but because what I do is not valid for others. I am not an authorized institution. It is not a matter of authority to derive derashot. For myself? For myself, certainly. If that is what comes out of the verse for you, then that is what you have to do.

This is an additional qualification. So I said: interpretation of words, a place where this does not go against the meaning of the verse, and when the reason is self-evident. Three qualifications so far. Now I am saying a fourth qualification. The fourth qualification is within the framework of derashot. What do I mean? I already once mentioned this passage in Pesachim—again I do not remember in what context—about “You shall fear the Lord your God,” to include Torah scholars. The Talmud says as follows: “And the other one does not expound ‘et.’” There is a dispute there among the Tannaim: one expounds ‘et’ and one does not expound ‘et.’ As it was taught: Shimon HaAmsuni, and some say Nechemia HaAmsuni, used to expound every ‘et’ in the Torah. When he reached “You shall fear the Lord your God,” he stopped. His students said to him: Rabbi, what will become of all the ‘et’s you expounded? He said to them: Just as I received reward for the exposition, so I receive reward for the withdrawal. Until Rabbi Akiva came and expounded: ‘You shall fear the Lord your God’—to include Torah scholars.”

Shimon HaAmsuni would basically go through each and every verse and take the word ‘et’ and expound something from it to include—some ‘et’ that comes to include. Yes? He was basically a kind of Ben-Gurion. Right? Ben-Gurion used to speak without ‘et.’ “Bring me the chair.” For him there were no ‘et’s. So that is Shimon HaAmsuni’s assumption: that when ‘et’ is written, it should not really be there; rather it comes to include something. Had they not wanted to include anything, they would not have written the word ‘et.’ What? Like it would mean “with”? “You shall fear with the Lord your God”—you are saying it means “with”? In many places ‘et’ means “with.” Ah, interesting idea—I had not thought of that. Yes, it could be; one has to think about it, that is interesting. In any case, if so then it is not Ben-Gurion. But it is interesting; I need to think about it. An interesting suggestion. In any event, ‘et’ does come in the sense of “with” in many places; that is clear in Scripture. I had not thought of its connection to here.

In any case, Shimon HaAmsuni expounded every ‘et.’ Every ‘et’: “Honor your father and your mother”—to include your older brother, to include your mother’s husband and your father’s wife, yes? The Talmud itself expounds that way. He reached this ‘et,’ “You shall fear the Lord your God,” and there he stopped. Why did he stop? Because what could you possibly include in addition to the Holy One, blessed be He? Together with the Holy One, to whom can you compare something? One must fear the Holy One, blessed be He, and whom else? Something else that is like the Holy One? What is this, idolatry in partnership? Yes? How can one include something else? Therefore he stopped. He says, “Just as I received reward for the exposition, so I receive reward for the withdrawal.” And more than that—not only did he stop there, he gave up all the expositions he had already made, because he realized there is a counterexample here proving to him that the word ‘et’ does not come to include. And therefore he basically gave up this principle that ‘et’ comes to include. That is what I spoke about then: that the principles of derashot are not necessarily principles that were known in advance; sometimes they take shape from the examples. But what matters for us here is something else.

Now Rabbi Akiva comes and proposes to him: “‘You shall fear the Lord your God’—to include Torah scholars.” Ah, how did I not think of that, says Shimon HaAmsuni. Right. No. He did not say that. He remained in his own position. How do I know? Because the Talmud opens: “And the other one does not expound ‘et.’” There is a dispute among the Tannaim whether one expounds ‘et’ or not. As it was taught: Shimon HaAmsuni used to expound every ‘et’ in the Torah, then he stopped, until Rabbi Akiva came. Meaning, you see there is a dispute whether to expound ‘et’ or not, and therefore the dispute among the Tannaim there in Pesachim also follows that dispute. So the Talmud understood that even after Rabbi Akiva said that “‘You shall fear the Lord your God’ comes to include Torah scholars,” Shimon HaAmsuni did not accept it. That is clear. He did not think of it? It is clear—he did not accept that position. Maybe yes, maybe no; it does not seem to me that he accepted it. It is like Ben Zoma. Ben Zoma did not think—suddenly Acher wakes up. I was not… How could one even think of it? It is strained even after he says it. To think of it on one’s own? How strained it is. And “that your days may be lengthened” means in the world that is entirely long—what? And “that your days may be lengthened” means that you will live a long time. What? In any case, ‘et’ comes to include. Perhaps ‘et’ comes to exclude? Perhaps ‘et’ comes to exclude? No—his assumption was that ‘et’ comes to include. Now he got stuck on “You shall fear the Lord your God.” Rabbi Akiva came and offered him a way out, and he did not accept it. Why did he not accept it? Because of course he was not prepared to accept that anything could be included in addition to the Holy One, blessed be He—to compare something to the Holy One, blessed be He, was out of the question. There is no such thing. What does it mean to include something with respect to the Holy One, blessed be He?

