Tza’ar Ba’alei Chaim: A Case Study in Halakha and Values by Rabbi Dov Linzer

Introduction

There has been much written in recent years on the topic of halakha and values, dealing with the questions of how these two spheres relate. Broadly speaking, three questions arise: (1) Are Torah values, as distinct from halakha, obligatory and, if so, what is the nature of such an obligation?; (2) Do and should Torah values play a role in the interpretation and application of halakha? and (3) Do and should independent values play a role, and how can we distinguish between our own values and true Torah values?

In this article, I make no attempt to do a full analysis of any one the above issues, and I will not address the third issue – that of independent ethics – at all. I will, rather, use the case of tza’ar ba’alei chaim (animal suffering) to illustrate what I believe to be a number of important points relating to the first of the two issues, namely Torah values as distinct from halakha, and the interplay of those values with halakha.

I will look at the following issues of halakha and values in relationship to tza’ar ba’alei chaim [hereafter tbc]:

1. The question of whether tbc is Biblical in nature, and the relationship between the principle of tbc and the interpretation of halakha
2. The weight that tbc – a Torah value – is given within the halakhic system
3. How the gap between the halakha of tbc and the value of tbc is dealt with in various poskim – how is the value transformed, and how is the obligation of the value articulated.
4. How the value of tbc can be seen to re-exert its influence on the interpretation of halakha in the contemporary period.

1. Is Tza’ar Ba’alei Chaim Biblical? – Torah values and the Interpretation of Halakha

In the halakhic literature, the principle of tbc is dealt with in reference to the question of the degree of obligation that one has to prevent or not cause the suffering of animals, that is, the scope and weight of tbc as an independent obligation. This is certainly how the principle is dealt with in the brief sugya in Shabbat 128b. However, the primary Talmudic discussion, in Bava Mezia 32a-33a, revolves around the relationship between tbc and the mitzvot of p’rikah(unloading an animal struggling with its burden) and ti’eena, (reloading it afterwards). I quote here the major portion of the sugya, dividing into four sections, to allow for easier analysis:

[A] ‘Unloading [must be done] without pay; reloading, for pay. R. Simeon said: Both without payment.’ What is the reason of the Rabbis? — For should you think it is as R. Simeon: let Scripture state [just the mitzvah of] reloading, and unloading becomes unnecessary; for I would reason: If one is bound to reload, though no suffering of animals nor financial loss is involved, how much more so unloading, seeing that both suffering of animals and financial loss are involved! Then for what purpose is it written? To teach you that unloading must be performed without payment, but reloading only for payment. And what is R. Simeon’s reason? — Because the verses are not explicit [so if the Torah only said one, I would have assumed it meant unloading]…

Rava said: From the arguments of both [the Rabbis and R. Shimon] we may infer that [relieving] the suffering of an animal is Biblical [because both assume that unloading is more of an obvious obligation than reloading it]…On what grounds: Surely we infer it on the grounds of the suffering of animals? — [No.] Perhaps it is because financial loss is involved [in unloading it as opposed to reloading it]…

[B] Now, the proof that [relieving] the suffering of an animal is Biblical is that the second clause [of the Mishna] states:

R. Yosi HaGlili said: If it [the animal] bore more than its proper burden, he [the passer-by] has no obligation towards him [the owner], because it is written, ‘[If thou see the ass of your enemy crouching] under its burden,’ (Ex. 23:5), which means, a burden under which it can stand:

Hence it follows that in the view of the first Tanna he is obligated towards him [to help him]. Why so? Surely because relieving the suffering of an animal is Biblical! — [No] Perhaps they differ as to [the connotation of] ‘under its burden,’ R. Jose maintaining that we interpret ‘under its burden,’ a burden under which it can stand; while the Rabbis hold that we do not interpret ‘under its burden’ [thus.]

[C] It may be proved that relieving the suffering of an animal is not Biblical, because the first clause [of the Mishna] states,

If he [the owner of the animal] went, sat down, and said [to the passerby], ‘Since the obligation rests upon you to unload, unload’: then he [the passer-by] is exempt, because it is said, ‘with him’ (Ex. 23:5).

Now, should you think that [relieving] the suffering of an animal is Biblical, what difference does it make whether the owner joins him [in relieving the animal] or not? — In truth, [relieving] the suffering of an animal is Biblical; for do you think that ‘exempt’ means entirely exempt? Perhaps he is exempt [from doing it] without payment, yet he is bound [to unload] for payment…. yet after all [relieving] the suffering of an animal is Biblical.

