Ch. 3 (V) Creative Midrash (Midrash Yotzer), Sustaining Midrash (Midrash Mekayem), and Scriptural Support (Asmakhta)

4. The difference between Rabbi Yishmael and Rabbi Akiva

The difference between the two approaches finds expression in the fundamental difference regarding midrashic methodology between the two main schools in the period of the Tannaim: the school of Rabbi Yishmael and the school of Rabbi Akiva.[1]

          The school of Rabbi Yishmael advocated using the principles of reason to analyze the text of the Torah. As discussed in the previous chapter (section 7), it was Rabbi Yishmael who expanded the seven fundamental hermeneutical rules of Hillel the Elder, and turned them into thirteen rules that are based on reason and logic. Each of the thirteen rules has a logical basis,[2] and thus judicious use of the rules will lead to a logical analysis of the plain sense of the Scriptural text.

          Rabbi Yishmael's underlying premise, as he himself formulated it, is: "The Torah speaks in human language" (Sifrei Bamidbar no. 112, p. 121, and elsewhere). It follows from this assumption that verses of the Torah should be analyzed in the same way that human language is analyzed; logical principles that are used to analyze human speech are also valid for analysis of Scripture. The conclusion that emerges from this view is that the Midrash can create laws from the verses themselves, without needing a tradition or a logical argument. The school of Rabbi Yishmael did in fact allow much room for creative midrashim of this sort.

We will demonstrate this approach with respect to three of the hermeneutical rules by way of which the Torah is expounded:[3]

1. Kal va-chomer (a minori ad maius – an argument that denotes an inference from smaller to bigger or vice versa). This rule, which appears many times in Scripture (as was noted in the previous chapter, section 7), makes it possible to draw conclusions that stem directly from the text, even though they were not explicitly stated in it. The logic behind this rule is simple: When there are two things, one more severe than the other, and we find a particular leniency in the less severe of the two, then it certainly exists in the more severe of the two as well.[4] For example, according to the Midrash, the Torah section dealing with bailees (Shemot 22:6-14) lists three main types of bailees: the unpaid bailee, the paid bailee, and the borrower.[5] The unpaid bailee is liable only if he was negligent in safeguarding the object. A paid bailee is also liable for theft or loss of the object: "But if it be stolen from him, he shall make restitution to its owner" (v. 11), though he is exempt in a case of loss in circumstances beyond his control: "If it be torn to pieces, let him bring it for witness; he shall not make good that which was torn" (v. 12). A borrower is liable even in a case of loss in circumstances beyond his control: "And if a man borrow something from his neighbor, and it be hurt, or die, its owner not being with it, he shall surely make restitution" (v. 13). The Torah does not explicitly state that the borrower is liable for theft and loss, but this is inferred by way of a kal va-chomer: "If a paid bailee, who is not responsible for injury and death, is nevertheless liable for theft and loss; then a borrower, who is liable for the former, is surely liable for the latter too! And this is a kal va-chomer argument which cannot be refuted" (Bava Metzia 95a). That is to say: There is no need for a tradition to say that a borrower is liable for theft or loss; this conclusion follows from the simple logic of a kal va-chomer argument. A kal va-chomer argument can serve as an excellent tool for extracting laws from Scripture.[6]

2. The specification implied in the generalization and excepted from it for pedagogic purposes elucidates the generalization as well as the specification. One example of this hermeneutical rule relates to the seeming contradiction between different verses regarding the time for eating matza on Pesach. Most of the Scriptural passages dealing with the festival indicate that matza should be eaten for seven days. For example: "Seven days shall you eat unleavened bread" (Shemot 12:15). However, one verse reads: "Six days you shall eat unleavened bread; and on the seventh day shall be a solemn assembly to the Lord your God" (Devarim 16:8), implying that there is no mitzva to eat matza on the seventh day. Regarding this, a baraita states: "Just as [on] the seventh day [the eating of unleavened bread] is voluntary, so [on] the six days it is voluntary. What is the reason? Because it is a specification implied in the generalization and excepted from it for pedagogic purposes, and so it elucidates the generalization as well as the specification" (Pesachim 120a). Once it becomes clear from the verse in Devarim that the seventh day is excluded from the general law, and the eating of matza on that day is voluntary, perforce we must understand in that manner the other verses that include the seventh day with the other six days. Since we can no longer say that the eating of matza on the seventh day is an obligation, for that would contradict the verse in Devarim, we must conclude that eating matza is voluntary on all seven days. Thus, following simple logic, that which is excluded from a general law in one place was not excluded to teach only about itself, but rather it necessarily influences our understanding of the entire general law in other places as well. This conclusion stems, then, from a logical analysis of the plain meaning of the verses, and here too there is no need for a tradition or a logical argument in order to reach the conclusion that the Torah does not obligate eating matza for seven days.[7]

3. Deduction from context. This rule is based on inferring the meaning of a word or expression, which has more than one possible meaning, from the context. Thus, for example, it is stated in Parashat Tazria: "And if a man's hair be fallen off his head, he is bald; he is pure" (Vayikra 13:40). One might have understood from the words "he is pure" that when a person is bald, he is entirely purified from all types of impurity, but the baraita teaches us that this is not so: "Can it be that he is clean of all impurity? Therefore the verse states: 'But if there be in the bald head, or the bald forehead, a reddish-white plague' (v. 42). The matter is learned from the context: he is not purified of all impurity, but only from the impurity of netakim (scaly eruptions of the scalp)" (Baraita de-Rabbi Yishmael at the beginning of Torat Kohanim 2d). This method of interpretation, understanding a word based on its context, is well known. In this case as well, the conclusion stems from a simple analysis of Scripture.

