What’s the big deal you might ask?
Well one small case study, which features in the Daf Yomi’s commencement of Kiddushin today, demonstrates the immense implications of how we categorise Talmudic laws.
An illustration of these far-reaching implications can be found in Rambam’s rulings concerning the laws of marriage. The standard text near the start of his Hilchot Ishut describes three possible methods through which a marriage can be effected:
Through the transfer of money, through the tansfer of a formal document and through sexual relations. The methods of sexual relations and formal document have their origin in the Torah, while the method of transfer of money is rabbinically legislated [divrei soferim]
While it seems clear that Rambam regards the method of money transfer as a rabbinically-legislated detail of Torah law, an alternative version of the text’s conclusion features in Rabbi Yosef Kapach’s edition of Mishneh Torah, replacing divrei soferim with “the effectiveness of all three have their origin in the Torah”. This version, which can be found in certain manuscripts, was claimed by both Meiri and Rambam’s own son, Rabbi Avraham, to have been written after Rambam retracted his earlier position towards the end of his life.
The method of creating marriage by means of money transfer appears in the Talmud (at the start of Kiddushin) to be created hermeneutically by means of a gezerah shavah. Does this mean the sages in the Talmud were actually creating a new hitherto unknown method of forming marriage or are they merely identifying a scriptural source for a transmitted Sinaitic tradition?
Rambam’s position on the matter depends on which manuscript of Mishneh Torah is assumed to be authentic.
Rambam’s retraction, which views the gezerah shavah merely as a convenient aide-memoire for a previously known Sinaitic tradition, demonstrates the general complexity involved with trying to identify those apparently hermeneutical derivations which are actually consolidating laws that were transmitted through the tradition.
The practical implications for a future Sanhedrin of whether the standard version of Mishneh Torah or its claimed revision is the correct version are enormous. If the method of money-transfer is understood to be of purely biblical origin, this would place it beyond the reach of the Sanhedrin’s legislative powers. Significantly, however, if the method is to be identified as a rabbinically-legislated detail, this would suggest that the sages have legal authority to innovate novel formulas through which marriage could be formed. Such an innovation could, in theory, pave the way to an entirely different approach within Jewish law to marriage, divorce and help to address agunah issues.Further questions present themselves: If the sages really do possess so much power to legislate details of Torah law through a Sanhedrin-type body, do laws that they create become fully-fledged biblical laws in the same way as those received at Sinai? To what extent can such laws be said to reflect God’s will and further His intent behind those commandments?
First posted to Facebook 15 August 2023, here.