[D] Shall we say that the following supports him [Rava, that it is Biblical]? ‘One must busy himself with an animal belonging to a non-Jew just as with one belonging to an Israelite’. Now, if you say that [relieving] the suffering of an animal is Biblical, it is well; for that reason he must busy himself therewith as with one belonging to an Israelite. But if you say that [relieving] the suffering of an animal is not Biblical, why must he busy himself [with the animal of a non-Jew] as with an Israelite’s animal? — There it is on account of enmity…

This sugya concerns itself only with the question of how the concept of tbc impacts on the scope of the mitzvot of p’rikah and ti’eena, and not, at least on the face of it, with tbc as a freestanding obligation. The first application, in [A], is that if tbc is a Torah value, it can serve to determine the order of the two mitzvot in terms of which one is the more obvious obligation, with attendant implications for how the verses are interpreted.

In [B], the Talmud goes further, and seems to state in this second application that if tbc is a Torah value, then we would use it to directly determine the scope of the mitzvah of unloading , applying it even to a case where the animal was loaded with more than its proper burden and the owner brought this situation upon himself, for nevertheless, the animal is still suffering. This theme continues in section [C] and [D], where the scope of the mitzvah – whether it applies to a case of an non-participatory owner or of a non-Jewish owner – is a function of whether the value of tbc is seen to be a Biblical one or not.

If this prima facie reading of the sugya is the correct one – a point which, as we will see, is debated by the Rishonim – then this sugya presents us with a prime example of the use of Biblical values in the interpretation of a mitzvah and the determination of its scope. This conclusion, however, needs to be made more precise. For it seems clear that the question at hand is not whether tbc is a general Torah value, but rather whether it is the underlying value of this particular mitzvah of p’rikah. This can be inferred from the dual facts that (1) the Gemara only discusses how the principle of tbc would impact the mitzvah of p’rikah; there is no intimation that the scope any other mitzvah is at stake and (2) that there is no attempt to adduce a prooftext that tbc is a Torah value, although surely one could have been found (and indeed was found by the Rishonim, see below). The question, then, is whether tbc is the basis for the mitzvah of p’rikah – to which no prooftext is available, and all applications are by necessity local.

Thus, the question of tbc is not whether it is a value, but whether it is the legal principle upon which p’rikah is based or, to use more traditional terms, whether it is the ta’amei hamitzvah of the mitzvah of p’rikah. This sugya then, becomes an illustration not about how general Torah values can influence halakhic interpretation – a more radical claim – but rather about how the principles which undergird a mitzvah can play a role in determining its scope. Now, it would seem to be completely reasonable that in the halakhic enterprise underlying principles would guide halakhic interpretation. However, the prima facie evidence seems otherwise, for both the midrishei halakha and the Gemara, when determining the scope of Biblical mitzvot, tend to do so on the basis of technical hermeneutical principles, without explicit recourse to the underlying principles of the mitzvah. More to the point, this seems to run afoul of the ruling that lo darshinan ta’amah dikra, that we do not use the reason of a mitzvah to determine its scope (Baba Mezia 115a). In fact, this rule does not seem to be consistently applied, and poskim, halakhic decisors, have given a number of factors that might allow for using the underlying reason a mitzvah in determining the mitzvah’s scope:

• The underlying reason is stated explicitly in the verse or is one that was known to the Talmudic Sages by tradition. The problem with using the underlying reason is that it can never be correctly determined. This is not the case when the reason is known.
• The reason may be used lichumra, to be strict. Again, the concern is that we do not know the reason with certainty. This is only a concern if we are using it to be lenient.
• The reason is used to determine a scope that does not contravene the prima facie halakhic implications of the verse, or that is only used to determine the scope of a ruling that is part of the Oral Law, not of a Biblical verse. That is, the legal principle plays a role, but it exists in a dialectic tension with the Written Law and technical hermeneutics, and greater weight has to be given the simpler, or more technical, sense of the verse.
• The underlying reason may be used as long as it does not do undue violence to the simple halakhic meaning of the verse. Thus, given the choice between a more compelling reason that would more radically limit the scope of the verse and a less compelling reason that would less limit the scope of the verse , we would choose the less compelling reason.