So what did Rabbi Akiva think? Does Rabbi Akiva think that Torah scholars and the Holy One, blessed be He, are the same thing? This is not idolatry for him. Rabbi Akiva says as follows: that ‘et’ comes to include—that is a given. There is such a rule, that ‘et’ comes to include. This is the rule in Rabbi Akiva’s school: inclusions. He worked with inclusions. He only says: we are stuck because we do not know what to include. And since the Torah instructed us to include, because it wrote ‘et,’ the Torah said to include—we have no option not to include. So we choose what is least implausible. Meaning, clearly nothing is plausible to include in addition to the Holy One, blessed be He. But what is least implausible is Torah scholars. So Rabbi Akiva says: fine, let us choose that. Now notice there is a very interesting point here. It could be that Rabbi Akiva, had he thought about this without the verse, what would he have said? To include Torah scholars or not? Meaning—not to include, there is nothing to include, but should one fear Torah scholars or not fear them? He might very well have said not. No? Why? He is not the Holy One, blessed be He—do not fear him. No, one need not fear him in the same sense as one fears the Holy One, blessed be He, I mean. In his place. No, true, he would not have said it. Only because of the verse does he say it. But once there is a verse, he uses reasoning to say what to include from the verse. Right? He says—it is not chairs that he includes; he includes Torah scholars. Why? Because it seems reasonable to him—or less unreasonable—that this is Torah scholars.

But he accepts the rule as an axiom. Correct. And Rabbi Shimon does not. Correct, and that is the dispute. Obviously they disagree, because the assumptions are different. Fine, I have no complaint against Shimon HaAmsuni. I am trying to explain Rabbi Akiva. Rabbi Akiva is basically saying: I use reasoning, but I use reasoning here not as reasoning that creates a law. This reasoning does not create the law. Rather, the inclusion creates the law. It says ‘et,’ so you have to include. The reasoning only tells me what to include. Meaning, after the Torah already tells me “include,” now I use reasoning to understand what to include. Now when we spoke about plain meaning and derash, I said that this is a prime example of what happens in all derashot. In all derashot this is basically what happens. Because in the end, when in the Torah there is a verbal analogy—there is the same word in two contexts. Okay, and so what? Say there is a verbal analogy between slave and woman, “to her, to her,” yes? A verbal analogy. So what? Because of that can one now enslave a woman like a slave? Make her into a slave? Write woman with an ‘ayin now because slave is written with an ‘ayin? In what respect am I supposed to compare them? Obviously reasoning tells us what is reasonable to compare and what is not reasonable to compare, right? After the verbal analogy is the trigger, telling me to make a comparison, reasoning comes and says in what respect to compare and in what respect not to compare. Meaning, there is no derash in the world that does not involve reasoning. There is no such derash.

