Does Halakha Uproot Scripture?

Prof. Rabbi Marty Lockshin

Abstract: One of the most surprising statements attributed to the rabbis is “הלכה עוקרת מקרא,” literally, “halakha uproots Scripture.” Some interpreters saw in this statement a description of the far-reaching power of rabbinic exegesis and halakha to overturn the Torah itself, while other authorities tried to minimize the phrase’s radical sense. By examining the original version of the statement and then tracing the history of its interpretation, it is possible to see how a relatively standard idea about rabbinic interpretation was later understood by some thinkers as describing the authority of midrash to undermine the plain meaning of Scripture.

The expression “halakha uproots Scripture” (הלכה עוקרת מקרא) first appears in a teaching attributed to Rabbi Yishmael that shows up several times in rabbinic literature. A passage in Bavli Sotah 16a is probably the best known version of this teaching:

דא”ר יוחנן משום ר’ ישמעאל, בשלשה מקומות הלכה עוקרת מקרא:

(1) התורה אמרה בעפר, והלכה בכל דבר;

(2) התורה אמרה בתער, והלכה בכל דבר;

(3) התורה אמרה ספר, והלכה בכל דבר.

For Rabbi Yohanan taught in the name of Rabbi Yishmael: Halakha uproots Scripture in three instances:

(1) The Torah said (Lev 17:13): “[And if any Israelite or any stranger who resides among them hunts down an animal or a bird that may be eaten, he shall pour out its blood and cover it] with earth.”  But halakha [teaches that the slaughtered animal’s blood may be covered] with anything;

(2) The Torah said (Num 6:5): “[Throughout the term of his vow as Nazirite, no] razor [shall touch his head].”  But halakha [teaches that for a Nazirite, shaving is forbidden] using any item;

(3) The Torah said [that a man who divorces his wife hands her] (Deut 24:1): “a book [of divorcement].”   But halakha [teaches that the divorcement document may be written] on any material [not just a book].

A version of Rabbi Yishmael’s teaching appears also in the Yerushalmi, with some variations.1 The most significant change is that the example of “razor” is replaced with the following:

Yerushalmi Qiddushin (1:1; 59d).2

התורה אמרה במרצע והלכה אמרה אפילו בסול אפילו בקוץ אפילו בזכוכית
The Torah said [that the ear of a Hebrew slave who wishes to remain a slave even after six years of servitude should be pierced] “with an awl.” But halakha teaches [that it may be pierced] even with a wooden prick, a thorn, or [a piece of] glass.

What did Rabbi Yishmael
Originally Mean?

In all of its variants, this teaching of Rabbi Yishmael appears to recognize a tension between the rabbinic rulings he quotes and what the Torah itself says. He claims that at times, the rabbis even “uprooted” the meaning of Scripture.3

This teaching presents several interrelated problems:

  • Are there really only three examples of halakhic interpretations that do not square well with the plain meaning of the biblical text?
  • Even if this is only a representative list, are these the strongest examples R. Yishmael could find?
  • Do these examples even demonstrate a tension between the text of the Torah and its rabbinic interpretation?

These examples seem to simply show how the rabbis extrapolate and widely apply a biblical term, not that rabbinic halakha uproots the Bible.  In other words, the explicit words of the Torah text still stand, though they are extended.  For example, when the Torah says that a Nazirite is supposed to let his or her hair grow long (גדל פרע שער ראשו; “the hair of his head being left to grow untrimmed” [Num 6:5]), it makes sense to say that the Torah prohibits shaving with other implements, yet mentions a razor simply as an example of the most common or effective way of shaving.

דיבר הכתוב בהווה—“The Biblical Text Described the Most Common Occurrence,”
This observation suggests that Rabbi Yishmael’s list might be more accurately described using a different, though more common rabbinic exegetical principle: דיבר הכתוב בהווה—“the biblical text described the most common occurrence.”4 This principle suggests that although the Torah uses specific terms and common cases in its legislation, readers are expected to realize that the law applies even in less common circumstances.