The first two of these reasons reflect a concern as to whether we have identified the correct underlying principle. The latter two reflect a necessary dialectic – in terms of maintaining a legal conservatism and fidelity to the text – between the simple halakhic meaning of the verse and the use of technical, hermeneutical rules on the one hand, and the use of the mitzvah’s underlying principles on the other hand. I will refer to the first of these concerns as the confidence concern and the second as the textual fidelity concern.

If we return to our sugya in Bava Mezia we will see that the Rishonim debate the role of tbc in determining the parameters of the mitzvah of p’rikah, and this debate revolves around the questions of whether underlying principles ever play a role in interpreting halakha and, if they do, how much we need to consider the above two concerns – the confidence concern and the textual fidelity concern.

2. Rashi and Tosafot – TBC Does Not Influence the Mitzvah of P’rikah

Let us consider the larger question first – does the underlying principle influence halakhic interpretation? I have been arguing that the prima facie reading of this sugya confirms this, and states that if tbc is the Biblical principle underlying p’rikah, then we will define the scope of p’rikah to include the cases of the donkey loaded with more than the proper burden, a non-participatory owner, and a donkey owned by a non-Jew. Rashi, however, interprets the sugya otherwise:

[If it is unduly burdened] one is obligated to help it – And why would one be obligated to help? If it is because of the mitzvah “You shall surely help” (Ex. 23:5) [the mitzvah of p’rikah], [that is not so, because] the verse states ‘its burden’ – [one is only obligated when it is] a burden that is manageable for it. Rather, [the obligation is] because of tbc.

That is, the obligation of p’rikah does not extend to the case of the unduly burdened donkey, but one is obligated to help out in that case because of the standalone obligation of tbc. Rash repeats this point in the case of the non-Jewish owner – one only need help because of the separate obligation of tbc. Tosafot makes this point explicitly, stating in the case of the improperly burdened donkey:

Granted one is not obligated to help [unload] without compensation, since there is no mitzvah of p’rikah, nevertheless with payment one must help, because of the obligation of tbc.

For Rashi and Tosafot, then, the principle of lo darshinan ta’ama dikra, that we do not use the reason of a mitzvah to determine its scope, holds firm and the value of tbc plays no role in the scope of the mitzvah of p’rikah. The scope of the mitzvah is determined solely by the language of the verse, and the terms used in the verse exclude the unduly burdened donkey (“its burden” – only a burden befitting it), a non-participatory owner (“with him” – only if he helps), and the donkey of a non-Jew (presumably based on “your brother” of Deut 22:4). The only obligation one could have in such cases, then, would be an independent obligation of tbc.

Minchat Chinukh adopts this approach, and employs it in a counter-intuitive way in his discussion regarding the debate around whether Rambam rules that tbc is Biblical or not. Rambam, he says, must rule that tbc is Rabbinic, because he rules that mitzvah of p’rikah applies to a case of an unduly burdened donkey. Now, if tbc were Biblical, he argues, the obligation to help in this case would emerge from the obligation of tbc and not from the mitzvah of p’rikah. If, instead, we find that it is part of the mitzvah of p’rikah itself, this can only be because tbc is Rabbinic, and the larger scope of the mitzvah of p’rikah is derived on the basis of technical hermeneutics.

3. Rabbenu Peretz and Ritvah – TBC Does Influence the Mitzvah of P’rikah, since it is known with certainty by ahalakha li’Moshe mi’Sinai

In contrast to Rashi and Tosafot’s approach, Tosafot Rabbenu Peretz and Ritvah understand that the Gemara is using tbc– if it is a Biblical principle – to shape the scope of the mitzvah of p’rika.

Were you to ask, [according to the position that tbc is Biblical, and one must unload an unduly burdened donkey,] nevertheless how do we interpret the verse ‘under its burden,’ which implies under a burden which it can stand? We can answer – that we interpret the verse the following way, ‘under its burden’ [which it can stand] – one must unload without payment, but when it is a burden which it cannot stand, one must unload, but may be paid, because tbc is a halakha li’Moshe mi’Sinai, a law handed down to Moshe from Sinai.

Rabbenu Peretz states – unlike Tosafot – that it is the verse itself whose scope is broadened based on the principle of tbc. Nevertheless, he does this within narrow parameters. First, he does not allow tbc to change the primary meaning of the verse, only to add a clarifying addendum. The verse, on its surface level, only obligates unloading an appropriately loaded donkey, but – on an implicit, or subtextual level, it also obligates unloading an unduly loaded donkey, albeit slightly lower demands. Second, Rabbenu Peretz states at this point – and this point only – that tbc is known through a halakha li’Moshe mi’Sinai. It seems that he felt the need to make this claim to justify how one could interpret a verse based on an inferred Torah value. One could ask: Isn’t the claim that tbc is Biblical speculative? How could one justify using it to interpret a Torah law? To this he answers simply: There is no speculation here; tbc is known by unbroken tradition to be an operative principle.