But still, the derash is not based on reasoning. Laws based on reasoning itself—that will be the subject of our next chapter. But the derash is not based on reasoning. The derash is based on a trigger from one of the interpretive methods. Once we have the interpretive method that tells me the general direction—you need to make a comparison, you need to include, you need to exclude, you need to do something—now I search within my reasoning for what it is reasonable to include, exclude, compare, and the like. So here, certainly, reasoning does serve us in shaping Jewish law. A practical difference, for example: if I disagree with Rabbi Akiva—for in my view, the one who resembles the Holy One, blessed be He, more is actually the rebbes, not Torah scholars. Prophets. Yes, there are people who think that. Prophets, for example. Prophets, fine, whatever. So “You shall fear the Lord your God”—I want to include prophets, okay? To say rebbes is a bit much, but prophets, fine. So I want to include prophets. Okay? Am I deriving law from the reason of the verse here? Obviously not. I derive law from the reason of the verse here just as Rabbi Akiva derives law from the reason of the verse. I am doing nothing he did not do. Why? Because in derash there is a built-in conceptual element. You cannot carry out the derash without the conceptual element that tells you what to include. So I have a conceptual dispute with Rabbi Akiva as to whether reasoning points to including Torah scholars or prophets. Fine, that is a conceptual dispute that tells me how to shape the derash, but I must make a derash because it says ‘et.’ It is not a result of reasoning where the reasoning itself does not create the law. When reasoning does not create the law, there is no problem using reasoning. On the contrary—we use it all the time.

Therefore, for example, many difficulties raised by later authorities do not even get off the ground if one understands this. They ask about many things learned from a derash, and then people come and make conceptual arguments and try to shape the law differently. But we do not derive law from the reason of the verse. Unrelated. Something that comes out of a derash—we always derive law from the reason of the verse there. Because something that comes out of a derash is itself based on reasoning. Without that it would not exist. So now I ask: what is the reasoning that underlay the derash? And according to that I determine the law. “We do not derive law from the reason of the verse” applies only to a law written explicitly in the verse, like “You shall not take the garment of a widow as collateral” or “He shall not multiply wives for himself.” That is written in the Torah; these are not derashot. Now the question is whether I do purposive interpretation or not. So Rabbi Shimon and Rabbi Yehuda disagree. Up to this point. We have finished with interpretation of words, with cases where it fits the plain sense of the verse and does not contradict the plain sense of the verse, where the reason is self-evident, and where this is done within the framework of a law that comes from a derash. And understand: most of the laws we have come from derashot. Only a few laws are those written explicitly in the verse—those are the laws the Sadducees agree with, as the Talmud says. There are only a few such laws. Therefore this already removes a great many passages in which we would have expected the question of the reason of the verse to arise. It does not arise because it does not belong to one of these categories.

Now there are additional places where in yeshivot they are used to calling this: we are really asking what the definition of the law is, not what its reason is. Yes, when one sees the Talmud making purposive interpretation, then the typical yeshiva student asks: wait, but we do not derive law from the reason of the verse. And then his study partner answers him: no, no, this is the definition, not the reason. For example horn. Let us return to the example of horn. “Its intent is to damage and you are responsible for guarding it.” This is not purposive interpretation. I am not asking why the Torah made horn liable for half-damages in, say, the first three times. It does not answer the question why. This is not purposive interpretation. I ask what the law is about, and I establish the definition of the law. Now obviously one cannot do this without that. Meaning, how can you establish what the Torah’s definition is? The Torah says horn. Now decide what it means. Obviously you need to think about the idea behind the matter in order to define the contours of the law. But I am dealing with the definition of the law and not with the reason. The reason appears here in some embedded, indirect way. I do not use the reason itself to infer conclusions.

