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Halakhah Uproots Torah and James Kugel

In his comments on last week’s parashah, Yeshayu Leibowitz pointed out an interesting comment by the Gaon of Vilna on Exodus 21:5-6.

‏ואם־אמר יאמר העבד אהבתי את־אדני את־אשׁתי ואת־בני לא אצא חפשׁי׃
‎‏ והגישׁו אדניו אל־האלהים והגישׁו אל־הדלת או אל־המזוזה ורצע אדניו את־אזנו במרצע ועבדו לעלם׃

Ex. 21:5 But if the slave declares, “I love my master, and my wife and children: I do not wish to go free,”

Ex. 21:6 his master shall take him before God. He shall be brought to the door or the doorpost, and his master shall pierce his ear with an awl; and he shall then remain his slave for life.

The Gaon makes the following comment in Aderet Eliyahu.

“Or to the doorpost”: The simple meaning of the verse is that the doorpost (mezuzah) is also valid, but the halakhah uproots scripture (אבל ההלכה עוקרת את המקרא), and so it is in the majority of this parashah, and in a number of parshiyot in the Torah, and this is the greatness of the Oral Law that it goes back to Moses at Mount Sinai (הלכה למשה מסיני) and it “It changes like clay under the seal” (Job 38:14). It is also written in the Tractate Makkot (22b) “How stupid are the rest of the people who stand up before a Sefer Torah but not before a great person, for the Torah says forty [lashes] and the Rabbis took one away.”

The Gaon’s comments is based upon the interpretation found in the Tannaitic Midrashim that only the door is valid (see Mekhilta, Mishpatim, Massechet Nezikin, parashah 2 and Sifrei Devarim, par. 122). The claim that “the halakhah uproots scripture (אבל ההלכה עוקרת את המקרא)” is found in numerous variations in a number of places. Sometimes the halakhah is described as “uprooting”, עוקרת, scripture, while other times it is “bypassing”, עוקבת, scripture. One source is b. Sotah 16a.

דא”ר יוחנן משום ר’ ישמעאל, בשלשה מקומות הלכה עוקבת מקרא: התורה אמרה בעפר (ויקרא יז:יג) , והלכה בכל דבר; התורה אמרה בתער (במדבר ו:ה) , והלכה בכל דבר; התורה אמרה ספר
(דברים כד:א) , והלכה בכל דבר.

As Rabbi Yohanan said in the name of Rabbi Ishmael, “In three places halakhah bypasses scripture: The Torah said “with dust” (Lev. 17:13) and the halakhah is with anything; the Torah said “with a blade” (Numbers 6:5) and the halakhah is with anything; the Torah said “book” (Deut. 24:1) and the halakhah is with anything.

It is important to note that this opinion is brought in the name of Rabbi Ishmael. In the Jerusalem Talmud there is a parallel source which also brings the opinion of Rabbi Akiba who arrives at the same conclusion, i.e. only the use of a door is permitted, but Rabbi Akiba learns this on the basis of the biblical text. (j. Kiddushin, 1:2, 59d) Perhaps this is another example of the different exegetical methods employed by Rabbi Ishmael and Rabbi Akibah. See this devar Torah for some more discussion of these sources.

It was very timely to come across these sources because I happen to be going through James Kugel’s book How to Read the Bible: A Guide to Scripture, Then and Now
and I came across the following formulation.

So Judaism has at its heart a great secret. It endlessly lavishes praise on the written Torah, exalting its role as a divinely given guidebook and probing lovingly the tiniest details of its wording and even spelling. Every sabbath the Torah is, quite literally, held up above the heads of worshippers in the synagogue, kissed and bowed to and touched in gestures of fealty and absolute submission, some of which may, incidentally, be traced all the way back to ancient Mesopotamia. Yet upon inspection Judaism turns out to be quite the opposite of fundamentalism. The written text alone is not all-powerful; in fact, it rarely stands on its own. Its true significance usually lies not in the plain sense of its words but in what the Oral Torah has made of those words; this is its definitive and final interpretation.
(pp. 680-681)

2 Responses to “Halakhah Uproots Torah and James Kugel”

  1. 1
    John Hobbins:

    Thanks, Michael, for this post.

    I’m wondering however, if עוקבת is not rather “supplant,” as one would expect on the basis of biblical Hebrew. עוקמת, on the other hand, would be “bypass,” as would עוקפת. According to Jastrow, the latter occur as variant readings in the text considered.

  2. 2
    Menachem Mendel:

    The version in the j. Talmud and the midrash Sifrei on Devarim is עוקפת. Your feeling for the correct translation is far better than mine. I think that I was translating the Bavli in light of the version and translation that I saw of the Jerusalem Talmud.

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