by Dan Jutan, SBM Fellow
How should halakhah deoraita (carrying Biblical authority) be determined in new circumstances? One possibility is that halakhah is a self-contained system, in which all legal mandates are derived by legal reasoning from legal precedents. Another possibility is that the means mandated by halakhah are sometimes derived from moral, ethical, or pragmatic explanations of why the halakhah ought to be a certain way, or of why G-d would want halakhah to be a certain way.
BT Sanhedrin 21a:Talmud presents this issue as in complex dispute between Rabbi Yehudah and Rabbi Shimon.
“He (the king) must not have many wives”—aside from eighteen.
Rabbi Yehudah says:
He can have many wives,
but only if they don’t lead him astray.
Rabbi Shimon says:
Even one—if she leads his heart astray,
he must not marry her.
If so, why does Scripture say don’t have many wives?!
Even (wives) like Avigayil
Does our Mishnah mean to say that R. Yehuda is doresh taama dikra and R. Shimon is not?
But we heard the opposite, as a Mishnah elsewhere teaches:
A widow, whether poor or wealthy –
one may not take collateral from her,
as Scripture says
You may not take the garment of a widow for a pledge,
In the opinion of R. Yehudah.
Rabbi Shimon says:
From a rich widow—one may take collateral; from a poor widow – one may not take collateral;
and you are obligated to return it to her, and you’ll give her a bad name amongst her neighbors.
So evidently, Rabbi Yehuda is not doresh taama dikra and Rabbi Shimon is!?
Generally, Rabbi Yehudah is not doresh taama dikra,
but it’s different here, because the taama is explicit in the verse:
Why he must not have many wives? Because and his heart will not stray.
But Rabbi Shimon would say to you as follows:
Let’s see – generally we are doresh taama dikra. That being so, the Torah should just write
he must not have many wives and then be silent—I’d figure out the rationale and his heart will not stray. So why does Scripture write and his heart will not stray?
To teach that even one, if she leads his heart astray—he must not marry her.
Given that, what meaning does he must not have many retain?
Even (if they are) like Avigayil.
What precisely does doresh taama dikra mean? In the context of this sugya, it appears to describe a process of resolving an issue of Biblical law on the basis of the rationale for that law. Rabbi Shimon thus decides that the law against taking collateral from widows does not apply to rich widows because they would be much less likely to engage in regular and extended interactions with the lender.
However, the root verb drsh does no usually refer to practically applying an idea, but rather to exegetically extracting an idea from a verse. An SBM Fellow suggested that it refers here to extracting something from an assumed rationale, to being doreshthe taama rather than the kra.
But what is a taama? The word can refer to either a rationale and a reason. There are numerous ways to inflect that distinction. One is that a reason explains why a law was originally legislated, the motive for the law, while a rationale explains why that law still has force today, the justification for the law.
This distinction recalls one made by Rabbi Yosef Dov Soloveitchik in Halakhic Mind. The Rav argues that one cannot legitimately ask why G-d commanded a particular law, as one can never know G-d’s mind. However, you can examine the effects of following G-d’s command. Thus, in contrast to Rambam, the Rav would not allow saying that G-d commanded us not to wear shaatnez because idolatrous priests wore shaatnez. You could however investigate whether not wearing shaatnez increased our sense of distance from idolatrous practice. You can’t say God that commanded Shabbos so that we would have a day of rest, but you can say that observing Shabbat yields the experience of a restful day.
Applying the Rav to our context, we can say that being doresh taama dikra means that one can or should resolve ambiguities or controversies about Biblical law in favor of the positions that will most likely yield the same result as the law has in the past. But we should not make the historical-theological claim that this is the reason the law was commanded, and one could not challenge existing law, or develop radically new law, on the ground that the existing law does not fulfill its purpose.
By introducing the Rav’s distinction, we connected the issue of taama dikra to the ongoing discussion in Jewish tradition about the legitimacy and significance of taamei hamitzvot, rationales or reasons for commandments. Is that discourse necessarily connected to the halakhic process dispute about being doresh taama dikra? Minchat Chinukh (464) explicitly connects the discourses. He argues that engaging in taamei hamitzvot is an intrinsically hubristic enterprise – how can we know why G-d commanded something? – that can be justified only by the need to determine the halakhah, by being doresh taama dikra. We might also have thought that doresh taama dikra referred specifically to reasons or rationales derived by exegesis of Scripture – kra – but Minchat Chinukh cites examples that seem derived simply from reason or common sense, or what one SBM fellow called “svara.”