Another example of this that I saw from Rabbi Sheilat. Rabbi Sheilat writes in an article—I do not remember whether it was eventually published—in the articles people send me to look over and things like that, he writes there an example from Rabbi Gedaliah Nadel. He says that Rabbi Gedaliah Nadel used to call this the content of the commandment, as distinct from the reason. For example, when we say “You shall dwell in booths for seven days,” and the Talmud says: “You shall dwell” means “as you live.” “You shall dwell as you live” means that you have to live in it as in a house. So for example, one who is distressed is exempt from the sukkah, because if one is distressed—if it is not reasonable in your eyes to live there, then do not live there; you do not have to force yourself to stay there. Travelers may be exempt from the sukkah, and various other laws come out of “You shall dwell as you live.” A foul sukkah like a foul dwelling—if it is low and you cannot live in it, or things like that. The question is whether this is deriving law from the reason of the verse. In the Torah, “You shall dwell in booths for seven days,” it does not say there that one in distress is exempt. So when you tell me, you need to feel at home and therefore one in distress is exempt—is that not deriving law from the reason of the verse? He says no, this is not deriving law from the reason of the verse. I am not asking here why we sit in a sukkah. Nowhere. By the way, the Torah does say why: “So that your generations may know that I caused the children of Israel to dwell in booths.” The Tur at the beginning of the laws of sukkah even says—and the Bach infers from him—that at times this is actually indispensable and one must have this intention on the first night: “So that your generations may know.” But never mind; the verse states the reason why one does sukkah. Therefore this is not at all deriving law from the reason of the verse. What we are asking is what is written here in the verse, not why it is written. What is written in the verse? What must one do in the sukkah? What is written is: live. The word “dwell” means “live.” Fine? This is an interpretation of what is written in the Torah. So if that is so, what I am doing here is defining the contours of the law, my obligation. I am not asking why. If this is not purposive interpretation, then it is not called deriving law from the reason of the verse. Deriving law from the reason of the verse is only when the interpretation is purposive. I ask what the law is aimed at, and from that derive legal conclusions. But if I ask what the law says, that is simply to know what it says and what it does not say, otherwise how can I fulfill it? So obviously I may ask.

And of course, I say again, this is a bit disingenuous, because obviously the “why” is involved a little in the question of the “what” as well. What the Briskers always say, that we do not ask why, we ask only what. When you ask what, when you answer the what-question, you also use the why indirectly. True, but it is indirectly. But in the end you need to—it connects, all the qualifications I mentioned here, some of them connect to one another, because it really ties into the issue. When you ask yourself what “dwell” means, then what I am basically doing is using my interpretation to define the concept “dwell,” right? That is permitted. And when you discuss the reason of the verse in order to clarify a concept that appears in the Torah, that is not called deriving law from the reason of the verse. Therefore these are sometimes different formulations of the same principle, but still I think these are different principles, all these qualifications, and this is what is called the definition or content of the commandment as opposed to the reason. The reason is always when we are dealing with purposive interpretation. That is another qualification.

Maybe I’ll finish with a general remark—maybe I’ll finish this side of the issue of the reason of the verse. Wait, wait. So the concept of defining—does that come within reasoning? Meaning you define the contours through reasoning. Yes; here there could also be another definition. Correct, and there will be a dispute, as in many places in Jewish law there is a dispute. The question is what kinds of reasons I can expect there to be at all. Because the reason Rabbi Shimon gives for “You shall not take the garment of a widow as collateral” is actually some sort of protective fence, right? He is basically saying: do not take the garment of a widow as collateral because you may come to return it to her in the evening and then people will gossip about you. It is a kind of fence. Now the accepted rule among later authorities is that there are no Torah-level fences. Except for leaven? That is the exception everyone always brings. Two exceptions: seclusion and “it shall not be seen.” But generally speaking, the Avnei Nezer discusses this. He asks whether there are Torah-level fences, and the accepted claim is that there are not. The Torah states what is right or wrong in itself. If there is something with which there is no inherent problem, but it could lead to a problem, that is assigned to the Sages to prohibit. The Sages will prohibit it as a fence: “make a safeguard for My safeguard”; that is the role of the Sages. The Torah does not see its role as arranging the path toward right or wrong behavior. It tells me what is right and what is wrong—that is what it tells me. And indeed, as was rightly pointed out here, there are the two exceptions often brought, and even they are not entirely agreed upon. Seclusion is more accepted; “it shall not be seen” less so. “It shall not be seen” is the Ran, who argues that “it shall not be seen” is a boundary around eating leaven, meaning a fence around eating leaven; and seclusion also—I no longer remember who writes this, but they do write it—that seclusion too is a Torah-level fence. But these are two examples—two verses that come as one and therefore do not teach. These are two examples that come as exceptions. The exception testifies to the rule, and the rule is that there are no Torah-level fences.

