“Does a sharp knife cut verses?” This pungent question, asked by Rava in Bava Batra 111b, is a way of asking how much freedom the rabbis have to interpret the Torah.
The role of the Torah in the legal thinking of the Talmud is a fascinating one, which has intrigued me since the beginning of my Daf Yomi reading.
In general, one might say that the Talmud exists because to put it in traditional terms, the Oral Law was given to explain and supplement the Written Law.
Biblical laws tend to be terse and generalized, and they seldom cover all the contingencies that might arise in life.
The Torah prohibits labor on Shabbat; but what exactly constitutes labor?
The Torah prohibits Jews from exploiting one another in commercial transactions; but how do you measure exploitation?
The Mishna, the digest of the Oral Law, is needed to fill these gaps. In turn, the Gemara is needed to resolve ambiguities in the Mishna.
At the same time, however, the rabbis are always at pains to show that what might seem like new laws, which go beyond and sometimes even contradict the laws of the Torah, are in fact in harmony with the Torah.
To do this, they are compelled to read against the grain of the biblical text, in ways that strike the uninitiated reader as highly counterintuitive.
They will, for instance, make important deductions based on the presence of a prefix or suffix of a single letter; or they will look for other uses of a given word elsewhere in the Torah, and draw conclusions based on the context of those seemingly unrelated usages.
The rabbis’ hermeneutics are far from lawless—they have a rigorous method for making deductions from the text—but they often give the impression of doing whatever needs to be done to make the Torah mean what they want it to mean.
The rabbis’ hermeneutics are far from lawless—they have a rigorous method for making deductions from the text—but they often give the impression of doing whatever needs to be done to make the Torah mean what they want it to mean.
Last week’s Daf Yomi reading, in Chapter Eight of Tractate Bava Batra, was largely devoted to this kind of biblical interpretation.
The subject of the chapter is the laws of inheritance—a topic of central importance in a patriarchal society, where most wealth was held in the form of land or livestock.
The basic halakha about inheritance is laid down in Babmidbar 27, where we read about a man named Zelophehad, who died leaving no sons, only daughters.
The state of the law at that time was apparently that only male children had the right to inherit property. But the daughters of Zelophehad went to Moshe to protest, demanding that they receive their father’s estate.
Significantly, this claim was made not in terms of fairness, and certainly not of gender equality, but in terms of the preservation of the family name: “Why should the name of our father be done away from among his family because he had no son?” the daughters demanded.
Moshe took this question to the L-rd, who told him that the women were right. From them on, daughters would have the right to inherit property under Jewish law—if, and only if, they had no living brothers.
If a man had sons, they would divide his property between them, with a double share going to the first-born. The Torah goes on to lay down the order of inheritance: first sons, then daughters, then brothers, then paternal uncles. If none of these categories of relatives are living, then “ye shall give his inheritance unto his kinsman that is next to him of his family.”
This seems very clear;
but turn to the Mishna in Bava Batra 108a, and we find that at some point between the writing of the Torah and the writing of the Mishna, the law has changed in a crucial way.
According to the Mishna, “these both inherit and bequeath: a father with regard to his sons and sons with regard to their father.”
In other words, not only is a son the heir to his father’s property, but a father is heir to his son’s property, provided that the son in question has no children of his own. Indeed, the father inherits before the deceased’s own brothers. Yet the Torah knows nothing of this rule because it does not list fathers in the order of inheritance. How is this discrepancy to be reconciled?
Here is where the “sharp knife” of rabbinic interpretation comes into play.
Rather than admitting that the Oral Law contradicts the Written Law, the rabbis of the Gemara set out to prove that the rule about fathers is actually implicit in the Torah.
How so?
They assert that the term “his kinsman,” which in the Torah seems like a catchall for any male relative, is actually meant to refer to the father of the deceased.
But in the verse from Bamidbar, “his kinsman” comes last in the order of inheritance; how, then, do we explain that the father actually precedes the brothers of the deceased?
Here the rabbis focus on the word “next to him,” which suggest that the nearer a relation the heir is to the deceased, the earlier he comes in the order of inheritance. Because a father is a closer relative than a brother, he inherits before them.
But how do we know that this is where a father stands in the order of proximity?
“And what did you see,” the Gemara asks, “to include the son as a closer relative than the father and to exclude the brother?”
The reason has to do with relationships defined in other areas of Jewish law: for instance, a father can designate a Hebrew slave as a bride for his son, and a son can redeem a field that his father had consecrated. These legal rights are taken to demonstrate that a father and son stand in closer proximity than do two brothers, who cannot designate wives or redeem fields for one another.
The Gemara raises an objection, however, by bringing up the matter of levirate marriage. As we saw extensively in Tractate Yevamot, if a married man dies without children, his brother must marry his wife in order to produce an heir—or else perform the ceremony of chalitzah to cancel this obligation.
This seems to suggest that brothers stand in a very close legal relationship to one another, even closer, perhaps, than fathers and sons.
But the rabbis reject this idea, pointing out that the fraternal obligation of levirate marriage exists only in a case where there is no son; if the deceased has a son, the brother’s obligation is annulled. This goes to prove that the father-son relationship precedes the fraternal one in order of importance.
A little further on,
The Gemara asks how we know that the Torah’s term “kinsman” really is meant to apply to a father?
After all, the Hebrew term in question can refer to relatives of either sex; how do we know that, in this case, it doesn’t mean “mother” instead?
If so, then a man’s mother would inherit his property, rather than his father.
But this cannot be, the rabbis reason, because the verse says, “his kinsman who is next to him of his family,” and “it is the father’s family that is called one’s family, while one’s mother’s family is not called one’s family.”
Paternal relatives, that is, are legally more significant than maternal relatives.
At the same time, however, Chazal say that it is maternal relatives who do more to shape a person’s character:
“Most sons resemble the mother’s brothers.” Clearly, the niceties of legal relationships have little to do with the actual strength of the bonds between family members.