Notably, a lengthy list of such cases in the Mekhilta5 – a Halakhic Midrash associated with the school of Rabbi Yishmael – contains no overlap with the shorter list of examples in which “halakha uproots scripture.”6 This further begs the question: What is so special about this list?

Rashi’s Approach
Rashi notes the problem of calling the b. Sotah examples “uprooting” since, as we pointed out, they only seem to be expanding the laws. 7  Rashi also points out that in other Talmudic passages we actually find biblical prooftexts as support for these halakhot which allegedly have uprooted scripture!8

Once again, in what sense can we then say that the rabbis uprooted the biblical text when they merely seem to be legitimately interpreting it?

Rashi concludes that Rabbi Yishmael did not accept those textual proofs as being based on exegesis of the verse (לרבי ישמעאל לא משמע ליה קראי), even if those proofs arrived at the same halakhic conclusion.9 Instead, Rabbi Yishmael was simply teaching that, despite what each of these three verses said, an oral tradition (halakha le-Moshe mi-Sinai) without a textual basis tells us to expand the meaning of the term.  This explanation is difficult since the five examples10 of dibber ha-katuv ba-hoveh from Mekhilta noted above also expand the meaning of a term without any argument from a text.11

Rabbi Yishmael’s Approach:
David Henshke’s Suggestion

In an insightful article, the Israeli scholar David Henshke discussed what Rabbi Yishmael may have meant by “uprooting,”12 noting that rabbinic literature contains four different sayings of Rabbi Yishmael, each with a list of three items that do not conform to exegetical expectations.   In addition to our saying, these are:

  • Rabbi Yishmael taught that in three instances, the word אם in the Torah should not be interpreted as “if.”13
  • In three instances, he thought it legitimate to “interpret the Torah in an allegorical manner.”14
  • And in three instances, Rabbi Yishmael interpreted the particle את as marking a reflexive.15

Henshke argued that just as in those cases, the purpose of Rabbi Yishmael’s teaching about instances where “the halakha uproots Scripture” was to point out three exceptions to an expected pattern.16If this indeed is the case, what makes these examples exceptional?

Henshke suggested that in each of the instances of “uprooting,” Rabbi Yishmael was voicing his disagreement with the view of a contemporary rabbi (or rabbis) who advocated a more limited expansion of the specific biblical term under discussion.  For example, some rabbis argued that while blood of a slaughtered animal or bird need not be covered specifically with earth (as the Torah wrote), still “a medium in which plants can grow can be used for covering [the blood], but one in which plants cannot grow may not be used for covering.”17  Arguably, such an interpretation stays closer to the meaning of the biblical word “earth,” while Rabbi Yishmael’s assertion that the blood may be covered בכל דבר—“with anything,” does not.  In order to help us remember which side of the debate he was on, Rabbi Yishmael summarized his position by collecting three instances where he advocated expanding the meaning of a biblical term more than his colleagues.

Some Problem’s with Henshke’s Approach
Henshke realized that his explanation was not completely satisfying.  It required saying that when the Sifrei and the Yerushalmi quoted Rabbi Yishmael they were not accurately presenting his main point, namely that the biblical terms should be understood in their broadest sense.18  Still I have not seen a better explanation than Henshke’s of what Rabbi Yishmael’s rule actually means.

Regardless of how we understand R. Yishmael’s list of the halakha “uprooting” scripture, it seems fairly clear that the statement does not teach us anything about his view of the tension between the plain meaning of the biblical text and halakha.19

How Did Later Rabbis use
Rabbi Yishmael’s Comment?