Now if there are no Torah-level fences, then what reasons can we expect there to be at all? Can you explain again what it means that there are no Torah-level fences? A Torah-level law does not have the function of making a fence around something. It says that something is wrong; it does not say that this could lead to that which is wrong. So that means the fence itself—the thing itself is prohibited and is not a fence for something else? That there is a prohibition in what I am thinking? The thing the Torah prohibits is itself problematic, not that it is not problematic in itself but that if you do it you may come to do another act that will be problematic. Okay. Now the question is why almost every reason you can think of would in fact be some sort of fence. Almost always you say it is forbidden to do this because something such-and-such might happen. That is what explanation means. What does it mean to explain something? To explain something means: why is it forbidden? Because it can lead to such-and-such a result. Isn’t that what explanation is? So why isn’t every reason or every explanation some sort of Torah-level fence? Because it is not written. Because it is not written. What? No, after all, what did we say? For example, according to Rabbi Shimon, who derives law from the reason of the verse, Rabbi Shimon says that this is what the verse says. So what, he says there is a fence? Then are all the verses fences? I want to understand something conceptually here. I know why Rabbi Shimon derives law from the reason of the verse. Yes, but you just said—wait—there are no Torah-level fences. Meaning that when the Torah—for example, take the less good example of seclusion—forbids seclusion, not because I will come to intercourse, but because seclusion itself is forbidden. Correct. What is the connection now with interpretation? What is not written. Now I ask: Rabbi Shimon derives law from the reason of the verse, fine. Will he prohibit seclusion where it does not lead to intercourse? No. No, because he derives law from the reason of the verse, so what does that mean? That he basically sees seclusion as a fence around sexual prohibitions. Because otherwise you would prohibit all seclusion; why should it matter whether it leads to intercourse or not? So according to Rabbi Shimon it turns out that all the prohibitions in the Torah are based on the reason of the verse.

That is not exactly so, because it is true that whenever we explain a reason we explain what problematic results may occur, but the problematic results arise from the act itself, not from the fact that if you do it you will do another act that will be problematic. If I murder someone, the result is that he dies. So what is that, a fence? It is forbidden to murder him lest he die? If I murder him, he dies. That is not a fence, it is not… that is the result of the act I am doing. The act of murder is itself problematic, not that it is an unproblematic act but if you do it you may come to another act that is problematic. Therefore when we do purposive interpretation, the purpose does not mean that if you do this then something else will happen. Rather, it prohibits the very thing the Torah prohibits. Meaning, it explains why the thing itself is problematic. That is the purposive interpretation being discussed here.

What is the problem with multiplying wives? “Lest his heart turn away.” But that is already a result. But perhaps the result of multiplying wives itself, not of other acts he will do. Not of another act he will do. Yes, the multiplying of wives itself—when he has many wives in the harem—it turns his heart away. The garment of a widow… One moment—that is a point I am getting to. True, with multiplying wives there was room to hesitate, but remember that here the Torah itself writes the reason. And maybe that is the reason. Because here the reason really does have some dimension of a fence—not entirely a fence—and perhaps that is why the Torah writes the reason, to tell you that this is the reason even though it is really only a fence and not the essential reason itself. The big question is indeed the garment of a widow. Because there, with the garment of a widow, this really is a fence. The Torah tells you: there is no problem taking the garment of a widow as collateral. Rather what—then you will have to return it to her, and then at night they will gossip about you. That is really a fence, right? So here indeed—but these really are rare cases, as I said earlier. It seems that at least according to Rabbi Shimon there are other Torah prohibitions that are fences. The prohibitions from which he derives law from the reason of the verse. Again: only a few, at least from what appears in the Talmud, only isolated ones. Fine? And in practice we rule like Rabbi Yehuda, who indeed does not derive this way. So from the standpoint of practical halakhic ruling, even these cases do not derive law from the reason of the verse. But according to Rabbi Shimon there are a few additional cases where there is a Torah law that is essentially a fence, in its very nature a fence. Good.