One will note that these two parameters of Rabbenu Peretz – using tbc only to add to the meaning of the verse and only because it is a halakha li’Moshe mi’Sinai principle – directly correspond to the two sets of concerns discussed above – the confidence concern and the textual fidelity concern.

In a similar fashion, Ritvah discusses how tbc expands the scope of p’rika, with attention to both of these two concerns:

It appears from the words of Rashi that because tbc is Biblical like a halakha li’Moshe mi’Sinai we do not interpret ‘its burden’ [to mean] a burden which is fit for it, and we [rather] state that ‘its burden’ implies any burden that it is carrying. Now, were we to say that tbc is not Biblical, we should have interpreted ‘its burden’ to mean a burden which is fit for it, for that is what the language more strongly implies. However, now [that tbc is Biblical] we force the [meaning of the] verse somewhat so that it should not contradict the halakha that, in general (b’alma), tbc is Biblical. This is the position of Rashi and it is the correct one… (Emphasis added)

Here Ritvah, like Rabbenu Peretz, is prepared to use tbc in determining how to interpret the verses of p’rika, once we assert that tbc is known through a halakha li’Moshe mi’Sinai, or through some process that gives us equal confidence to its correctness (presumably the function of the word ‘like’ in the first underlined phrase). However, he goes one step further, and states explicitly that on the basis of the tbc principle we will interpret the verse in a forced way. We can use the principle to bend the meaning of the verse, but not to break it. This, again, reflects the textual fidelity concern, but to a lesser extent than Rabbenu Peretz.

Ritvah applies his approach to the case of the non-Jewish donkey owner as well. He states that the principle of tbc will direct us to not apply the limiting phrase, “your brother”, from the mitzvah of reloading in Deut. 22:4, which refers only to Jews, to the mitzvah of unloading in Ex. 23:5. In this way, one will be obligated to unload the animal of a non-Jew, keeping the mitzvah of p’rika consistent with the principle of tbc. Here there is no forced reading of the verse, and the use of tbc is completely unproblematic.

I have been arguing that tbc is the underlying principle, the ta’amei hamitzvah, of the mitzvah of p’rikah, and as such, and with attention to the above-mentioned concerns, can be used to shape that mitzvah’s scope. However, a close reading of Ritvah indicates that he is making a more radical claim, namely, that tbc is an independent obligation, and not necessarily the reason underling the mitzvah of p’rikah, and that we nevertheless use it to guide our interpretation of tbc. This can be seen from his statement that we must reinterpret the verse of p’rikah so that it does not “contradict the halakha that, in general (b’alma), tbc is Biblical.” This statement makes it clear that according to Ritvah:

(1) Tbc is understood to be “a halakha,” and not the reason underlying the mitzvah of p’rikah,

(2) That it is known to exist b’alma, in general, presumably in other spheres outside of the mitzvah of p’rikah, and

(3) We do not interpret p’rikah in light of tbc, but rather in a way that it “does not contradict” tbc, underscoring that tbc exists as an independent obligation, and the need for consistency within the entire system.

According to Ritvah, then, we may use Torah principles and halakhot outside of the mitzvah under consideration to guide us in the interpretation of this particular mitzvah. Now, it is one thing to use a mitzvah’s own principles to shape its boundaries, but to use external principles, even those that are part of the Torah, in this way is quite another thing, While we would, ideally, want each mitzvah and halakha to be consistent with all the other principles and laws, we are certainly aware that this is not always the case and that there are many exceptions and gezeirot hakatuv, divine decrees, within the system. Nevertheless, what emerges for Ritvah, is that our assumption of a general systemic consistency will direct us in our interpretation of the scope of individual mitzvot, and even allow us to interpret verses in a somewhat forced way. This is a claim that certainly exceeds the general principle – even when allowed for – of darshinan ta’ama dikra.

