Friday, April 13, 2007

Hermeneutics- The 13 midot - Two opinions - Rambam and Ramban.

(Continued from the last two posts)

In the second Shoresh, Rambam addresses the Mitzvot that are deduced using the 13 Midot, the hermeneutical rules that were given at Sinai. He disagrees with Behag who considered many of those rules as De’oraitot and listed them as part of the 613 Mitzvot. He refers us back to his introduction to the Pirush Hamishna to the third category where he clearly differentiated between the hermeneutically derived Mitzvot and those that were transmitted. Rambam’s position is that any law derived using the 13 Midot is generally Derabanan unless we are specifically told they are De’oraita. Unless we find a clue in Chazal that it was a Kabbalah (as in Mesora- Transmission not the mystical sense) we must assume it is rabbinic law. There are instances where although the law was received at Sinai orally, the Rabbis will try to find a reference to it in the text using the 13 Midot; they will however let us know somehow that they are Mekubalot.

Rambam makes a very interesting observation in this discussion. He refers to the Gemara in Temurah 16:1 which tells us that during the mourning period for Moshe, 1700 halachot “Kalin Vechamurin ugezeirot shavot vedikdukei soferim”, were forgotten and Atniel ben Knaz reconstituted them. Rambam notes that if 1700 were forgotten how much larger must the whole corpus of the new halachot have been! Clearly Moshe had developed “many thousands” (literally Rambam’s words) halachot using the hermeneutical rules and none of them are considered other than rabbinic law. Rambam therefore concludes that unless the transmitters of the law (the Rabbis in Mishna and Talmud) specifically indicate that the law that has a hermeneutic connection to the text is De’oraita or “Guf Torah” (belongs to the Corpus of Torah - a term coined in Gemara which Rambam does not define - at least to my knowledge).

This position of Rambam has created a host of difficulties and almost every student of Halacha has to deal with this difficult rule. One of the biggest difficulties is that we find many cases where a hermeneutic law is defined as Sinaitic and we still find arguments among Rabbis. Ramban in his comments on this Shoresh lists extensively cases where there are clues that they are De’oraita when they are not and vice versa. He also lists cases that are clearly De’oraita and we find arguments. Much has been written on this subject and anybody that learns Mishne Torah is confronted with the problem constantly.

I would like to focus on a comment Rambam makes in this Shoresh and Ramban’s response, which again opens a window into their understanding of the philosophy of Halacha.

Rambam comments:
ספר המצוות לרמב"ם שורש ב

ואולי תחשוב שאני בורח מלמנותן להיותן בלתי אמתיות והיות הדין היוצא במדה ההיא אמת או בלתי אמת, אין זו הסבה אבל הסבה כי כל מה שיוציא אדם הם ענפים מן השרשים שנאמרו לו למשה בסיני בבאור והם תרי"ג מצות. ואפילו היה המוציא משה בעצמו אין ראוי למנותם

(My paraphrased translation)-
Do not think that the reason I do not include them [the hermeneutically derived laws] in the listing is because they are untrue, that the law derived in such a way is correct or incorrect. That is not my reason. The reason is that everything one derives (שיוציא) is considered a branch that sprouts from the roots that Moshe received at Sinai in the form of explanation of the written text. Only the roots are part of the 613 Mitzvot. Even when Moshe himself was the person who derived these laws they should not be counted.

Rambam cautions us against questioning the validity of the Laws derived by hermeneutics. They are a necessary part of our legal system as long as they were instituted by a recognized Beit Din. They just are not Sinaitic and therefore Derabanan and changeable by subsequent Batei Din. They are not “Mekubalot” and thus not immutable[1]. Professor Halbertal notes that Rambam introduces the idea of branches and roots as a metaphor for these two classes of laws. He understands that Rambam sees the laws derived by hermeneutics not as being read into the text but rather as analogous cases to the textual law. They are logical extensions that we arrive at by comparing them to the specific written rule. Halbertal understands Rambam to hold that analogous cases are never De’oraita notwithstanding how similar they are. I am not sure he is right in that. I do agree though that Rambam does not read these derivative laws into the text. To support his argument Rambam uses the rule
אין מקרא יוצא מידי פשוטו, where he reads it simply that the text is never read other than literally. The hermeneutics are case related rather than textual. As we will see Ramban disagrees and argues that they are derived from the text.

השגות הרמב"ן לספר המצוות שורש ב

ופליאה דעת ממני נשגבה לא אוכל לה, שאם נאמר כי אין המדות הנדרשות מקובלות מסיני ולא נצטוינו לדרוש ולפרש בהן את התורה א"כ הרי הן בלתי אמתיות והאמת הוא פשטיה דקרא בלבד לא הדבר הנדרש, כמו שהזכיר [עמ' נד] ממאמרם אין מקרא יוצא מידי פשוטו, ועקרנו שורש קבלתנו בי"ג מדות שהתורה נדרשת בהן ורוב התלמוד אשר יוסד בהן.

(Paraphrased translation)
I do not understand! If we argue that the hermeneutics are not Sinaitic law nor do they reflect the meaning of the text, they are therefore untrue. If the truth is as Rambam argues based on אין מקרא יוצא מידי פשוטו the literal meaning of the text, we have destroyed the source of our Kabbalah which consists of the 13 Midot and most of the Talmud which is based on them.

Ramban will not accept that the 13 Midot are not text related. He is adamant that they are one of the possible meanings of the text and therefore have as much validity as the literal meaning. As opposed to Rambam, he therefore sees all the laws that are deduced through hermeneutics as De’oraita unless specifically told that they are not.

Again we see how these two great Halachist had opposite views of what Mesora is. Ramban sees the text as the sine qua non of all possible laws. The Rabbis read into the text and learn from it how the Halacha should be. Of course Rabbis disagree on how to read and Halacha is established according to the majority reading. The text is flexible and expandable as to its meanings – it has many. Rambam on the other hand sees the text and the related explanations as sacrosanct. The laws that are transmitted – the Mekubalot – are immutable. The Rabbis have special authority to extend the laws and apply them to analogous cases. These are not De’oraita unless otherwise stated.

[1] רמב"ם הלכות ממרים פרק ב הלכה א

ב"ד גדול שדרשו באחת מן המדות כפי מה שנראה בעיניהם שהדין כך ודנו דין, ועמד אחריהם ב"ד אחר ונראה לו טעם אחר לסתור אותו הרי זה סותר ודן כפי מה שנראה בעיניו, שנאמר אל השופט אשר יהיה בימים ההם אינך חייב ללכת אלא אחר בית דין שבדורך.


  1. I am not sure I agree with your analysis of the Rambam. There is a difference between saying things derived through the 13 middot are not to be counted as mitsvot and saying that they are derabbanan. The former is clearly true while the latter is questionable. I believe R' Avraham ben Harambam addresses this in a teshuva about the Rambam's position regarding kessef for qiddushin. More after Shabbat...

  2. Of course you are right and Magid Mishna as well as Kessef Mishna say so . I alluded to it when I said:
    "Halbertal understands Rambam to hold that analogous cases are never De’oraita notwithstanding how similar they are. I am not sure he is right in that."

    The striking part though is that Rambam sees the text as inviolate while Ramban who generally is seen as the more conservative, allows it much more flexibility.

    Shabbat Shalom to you too.