We saw that the Talmud itself asserts that there is a dispute between Rabbi Shimon and Rabbi Yehudah regarding whether/when we are darshinan taama dikra. Minchat Chinukh implies that every one of the myriad instances in the Talmud of rabbis offering rationales for a Biblical law follows the position darshinan. or at least all the instances where those reasons or rationale are not exegetically grounded. How do we rule?
Beit Yosef says that we rule darshinan, as seems indicated by Minchat Chinnukh. Rambam, however, seems maddeningly inconsistent. In various places in the Mishneh Torah he appears to rule like the positions darshinan, never darshinan, anddarshinan only on the basis of exegesis, respectively.
Lechem Mishna to Laws of Lenders and Borrowers 3:1 seeks to resolve these inconsistencies. He sets up two wholly incompatible resolutions. In one of these, Rambam rules darshinan, but interprets a Mishnah against the Talmud; in the other, he rules lo darshinan, but contends that Talmudic sugyot have implicitly conflicting understandings of Rabbi Yehuda’s position. Each resolution portrays Rambam’s rulings as motivated by mechanical rules of decision, such as “The law follows an anonymous Mishnah,” or “Talmudic discussions located as commentaries on the Mishnah they interpret take precedence over discussions of those Mishnah cited elsewhere.” Lechem Mishnah is forced to construct this complicated architecture to resolve only a few of the relevant cases in Rambam. It seemed clear that to resolve all the relevant cases by these means would require complexity to a degree that would greatly diminish credibility.
Is there a better way to resolve Rambam? Rabbi Klapper presented his thesis in the following logical progression:
- No Tanna or Amora every explicitly espouses the positions darshinan taama dikra or lo darshinan.The Talmud assigns these positions to Rabbi Shimon and Rabbi Yehuda respectively.
- There seems to be no tradition behind these assignments. Rather, the Talmud suggests that specific positions held by Rabbi Shimon and Rabbi Yehuda imply positions on the broad issues of darshinan.
- Without an explicit statement or a clear tradition, there is no way to prove from any specific halakhic position, or set of halakhic positions, that a specific authority held Io darshinan. For example, Lechem Mishnah notes that Rambam in the Mishneh Torah rules like the position lo darshinan as presented in an anonymous Mishnah, but in his Commentary on the Mishnah, Rambam provides a taam to explain that Mishnah! Any ruling against someone else’s taam may reflect a rejection of their specific rationale, rather than a principled rejection of the relevance of all taams. The simplest explanation of Rambam is that he rules darshinan in principle, but reserves the right to reject any specific taam that fails to convince him.
- Every halakha will eventually encounter new circumstances which present challenges that cannot be resolved mechanically on the basis of precedents or formal rules of authority. In such circumstances, there are three alternatives:
- treat every question arising from those circumstances as an unresolvable safek (doubt)
- grant one or more halakhic figures unaccountable halakhic authority
- resolve the situation by considering the taam behind the law in prior cases
Rabbi Klapper argued that treating whole areas of halakhah as unresolvable will make the unliveable, and that granting halakhic authority without accountability violates “not in Heaven” and the entire nature of the Halakhic process, and is practically dangerous as well.
Therefore, everyone at some point must be willing to doresh taama dikra. In fact, there is no contrary position in the tradition. By assigning the positions darshinan to Rabbi Shimon and lo darshinan to Rabbi Yehudah, the Talmud meant only that Rabbi Shimon was much more enthusiastic about this legal strategy than Rabbi Yehudah was, not that Rabbi Yehudah would never use it. It is a “soft” rather than a “hard” machloket.
Rabbi Klapper argued that his position is necessary if we wish to extend halakhah meaningfully into the rapidly developing technological future, such as the realm of genetic editing via CRISPR that is SBM’s specific topic this summer. The alternative is that more and more areas of life will be walled off from Halakhah.