4. Ra’avad – The Principle of Tbc Can be Used to Influence the Mitzvah of P’rikah, even though it is only Derived from Elsewhere

We have seen that for both Ritvah and Rabbenu Peretz, the principle of tbc is known through a halakha li’Moshe mi’Sinai. Ra’avad addresses his attention to the question of the source that tbc is Biblical and gives two different answers. His first answer is as follows:

However, regarding the statement that tbc is Biblical – I do not know from where such a thing is derived. But [we can say] that since the Rabbis do not interpret ‘under its burden’ to mean a burden which it can stand, and they rather interpret it to mean that one is obligated regardless of the burden, and, in addition, they do not interpret “crouching” to exclude an animal that habitually crouches… from this we can infer that tbc is Biblical and therefore one is obligated in these above cases. The practical application [of this principle of tbc] is to a case of an animal that fell down a ditch on Shabbat (Shabbat 128) …

In this first analysis, Ra’avad claims that it is not that principle of tbc drives the interpretation of the verse of p’rikah, but rather that from the halakhic interpretations of the verse, formalistically derived, the principle of tbc emerges as the underlying principle of the mitzvah of p’rikah. Since tbc follows from the scope of the mitzvah, and not the reverse, its relevance cannot be to shape the scope of the mitzvah – a process which is done formalistically. Rather, Ra’avad concludes, the only relevance of this principle can be to exist as an independent obligation – to obligate us to help animals, and to allow us to override rabbinic restrictions on Shabbat. This Ra’avad is consistent with an assumption that many have regarding halakha and Torah values, namely, that we do not shape halakha according to Torah values, but that can infer from the detailed halakhic formulations of mitzvot what the Torah values are, and that we should make these values operative in other spheres of our life.

Ra’avad, however, is forced to abandon this approach when dealing with the sugya regarding the overburdened animal. That sugya makes it clear that the principle of tbc is known from elsewhere and applied to the case of p’rikah. As a result, Ra’avad revises his position and states:

From here it implies that we know the principle of tbc from somewhere else (not internal to the mitzvah of p’rikah), and for that reason they do not interpret the verse like R. Yossi HaGlili. But I do not know from where (this is derived). And it is possible that we derive it from the mitzvah to not muzzle [one’s ox when it is plowing] (Deut 25:4). And R. Yossi HaGlili [would say that] there it is because the ox eats from its own threshing, and since it gives benefit (to the grain), it can derive benefit (from the grain).

According to the conclusion of Ra’avad, the verses of p’rikah are interpreted in conformity with the principle of tbc, a principle that is inferred from another mitzvah altogether. This position is a rejection of the confidence concerndiscussed above, as there is no certainty here that this is, in fact, a Torah value, and R. Yossi HaGlili can easily claim that a different value (to wit, the value of reciprocity) underlies the mitzvah not to muzzle one’s threshing ox.

What remains unclear is whether Ra’avad is whether the principle of tbc is seen to be a local one to the mitzvah of p’rikah. He may be claiming, like Ritvah, that since tbc is a general principle, we will interpret the mitzvah of p’rikah so as not to be in contradiction to this general Torah value. Alternatively, he may be claiming that once tbc is seen to be the underlying principle of another mitzvah, we can reasonably assume that it is the underlying principle here, and that it shapes the mitzvah of p’rikah because it is the principle upon which this mitzvah is based. I find this latter approach the preferable one, in that it is more consistent with the text – the absence of referencing prooftexts and the application of tbc only to this one mitzvah suggest that tbc is being read as a local principle – and in that it is more in keeping with the general conservatavism of the halakha. I do not, however, rule out that he might very well have intended the former, bolder claim.

5. The Reasons for Mitzvot

One point that emerges clearly from all of these discussions is the difficulty in identifying the correct principles that underlie a mitzvah – the ta’amei hamitzvah. The entire sugya of p’rika, in particular section [A], above, recognizes that one could just as easily assume that this mitzvah is based on the concern of monetary loss to the owner, and not on the concern of the suffering of the animal. Moreover, Ramban points out that any law used to demonstrate concern for the animal suffering could easily be translated as a concern for the owner’s anguish which results from his animal’s suffering. To this list, Rambam adds yet another possibility: the potential danger the owner is exposed to when his donkey struggles on the road.

