Peshat and Midrash Halakha (3)

d. Rabbinic interpretations that contradict the peshat

In previous shiurim we noted that many traditional commentators frequently understand there to be tension and contradiction between the simple, peshat interpretation of the text, and the halakhic conclusions derived from it. While many instances of the phenomenon are noted by a wide range of commentators, none of them provides a detailed explanation for the existence of the phenomenon. In order to attempt such an explanation, let us distinguish between four different types of such contradiction.

The first category we will look at concerns instances where the contradiction between peshat and derash arises from the authority of the Sages to interpret the verses in a way that differs from their plain meaning. Cases in which the Sages employ this authority can themselves be divided into two sub-categories: (1) reinterpretation stemming from moral considerations; (2) reinterpretation stemming from practical considerations.  In this shiur and the next, we shall examine the first of these two subcategories.

(1) Re-interpretation motivated by moral considerations

The first group pertains to differences between peshat and derash where moral considerations are involved. For instance, let us consider one of the best-known examples of a discrepancy between the peshat and the midrash halakha: “an eye for an eye,” lex talionis. This law is stated explicitly in the Torah in several places, including Vayikra 24:19-20:

"If a man maims his neighbor, then as he has done, so shall be done to him: a breach for a breach; an eye for an eye; a tooth for a tooth; as he has caused a man to be maimed, so shall it be caused to him."

The Talmud interprets the verse to mean that the person who inflicted the injury must provide monetary compensation, rather than actually receiving a physical punishment that parallels that injury he himself inflicted.[1]

However, the plain meaning of the verse does indeed suggest a physical punishment, as the Rambam notes:

"One who has caused a limb to be lost, will lose the same limb; 'as he has caused a man to be maimed, so shall it be caused to him.' Do not occupy your mind [for now] with the fact that we actually impose a monetary punishment, for my aim here is to explain the reason for the verse [appearing as it does], and not to explain reasons for the halakha – even though concerning [the reason for] this halakha, too, I have an opinion, which I shall express orally."[2]

The Rambam's son, Rabbi Avraham, likewise wrote in his Bible commentary (Shemot 21:24):

"The plain meaning of the text is clear, and the traditional interpretation is that the text calls for the monetary value of a tooth as payment for a tooth, and so on concerning each instance."[3] 

The Rambam asserts that he has an explanation for the discrepancy between the plain meaning of the text and the Oral Law, but he prefers not to set it down in writing. Intriguingly his son, too, notes (ad loc.):

"Also my father and teacher, of blessed memory, in his Guide, hinted at an oral interpretation with a wondrous resolution between the received tradition and the plain meaning of the text, but it may not be written down, because he concealed it."

What is this secret that was concealed by the Rambam? Why, in fact, is there a discrepancy – even a contradiction – between the peshat and the midrash halakha in this regard?[4] In order to answer this question, we will need to review the relevant passages concerning the law of ‘an eye for an eye’ both in the Talmudic context as well as in the writings of the Rambam and other commentators.

It must be noted at the outset that elsewhere in the Rambam's writings, a different impression arises. In his Mishneh Torah he writes:

"How do we know that when the Torah states, concerning the limbs, 'an eye for [tachat] an eye' etc., it refers to financial restitution? For it is written, 'a blow for [tachat] a blow' (Shemot 21:25), and [concerning the administering of a blow] it states explicitly, 'If a man strikes his fellow[5] with a stone or a fist… he shall pay for his idleness, and he shall surely be healed' [i.e., he pays also for his medical expenses] (ibid. 18-19). Since we learn that the word'tachat,'mentioned with regard to a blow, indicates financial restitution, we conclude that the same word used in relation to the eye and other limbs has the same meaning." (Hilkhot Chovel uMazzik 1:5)[6]

The Rambam then goes on to add:

"Although these interpretations are implicit in the Written Law, they are all also set forth in the tradition handed down by Moshe from Mount Sinai, and they are all accepted as the practical ruling. This is what our ancestors saw [carried out] in the court ofYehoshua, and in Shmuel's court in Ramah, and in each Jewish court that has functioned from the days of Moshe until the present time."[7]

The Rambam seems to be contradicting himself: in Moreh Nevukhim he writes that the plain meaning of the text is that the offender's eye is actually to be put out, while in Mishneh Torah he writes that Chazal's conclusion that the reference is to monetary restitution is "implicit in the Written Law."[8] Moreover, the author of Dor Revi'i[9] raises a difficulty concerning what the Rambam writes in the Mishneh Torah: what is the source for the assertion that the law stating "an eye for an eye [means] monetary restitution" is a law handed down from Moshe at Sinai (Halakha le-Moshe mi-Sinai)?

