Does Halakha Uproot 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:

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

התורה אמרה בעפר, והלכה בכל דבר;

 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;

התורה אמרה בתער, והלכה בכל דבר;

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;

התורה אמרה ספר, והלכה בכל דבר.

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.

“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 Mekhilta^[5]– 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 examples^[10] 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.^[16] If 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 Sotah: ^[21]

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 18^th 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.