Ra’avad’s comments on this are most telling. Searching throughout the entire body of 613 mitzvot he is not able to find any mitzvah that clearly speaks to the concern of tbc, with the exception of not muzzling one’s threshing ox. Now, this statement may strike us initially as bizarre. There are many mitzvot that relate to animals. We might justifiably assume that at least some of these mitzvot show our concern for their suffering. However, when we begin to look at each of these mitzvot, we realize how difficult it is to pin down the reason for any mitzvah. Consider sending away the mother bird when one takes the eggs. Is this about the suffering of animals? Ramban claims that it is not – it is about training humans not to be cruel, by not wiping out an entire family in one swoop. In fact, upon reflection we realize that this mitzvah creates the suffering of animals, as the mother bird would certainly suffer less if she were killed rather than seeing her eggs taken away and being chased away as she tries to protect them. Consider Rabbenu Bahya’s commentary to that mitzvah:

And there is in this mitzvah the bestirring of compassion on the entire world. For when the person sends away the mother bird – behold she is in anguish and is greatly anxious regarding the destruction of her nest and being distanced from her children, and she is in anguish and goes off and wants to kill herself, and because of her great pain the angel that is appointed over birds beseeches God for compassion, and then God, of Whom it is written: “His compassion is on all His creatures” (Ps. 145:9) extends the overflow of compassion on all those who are in anguish and who need compassion, and he has compassion on them.

This is not a mitzvah of alleviating suffering, but rather of causing animal suffering, albeit with the ultimate goal of bringing compassion and healing to the world. The only mitzvah, then, that Ra’avad could find that seemed to speak clearly of the concern of tbc was that of not muzzling one’s ox, but even then, another, readily available reason could be found.

In a way, the difficulty for identifying the underlying principle for a mitzvah is evident to anyone who is familiar with the ta’amei hamtizvot literature. A simple comparison on a random selection of mitzvot between the explanations of Rambam, Ramban, Chinukh, Maharal, Ramchal, Rav Kook, and Rav Hirsch will demonstrate how subjective and speculative this attempt is.

No wonder, then, that Rishonim and poskim take seriously the confidence concern. Given the lack of any objective criteria to determine that we have identified the correct underlying principle, how could we not be hesitant to use it to interpret the scope of a mitzvah? This concern also raises questions regarding the whole enterprise of Torah values as an obligation. How, we may reasonably ask, are we to strive to live up to Torah values, in addition to Torah law, if there is no way to know for sure what those values are? The answer to both of these questions may be, ayn li’dayan el mah she’einav ro’ot, the judge only has what his eyes see, and we must do the best we can in identifying these values and underlying principles, knowing at the same time that we will never achieve complete clarity or confidence. Nevertheless, we do ourselves a disservice if we lose sight of what so clearly emerges from this sugya and the attendant discussion – that identifying the underlying principles of a mitzvah is an elusive goal.

Conclusion

We have seen that Rabbenu Peretz, Ritvah, and Ra’avad, in contradistinction to Rashi and Tosafot, are prepared to assume that the Gemara uses Biblical principles – either local or general ones – to interpret the scope of a mitzvah, and that they disagree as to whether and to what degree, in these cases, the Gemara needs to attend to the confidence concern or the textual fidelity concern raised by later poskim.

To jump ahead a few hundred years, we may note that these same issues emerge in a discussion found in the Ohr Samayach, Rav Meir Simcha HaCohen of Dvinsk’s commentary on Rambam:

Now it appears, somewhat, that regarding Rabbi Akiva, who allows one to do work for the purpose of “food for souls” on Yom Tov, including all souls, even those of animals, it stands to reason that he is of the opinion that tbc is Biblical, and therefore out of consideration of their suffering the Torah permits one even on Yom Tov to make food for them to eat. And R. Yossi HaGlili goes according to his reason in Bava Mezia (32b) regarding p’rikah that if it was an unduly burden one is not obligated to help, because tbc is not Biblical. Therefore, he holds regarding Yom Tov (Beiza 21a) that one can only make food ‘for you’ and not for dogs…

R. Meir HaSimcha Cohen asserts that what appears to be a technical debate regarding cooking on Yom Tov is really a manifestation of a debate as to the existence of a general principle of tbc. This is a clear rejection of the position that only the underlying principle of a mitzvah – and not larger, external ones – can shape its scope. Here, tbc is seen as a general Torah principle, which shapes a mitzvah completely unrelated to that of p’rikah – the allowance to cook on Yom Yov. This position, were one to combine it with Ra’avad’s rejection of the confidence concern and Ritvah’s minimizing of the textual fidelity concern, would make for the boldest claim as to the use of Torah principles in shaping halakha.

We have seen each of these claims made separately, and – perhaps for good reason – have not seen any position that makes two, let alone all three, of these claims together.