The approach of the school of Rabbi Akiva is completely different. In the previous chapter (section 3), we mentioned the famous midrashic portrayal of  Moshe's descent to Rabbi Akiva's beit midrash, which picturesquely describes Rabbi Akiva’s methodology: he would "expound upon each tittle heaps and heaps of laws."  It is clearly impossible to analyze in a logical manner the meaning of the "coronets" affixed to the letters in a Torah scroll and infer from them "heaps and heaps of laws." However, we do not find anywhere that Rabbi Akiva actually derived a law from such a coronet, and it seems that the intention here is to describe his way of deriving laws from each word or letter that appears superfluous,[8] as we shall see below. In a general sense, his expositions do not seem to stem from the plain meaning of the verses.

This emerges, among other things, from the following story:

Nechemya Imsoni ministered to Rabbi Akiva for twenty-two years, and he taught him that the words et and gam are terms of inclusion and that the words akh and rak are terms of exclusion. He said to him: What is the meaning of that which is written: "You shall fear [et] the Lord your God" (Devarim 10:20). He said to him: Him and His Torah. (Yerushalmi Berakhot 9:5, 14b)[9]

According to Rabbi Akiva, wherever the words et or gam appear, they must come to add something[10] to what is stated in the verse itself,[11] for it would have been possible to write the verse even without these words. The Yerushalmi speaks of the difficulty in a verse which would seem to have left no room to add anything to it – for whom should one fear other than God? – but ultimately, Rabbi Akiva decides that it is possible to include fear of the Torah. It is clearly impossible to know from the verse itself what should be included from these words, and so this exposition is not only a literary analysis of the verse.

From here we may conclude that Rabbi Akiva broadly developed the “sustaining midrash” approach. In many cases, it is strikingly apparent that Rabbi Akiva’s halakhic conclusion does not follow from an analysis of the text itself, for the hermeneutical tools that he uses are not necessarily logical tools for analyzing words and sentences. It must, therefore, be assumed that Rabbi Akiva seeks to establish a law that he already knew by way of a tradition or a logical argument – and he does this by connecting it to a verse, as a symbol and allusion but not as the exclusive source of the law.  However, there may also be cases in which Rabbi Akiva finds a hint in Scripture – such as the word et – where there is room to consider an additional law that expands upon what is stated explicitly in the verse, even if he does not know what that law is, and derivation of the law stems from a logical argument that comes into being only after it is understood from the verse that there is room to expand.

As is only natural, many disputes have arisen between these different approaches of Rabbi Yishmael and Rabbi Akiva, on several levels:

a. Sometimes, the different methods of midrashic exposition have led to disputes regarding Halakha. For example, the Torah states: "And the daughter of any priest, if she profane herself by playing the harlot, she profanes her father; she shall be burnt with fire" (Vayikra 21:9). The Tannaim disagree whether this punishment applies only to a woman who was betrothed, or even to one who was married:

Rabbi Akiva said: [A priest's daughter], whether she is betrothed or she is married, is punished with fire. I might think that this applies even to an unmarried woman: but her father is mentioned in this passage, and her father is also mentioned elsewhere (Devarim 22:21);[12] just as elsewhere the reference is to harlotry by one who is bound to a husband, so here too. Rabbi Yishmael said to him: If so, just as the second passage refers to a young woman [na'ara] who is betrothed, so this verse [regarding a priest's daughter] should be taken to refer to a young woman who is betrothed[13] [but if she is married, her punishment should be different]. Rabbi Akiva said to him: Yishmael, my brother, I expound "the daughter" "and the daughter"! He said to him: Because you expound "the daughter" "and the daughter," we should take her out to be punished with fire? (Sanhedrin 51b)

Rabbi Akiva maintains that since the letter vav in the word u-vat ("and the daughter") is superfluous, we may derive from it that the verse refers not only to a betrothed woman, but also to a married woman. Rabbi Yishmael responds with irony: "Because you expound 'the daughter' 'and the daughter,' we should take her out to be punished with fire?"[14] Of course, once again we are dealing with a fundamental dispute:  According to Rabbi Akiva, there was presumably reason to think that the law regarding the daughter of a priest who played the harlot does not distinguish between a betrothed woman and a married one, and he attached this rule to the superfluous letter vav. Rabbi Yishmael, whose midrashic methodology involves analysis of the verses and whose fundamental approach is that "the Torah speaks in human language," was not prepared to accept a midrashic exposition that is not based on the plain sense of the text, and thus he rejected the approach of Rabbi Akiva.[15]

(Translated by David Strauss)