As mentioned above, Rashi grappled with the meaning of the phrase, “halakha uproots Scripture.”  He noted that other examples of rabbinic halakhic texts that apparently change the meaning of a biblical verse were based on ריבויין, an exegetical methodology that allows expansion of a term.  For Rashi, the classical rabbis were exegetes who applied the appropriate exegetical tools to the text in order to arrive at the meaning of the text.  Midrash then does not uproot; it uncovers meaning that was there all along.20

Meiri’s Expansion of R. Yishmael’s Statement
Be that as it may, the phrase “halakha uproots Scripture” took on a new life among later medieval rabbis.  Despite the fact that Rabbi Yishmael specifically limits his list to three such instances, Rabbi Menahem ha-Meiri (1249-1315) writes in his commentary to Sotah21:

הרבה מקומות מצינו שהלכה עוקבת את המקרא ר”ל שבאה עליו כמו עקיפין ותואנות להזיז את המקרא מהבנתו ולהעמידו בהבנה אחרת מהם בעקירה לגמרי ומהם בתוספת
We have found many cases where halakha gets around the biblical text, meaning that halakha approaches the text in a roundabout manner and with rationalizations to dislodge the text from its meaning and establish a new meaning for it, sometimes completely uprooting [the text from its meaning] and sometimes [simply] adding.22

In short, Meiri uses Rabbi Yishmael’s phrase, which originally was applied only to three texts, to describe the ongoing tension between many rabbinic interpretations of the Bible and Scripture itself.23

Rashbam’s Expansion: The Supremacy of Halakha
Meiri was not the first to adopt an expansive interpretation of R. Yishmael’s teaching.  Rashbam begins his commentary to the Torah portion Mishpatim by highlighting the gap between the peshat explanations that he offers and the more standard halakhic explanations offered by his grandfather, Rashi.  He uses the phrase “halakha uproots Scripture”24 to explain that gap, thus applying it much more widely than the three cases of Rabbi Yishmael.  For Rashbam the fact that halakha can and often does uproot Scripture proves the supremacy of halakha.

In his comment on Lev. 7:17-18, Rashbam used a variant of this phrase to describe a technical rabbinic explanation of the verse.

וְהַנּוֹתָר, מִבְּשַׂר הַזָּבַח בַּיּוֹם, הַשְּׁלִישִׁי, בָּאֵשׁ, יִשָּׂרֵף. וְאִם הֵאָכֹל יֵאָכֵל מִבְּשַׂר זֶבַח שְׁלָמָיו בַּיּוֹם הַשְּׁלִישִׁי, לֹא יֵרָצֶה הַמַּקְרִיב אֹתוֹ לֹא יֵחָשֵׁב לוֹ, פִּגּוּל יִהְיֶה; וְהַנֶּפֶשׁ הָאֹכֶלֶת מִמֶּנּוּ, עֲו‍ֹנָהּ תִּשָּׂא.
What is then left of the flesh of the sacrifice shall be consumed i fire on the third day. If any of the flesh of his sacrifice of well-being is eaten on the third day, it shall not be acceptable; it shall not count for him who offered it. It is an offensive thing (piggul), and the person who eats of it shall bear his guilt.

In this verse, the Torah forbids eating sacrificial meat on the third day and calls such an action piggul. According to halakha, however, when the Torah outlaws piggul here, it is actually outlawing thinking on the first day when people sacrificed the animal that they would eat its meat on the third day. Rashbam calls this an example of חכמים עקרוהו מפשוטו—the rabbis ignoring the plain meaning of the verse and uprooting it.25

The Vilna Gaon’s Understanding of R. Yishmael’s Teaching
A similar expanded understanding of “halakha uproots Scripture” is found in Rabbi Elijah of Vilna’s (“the Gaon of Vilna”; 1720-1797) Aderet Eliyahu, also at the beginning of the Torah portion Mishpatim and also referencing piggul, among other issues:

הלכה עוקרת את המקרא, וכן  ברובה של פרשה זו, וכן בכמה פרשיות שבתורה, והן מגדולת תורתנו שבע”פ, שהיא הלכה למשה מסיני. . . וכמו שאמרו (מכות, כב, ע”ב) כמה טפשאי אינשי דקיימי מקמי ספר תורה וכו’ ואתו רבנן וכו’ וכן בפיגול ורוב התורה
Halakha uproots Scripture.”  This is the case in many sections of this Torah portion and in a number of other Torah portions.  This [attests to] the greatness of our Oral Torah which is halakha le-Moshe mi-Sinai.   . . . So the rabbis also taught (Makkot 22b), “How foolish are the many people who stand up in honor of a Torah scroll [but not in honor of a Torah scholar, for in the Torah it says that forty lashes are to be administered to one who breaks the law] but then the rabbis came [and said only thirty-nine”].  So also is the case with piggul and with much of the Torah.

