The Daf Yomi cycle this weekend reached Chezkat HaBatim – a chapter of Talmud with a reputation for its complexity as well as its fundamental Talmudic principles. One passage with a particularly important implication appears right at the start of the chapter and is cited as part of the analysis of derashot (hermeneutical deductions) in an early chapter of Talmud Reclaimed.
What is the true nature of these textual derivations which are so ubiquitous throughout the Mishnah, Talmud and Midrash? Do they represent genuine attempts to decode and uncover divine intent woven into the Torah’s text or are they more accurately regarded as “asmachtot” – rhetorical devices used to consolidate and recall laws already known via the tradition or pre-decided by the Sanhedrin?
This question has already been debated fiercely by great rabbinic scholars.
A notable example from the beginning of the third chapter of Baba Batra seeks to identify a source for the law that three years’ possession of land creates a presumption in favour of ownership. Rabbi Yochanan reports in the name of those who belonged to the Sanhedrin in Usha that this law was derived from the case of a goring ox, whose legal status – and responsibility for its owners to guard it – is altered after three instances of goring.
If this derivation was simply intended to serve as a rhetorical device or memory aid, it would be sufficient that the source and derivative both possessed the same broad legal principle: that a series of three is deemed to represent or generate a change of legal status. Numerous highly detailed and technical objections are raised, however, to the comparison between the case of the ox and that of land possession.
Ultimately the Talmud’s presumptions are upheld: those who derive the three-year presumption from the goring ox would indeed be bound by such details. The other sages however, who relied on a different source, did not consider that the details of the three-year land possession presumption was influenced by details of the ox-goring derivation. Thus the proposed scriptural source for rabbinically-legislated details of Torah law can directly be seen to influence the nature and application of those details.
In opposition to the Malbim, other rabbinic scholars such as Rabbi Dovid Tzvi Hoffman, Rabbi Jose Faur and Rav Yitzchak Rabinowitz in his Dorot Rishonim have argued that derashot are not a genuine source of knowledge. Rather, they are seen as fulfilling a pedagogical purpose in that they help to associate pre-established laws with the Torah’s text. In support of this position are lengthy lists of derashot which seem contradictory and the great degree of flexibility and discretion seemingly accorded to the sages in formulating such hermeneutical readings.
Talmud Reclaimed cites numerous case studies and arguments in support of each of these contrasting positions, noting in the process how they can both legitimately claim to be strongly sourced within the Talmud. In light of the strength of the arguments boosting each of these positions, the book attempts to plot a middle path which integrates elements of them both.
Drawing upon several examples, we suggest that the numerous examples that we explore in the book highlight the extent of rabbinic discretion in implementing these principles, it would seem that derashot cannot be seen as a rigid set of divine instructions that bind the rabbinic legislators to formulate specific details. Instead, they may be best approached as looser indications from within the text, guiding the sages in how to make use of their discretion when establishing these details of Torah law. Ultimately, however, the authority to legislate these details lies with the Sanhedrin, which can choose how to make use of the interpretative and hermeneutical principles to produce such laws. Those principles merely establish certain parameters and guidance to the Sanhedrin.
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