A final caveat is in order. The preceding discussion has staked out different positions regarding the use of Torah principles to shape Torah law. However, the entire discussion has been in reference to the interpretation of verses and halakha as done by the Rabbis of the Talmud. These Rabbis are the fathers of the Oral Law, and the role that later rabbis play in the interpretation of halakha is much smaller by comparison. Thus, even the stronger claims made by the various Rishonim for the use of Biblical principles in halakhic interpretation, cannot be seen to be applicable to the use of such principles in the halakhic interpretation of post-Talmudic rabbis. This issue would require separate treatment and analysis.

Footnotes:

1 I specifically choose the term “values” and not “ethics”, as the scope of the principles and values that can interact with and underlie halakha is not limited to the field of ethics. Consider, for example, the principle of shabbaton – creating a day of rest from physical exertion as distinct from the halakhot of the 39 melakhot. This is an issue of Torah values, not of ethics.

2 The most relevant primary source is Ramban, Commentary on the Torah, Lev. 19:2, Deut 6:18, and Deut. 23:24. Classic articles addressing this question are: Saul Berman, “Law and Morality,” Encyclopedia Judaica 10 (1971) 1480-1484; Yeshayahu Leibowitz, “Religious Praxis,” Judaism, Human Values, and the Jewish State, Cambridge: Harvard University Press (1992), pp. 12-21; Aharon Lichtenstein, “Does Jewish Tradition Recognize An Ethic Independent of Halakha,” Modern Jewish Ethics, ed. Marvin Fox, Ohio: Ohio State University Press (1975), pp. 62-88, Saul Berman, “Lifnim Mishurat Hadin,” Journal of Jewish Studies 26,1 (1975) 86-104; 28,2 (1977) 181-193, and Walter Wurzberger’s article “Covenantal Imperatives”, Samuel K. Mirsky Memorial Volume (1970) 3-12, and his collection of essays in Covenental Imperatives, Urim (2008).

In fact, to some degree, the entire enterprise of ta’amei hamitzvot – to the degree that it is not a purely academic enterprise in theology – can be said to be based on the assumption that the underlying values of the mitzvot are relevant to how we live our lives.

3 Classic articles addressing this question are: Eliezer Berkovitz, Not In Heaven, pp. 19-32; Moshe Halbertal, People of the Book, pp. 27-40. Good readings for this from the sphere of secular legal theory are: Robert Cover, “Nomos and Narrative”, [citation], and Dworkin [citation needed].

4 Classic articles addressing this question are: Lichtenstein, “Does Jewish Tradition Recognize”, supra. Marvin Fox, The Philosophical Foundations of Jewish Ethics, pp. 12-21, Moshe Halbertal, “Apostate City” ; Avi Sagi, “The Punishment of Amalek”, David Weiss Halivni, “Can a Religious Law Be Immoral?”, and Moshe Halbertal’s book-length study, “Mahapekhot Parshaniyot bi’hit’havayutan”. Sadly, many of the arguments for an independent ethics at play, fail to consider Marvin Fox’s trenchant critique, a possible exception being the article by Halbertal, supra. See also Netziv, Herchev Davar, on Exodus 20:12.

5 This matter is a debate between Rabbi Yehudah, who states that one cannot use the reasons of a mitzvah to determine its scope, and Rabbi Shimon who states that one can. There is, in fact, some debate as to how we rule, see Lechem Mishneh, Malveh v’Loveh, 3:1; Rav Shlomo Kluger, Responsa HaElef LiKha Shlomo, OH 342; Responsa Hatam Sofer, Yoreh Deah 254.

6 Rav Yaakov Yechiel Weinberg, Responsa Sridei Esh, 2:41; Rav Ovadya Yosef, Responsa Yechave Da’at 1:55.

7 Responsa Hatam Sofer, EH 17.

8 Responsa Hatam Sofer, Yoreh Deah 254.

9 Responsa Noda BiYehuda, Kamma, EH 80; Responsa Har Tzvi, YD 123.

10 Rav Kook, Responsa Mishpetei Kohen, 143.

11 Rav Kook, Responsa Orah Mishpat, HM 5.

12 Rashi, BM 32b, s.v. Zakuk lo.

13 Rashi, BM 32b, s.v. Hakhi Ka’amar u’Lihateena.

14 Tosafot, BM 32b, s.v. Mikhlal.

15 It is possible that Rashi and Tosafot explain the sugya the way the do based on textual consideration and not based on any particular take in regards to lo darshinan ta’ama dikra. They may, also, be taking their lead from the sugya in Shabbat 128a, which establishes TBC as an independent obligation. Nevertheless, their explanation of the sugya here makes the sugya irrelevant to the question of the interaction between a Torah principle and the interpretation of a Torah law an to an analysis of the parameters of lo darshinan.