As pointed out by Eliyahu Stern,26 the Gaon’s comment here is dependent on Rashbam’s commentary, which had been rediscovered and reached the printing press for the first time in the 18th century.   Rashbam and the Gaon, two prominent halakhists and skilled readers, recognize the wide gap between halakha and the words of the Torah. They use Rabbi Yishmael’s phrase, “halakha uproots Scripture,” to describe that gap.27  These leading authorities thus part ways significantly with both the original meaning of the phrase and with Rashi’s understanding of it.  Rashi, we recall, reserves the phrase for cases when a rabbinic law was based solely on tradition, on halakha leMoshe mi-Sinai.  According to Rashi, rabbinic exegesis can never be considered uprooting the Torah since it is explaining the Torah.  Yet Rashbam and the Gaon broadened the phrase’s use to encompass cases where rabbinic exegesis did not conform to their sense of the simple text.

In summary, Rabbi Yishmael’s basically uncontroversial statement took on a new and more provocative meaning in later generations, providing a convenient hook for expressing new ideas about peshat and derash.  In earlier generations the standard feeling was that rabbis’ exegesis uncovered the meaning of the biblical text.  In later generations some Jewish thinkers, even great Torah scholars, were comfortable saying that rabbinic exegesis often uproots Scripture.

___________________

marty lockshinRabbi Dr. Marty Lockshin is a professor at York University and recently made aliyah. Marty’s primary area of scholarly expertise and writing is the history of Jewish biblical interpretation, particularly the interplay between tradition and innovation.  Most of his research has been centered on those medieval biblical commentators who valued tradition intellectually, who lived traditional lives and who still innovated unabashedly in their understanding of the Bible.  The largest part of his scholarship has been about Samuel ben Meir (12th century Northern France), a traditionalist Bible commentator with an uncanny knack for offering new understandings of biblical texts—his conclusions are often strikingly similar to the “discoveries” of biblical critics seven or eight hundred years later. Professor Lockshin received rabbinical ordination while he studied in Yeshivat Mercaz Harav Kook in Israel.
  1. See David Halivni, Meqorot umasorot seder nashim (Tel Aviv: Devir, 1968), pp. 422-423, for a discussion of how these variants may have developed.
  2.  The teaching appears also in some editions of Sifrei Deuteronomy 122 (p. 180 in Finkelstein’s edition). The part of the teaching about “awl” appears also in Mekhilta Neziqin 2 (p. 253 in the Horovitz-Rabin edition).
  3. The precise wording of the passage varies in manuscripts.  The verb sometimes is not עוקרת but עוקבת or עוקפת or עוקמת.  See Diqduqei Soferim ha-shalem.  The roots ע-ק-מ, ע-ק-ב and ע-ק-פ appear as verbs rarely in rabbinic Hebrew and only one of them appears as a verb in the Bible (ע-ק-ב, meaning there to trick or circumvent).  In his monumental Hebrew dictionary, Eliezer Ben Yehudah notes that the three roots ע-ק-ב, ע-ק-מ and ע-ק-פ are all close in meaning.  They all imply distortion, twisting or bypassing.   The verb ע-ק-מ does appear occasionally in the sense of twisting and misrepresenting the meaning of a biblical text.  See e.g.   עד מתי אתה עוקם עלינו את המקרא (How long will you twist the meaning of the biblical text; Midrash Tehilim {Buber edition}, chapter 12.)  The verb ע-ק-ר also appears in some Talmudic passages in the context of a rabbinic explanation that deviates significantly from the plain meaning of the biblical text.  See e.g.   דלמא כיון דאיעקר איעקר (Perhaps since the text has already been removed from the context, there is no need to further consider the context; b. Yevamot 11b).  See also note 22 below.
  4. Azzan Yadin prefers the translation “HA-KATUV spoke of the case under discussion.”  See his Scripture as Logos: Rabbi Ishmael and the Origins of Midrash (Philadelphia: University of Pennsylvania Press, 2004), pp. 148-149.
  5.  Kaspa 20 (pp. 320-321 in ed. Horovitz-Rabin).
  6. In that list in the Mekhilta, דיבר הכתוב בהווה applies to the following cases:

    1. The Torah says not to eat “Meat torn in the field” (בשר בשדה טרפה; Exodus 22:30) but the rabbis apply the prohibition to meat torn anywhere, not just in the field.

    2. The Torah says that a woman who was raped and could not summon help is exonerated if she was “found in the open” (בשדה מצאה; Deut 22:27). But the rabbis explain that she is exonerated if she was raped in a house, too (or presumably anywhere else).

    3. The Torah refers to a man who is impure because of a “nocturnal emission” (מקרה לילה; Deut 23:11). But the rabbis say that the verse applies whether the emission took place during the day or at night.

    4. The Torah says that a man is allowed to leave the battle front if he had “planted a vineyard but had never harvested it” (נטע כרם ולא חללו; Deut 20:6). The rabbis say that the verse applies to any tree he had planted.

    5. The Torah prohibited boiling “a kid in its mother’s milk” (גדי בחלב אמו; Exod 23:19) but the rabbis said that the verse applies to all other animals as well (שאר כל בהמה).

  7. b. Sotah 16a; s. v. והתורה אמרה.
  8.  For example, in b. Hullin 88a-b proof is given that the mitzvah of covering blood may be done with items other than dirt, despite the fact that the Torah specifies dirt:ואין לי אלא עפר, מנין לרבות זבל הדק, וחול הדק, ושחיקת אבנים, ושחיקת חרסית, ונעורת פשתן דקה ונסורת של חרשין דקה, וסיד, וחרסית לבנה ומגופה שכתשן, ת”ל: וכסהו.
  9. ואף על גב דבכולהו קראי דרשי’ בשחיטת חולין (דף פח:) ובגיטין (דף כא:) ובנזיר (דף לט:) לר’ ישמעאל לא משמע ליה קראי . . . אלא אהלכה למשה מסיני סמכינן וקראי אסמכתא בעלמא הוא הלכך שאר מדרשים ריבויין דכל התורה כולה לא חשיב להו ר’ ישמעאל כהלכה עוקבת מקרא אלא הני תלת.  (Rashi there, s.v. והלכה בכל דבר)
  10.  To be more precise, perhaps there are only four “prooftext-less” examples in Mekhilta, since some textual support is provided for the first example:

    אין לי אלא בשדה, בבית מנין, תלמוד לומר נבלה וטרפה, הקיש טרפה לנבלה, מה נבלה לא חלק בה, בין בבית בין בשדה, אף טרפה לא נחלוק בה בין בבית בין בשדה

  11.  Another sign that Rashi struggled with this text is that he uncharacteristically suggested that the version of this teaching in the Yerushalmi might be more accurate than the version in the Bavli.  
  12. “Two Subjects Typifying the Tannaitic Halakhic Midrash,” {Heb.} Tarbiz 65 (1996), 417-438.
  13. Mekhilta Ba-hodesh 11 (Horovitz-Rabin, p. 243).
  14. Mekhilta Neziqin 6 (Horovitz-Rabin, p. 270).
  15. Sifrei Numbers 32 (Horovitz edition, pp. 38-39).  For example, interpreting the word אותו in the phrase יביא אותו  (Num 6:13) as meaning “he will bring himself.”
  16.  Azzan Yadin also argues in Scripture as Logos: Rabbi Yishmael and the Origins of Midrash, pp. 142-144, that “the significant issue is that they are exceptions to a rule, and in this case the rule is that halakha—extra-Scriptural tradition—does not bypass Scripture.” He does not, however, explain how these three examples “bypass Scripture.”
  17. Mishnah Hullin 6:6.  See also the continuation of the passage in b. Hullin 88a-b, quoted above in note 8.  There we see that the Talmud is willing to expand the application of the word עפר considerably, but not indefinitely:

    יכול שאני מרבה אף זבל הגס, וחול הגס, ושחיקת כלי מתכות, ולבנה ומגופה שלא כתשן, וקמח וסובין ומורסן? ת”ל: בעפר. ומה ראית לרבות את אלו ולהוציא את אלו? אחר שריבה הכתוב ומיעט, מרבה אני את אלו – שהן מין עפר, ומוציא אני את אלו שאין מין עפר,

  18. In the Jerusalem Talmud, the final comment is not בכל דבר—with any item, but with a limited list of items.  Henshke also, like Rashi, prefers the three examples cited in the Yerushalmi.  Yet his reconstruction of what Rabbi Yishmael originally said uses the wording of the Babylonian Talmud (בכל דבר—with any item).
  19. Or we might say that if Rabbi Yishmael did indeed grapple with that tension, it was not in this statement.  As David Weiss Halivni puts it: “This statement is not relevant to peshat and derash.  It is not a case of reading in, of changing the plain meaning.” See his Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (Oxford: Oxford University Press, 1991), pp. 198-199, note 63.
  20. See the discussion of Rashi’s position and a comparison with other rabbinic positions in my Hebrew article, “Some Approaches to the Tension Between Peshat and Midrash Halakhah,” Iyyunei miqra ufarshanut 8 (2008), 33-46.
  21. Commentary to b. Sotah 16a, p. 37 in the edition edited by Avraham Lis (Jerusalem, 1967).
  22. Note that Meiri uses forms of the roots ע-ק-ב, ע-ק-פ and ע-ק-ר in his explanation of this phrase.
  23.  Even though Meiri felt in his own assessment that there are many examples in rabbinic literature of halakha uprooting Scripture, he ultimately offered the same explanation as Rashi for Rabbi Yishmael’s three cases: ואף על פי שבכל אלו מן המקראות נדרשו כן כמו שהתבאר בכל אחת במקומה מ”מ עיקר הסמך על הלכת סיני וקראי אסמכתא בעלמא נינהו.
  24.  Different editions of Rashbam’s commentary use different wording. See the notes in my Peirush ha-Rashbam al ha-Torah, p. 251, note 5, where I argue that the wording must be הלכה עוקרת מקרא.  So also in Miqraot Gedolot ha-keter.  See also note 3 on p. 113 in David Rosin’s edition of Rashbam’s Torah commentary (Breslau, 1882).
  25.  See also Samuel David Luzzatto’s commentary to the same verse where he offered a sweeping expansion of Rashbam’s words (an expansion that I doubt Rashbam would have agreed with), claiming that the classical rabbis often disguised new legislation of theirs as biblical exegesis.  See the discussion in my article mentioned in note 20.
  26. The Genius: Elijah of Vilna and the Making of Modern Judaism (Philadelphia: University of Pennsylvania Press), pp. 77-82.
  27.  Avia Hacohen argues that the Gaon’s position was that the classical rabbis were acting as legislators, not exegetes (the same position that Luzzatto had; see note 24).    See his “In the Wake of the Vilna Gaon’s Commentary Concerning the Hebrew Maidservant” {Heb.}, in the Rabbi Mordechai Breuer Festschrift (Jerusalem, 1992), 77-90.  David Henshke takes issue with that approach in his “The Method of the Rabbis When Studying the Plain Meaning of Scripture: More on the Issue of the Hebrew Maidservant” {Heb.}, Megadim 20 (1993), 21-34.
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