"I find the claim that at no time in history did the court's sentence ever involve the [perpetrator's] actual eye very difficult to understand. The Rambam himself writes that with regard to all rabbinical interpretations it is possible to rule contrary to the ruling of a previous court, but [argues that] this [particular law] is a law handed down by Moshe from Sinai – which, according to the opinion of the Rambam, cannot be disputed. But Chazal taught their interpretation [that the reference is to monetary restitution] based on a logical deduction from 'a blow for a blow,' as the Rambam himself writes there. And in such an instance some court at some point in time must surely have had the power [to rule differently]?" (Introduction to Dor Revi'i on Massekhet Chullin, Jerusalem 5764, p. 7)[10]

To understand the Dor Revi’i’s argument, we must preface his words by noting that the Rambam (in his introduction to the Commentary on the Mishna, as well as in Hilkhot Mamrim 1:2-3) divides Chazal's teachings derived from verses through midrashei halakha into two types:

a. the less common type consists of "interpretations received from Moshe, for which there is some allusion in the text" – concerning this group there is no dispute;

b. the more common type – "The laws derived through one of the hermeneutical laws, and concerning these there is dispute" (ibid.) – in other words, "laws which the Sages derived through their own logic, using one of the methods by means of which the Torah is to be interpreted, and [in these instances] it seems to Chazal that their understanding of the text is its proper interpretation" (Hil. Mamrim 1:2).

While the laws belonging to the first type are absolute, those belonging to the second type are subject to change in accordance with the decision of the High Court, the Beit Din Ha-gadol: "If the Beit Din Hagadol derives, through one of the hermeneutical laws, that which they believe to be the law, and they rule accordingly, and later on there arises a different court, which views the matter in a different light that contradicts the ruling, then that court may go against the previous opinion and rule in accordance with what it believes to be correct" (Hilkhot Mamrim 2:1).

How is it possible to know whether a law derived through midrash halakha belongs to the first group or to the second? The Rambam answers that if the halakha is subject to dispute, then clearly it must belong to the second group. However, it would seem that the question remains unresolved in an instance where there is no recorded dispute concerning a particular law. The Rambam addresses this question in the introduction to his Sefer Ha-mitzvot (shoresh 2), and at greater length in a responsum (#355), where he asserts that, in principle, all of Chazal's teachings belong to the second group (which he refers to as "divrei sofrim" – the teachings of the scribes), unless Chazal state explicitly that a particular halakha belongs to the first group (which he refers to as "din Torah"): "There is no matter that is arrived at through hekesh, or through kal va-chomer, or through gezera shava, or through any of the thirteen hermeneutical laws for interpretation of the Torah, that is considered din Torah unless Chazal state explicitly that it is from the Torah." He notes there that the first type includes only "something concerning which Chazal state that it is from the Torah, and there are only three or four such instances."

What the Dor Revi'i is arguing, then, is that if the halakha concerning "an eye for an eye" belongs to the second category, then it is certainly possible that in some generation a court ruled in accordance with the plain meaning of the text – like any other law belonging to this category, which is subject to the ruling of the judges in every generation. Indeed, the Rambam's words show clearly that he believed that this law belonged to the first type, but this raises the question of what his source was for this assertion, for nowhere do we find that Chazal regard this law as possessing any special status.

Hence, the Dor Revi'i raises the possibility that at some stage the law of "an eye for an eye" was indeed practiced in accordance with the literal interpretation, and only later did Chazal rule that the reference is to monetary restitution. If we accept this possibility, then there is room to ask why, at some stage, Chazal moved away from the plain meaning of the text and interpreted the verses in such a way that the punishment imposed is monetary rather than physical.

We may approach the answer to this question by examining an important principle laid down by Rav Kook. We shall explore Rav Kook’s idea next week.

Translated by Kaeren Fish