16 See Minchat Chinukh mitzvah 80, no. 6, for a discussion about how the obligation of tbc would differ from the obligation of p’rikah. His point – slightly expanded upon – is that p’rikah, as is the case with other mitzvot, has formal parameters and is act-focused, whereas tbcwould be less formal, more contextual, and more end-result oriented. For a related discussion on the scope and application of a value as opposed to a halakha, see R. Aaron Lichtenstein’s discussion regarding din and lifnim mishurat hadin, in “Does Jewish Tradition,” pp. 77-79. See, also, Hatam Sofer, EH 20, regarding the difference between the woman’s obligation of lashevet and the man’s mitzvah of pru u’rvu.

17 Minchat Chinukh, mitzvah 80, no. 2. Of course, in principle both could be true – tbc could be Biblical, and technical hermeneutics could support a larger scope of p’rikah. Minchat Chinukh would not debate this in principle, but – according to Rashi and Tosafot – it is not a position represented in the Gemara.

18 Tosafot Rabbenu Peretz, Baba Mezia 32b, s.v. Mikhlal

19 At least according to this Tanna. Rabbi Yosi HaGlili would claim that it is not a halakha li’Moshe mi’Sinai. Of course, it could be argued that he introduces halakha li’Moshe mi’Sinai for no other purpose than to explain the source that tbc is Biblical. However, were this the case, he would not have waited until this point to give this explanation as to its source, since the claim that tbc is Biblical was made several lines earlier in the Gemara. See, also, the exactly parallel use in Ritvah, below.

20 To the best that I can tell, Ritvah had a different text of Rashi on this sugya than the printed one.

21 Ritvah, Baba Mezia, 32b, s.v. Teida.

22 Ritvah, ad. loc., s.v. Leima.

23 I mentioned above that the sugya seems to be working with the assumption that tbc is the principle of p’rikah and not a general principle, because it brings no prooftext to demonstrate that tbc is Biblical and because it does not use tbc to shape the scope of other mitzvot. Ritvah would respond to the first claim by averring that tbc needs no prooftext since it is a halakha liMoshe miSinai. I do not know how he would respond to the second claim. Presumably, he would claim that we would be prepared to apply the same treatment to other mitzvot as well.

24 Ra’avad, as quoted in Shita Mikuvetzet, Bava Mezia 32a, s.v. Mihu.

25 See a similar approach in the name of Tosafot in Shita Mikuvetzet, Bava Mezia, 32a, s.v. Katuv biTosafot.

26 Ramban, in his commentaries cited above, note 2, makes this claim in regards to values that can be inferred from a group of mitzvot (e.g., the value of dealing with others with probity and equity) or that emerges from the mitzvah in a general way (making Shabbat a day of rest). He does not make this claim in regards to the specific halakhot of a given mitzvah. This, of course, was a mainstay of the thought of Rav Soloveitchik, z”l. For a relevant analysis of his approach, see “Rav Joseph Dov Soloveitchik and the Philosophy of Halakha,” Shubert Spero, Tradition 30 (1996) 2.

27 Ra’avad, as quoted in Shita Mikuvetzet, Bava Mezia, 32b, s.v. vi’ha’Raavad.

28 Ramban, Bava Mezia, 32a, s.v. Ha d’Amrinan.

29 See his list of mitzvot, Laws of Murder and Bodily Preservation, mitzvah 17 (also implicit in his formulation of mitzvah 15, with its emphasis on the owner’s plight), and chapter 13, law 2. The very categorization of these laws in the section dealing with murder and bodily preservation speaks to this conceptualization as well.

30 Ramban on Deut 22:6.

31 Rabbenu Bahya on Deut. 22:6.

32 This also gets to the question of how one can ever truly distinguish between a true Torah value and own’s one value that is being read as a Torah value, given the highly subjective nature of this endeavor.

33 Ohr Samayach, Laws of Shabbat, 25:26, s.v. viHenei.

34 For example, it is almost completely unheard of for post-Talmudic rabbis, and certainly for contemporary ones, to interpret a verse in a new, halakhic way, something that is the hallmark of the Talmudic rabbis.