Parashat Mishpatim 5770/ February 13, 2010
the weekly Torah reading by the faculty of
A Brief look at Shaddal’s approach to Midreshei Halakhah
Prof. Shmuel Vargon
Department of Bible
From a young age Shaddal  immersed himself in study of the Talmud and writings of the Sages. These, coupled with his belief in the sanctity of Scripture, provided his cultural foundation. Nevertheless, there are many places in his commentary where he takes exception to the interpretations given by the Sages. Below we present several examples from this week’s reading in which his commentary criticizes, sometimes obliquely and sometimes explicitly, the Sages’ interpretations of Scripture in halakhic matters. Needless to say, like those medieval exegetes such as Rashbam who interpreted Scripture according to its plain sense and not according to the halakhah, Shaddal did not intend to challenge the validity of the halakhah or to assert that on the basis of his interpretation one should act differently. Like all traditional exegetes, Shaddal felt himself bound by halakhah.
In several of his interpretations of the commandments, Shaddal explicitly stated that the interpretation of the Sages does not follow the plain sense of Scripture, as, for example, in his commentary on the law of a goring ox: “When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished” (Ex. 21:28). This scriptural law pertains to an ox which has not been known to gore (shor tam) but has caused a person’s death by goring. The ox must be stoned, its flesh may not be eaten, and according to the plain sense of the text the owner of the ox goes free of any punishment (Rashi).
Shaddal, however, cited the words of the Sages, who remarked (Bava Kama 41a): “Even if it is slaughtered before being stoned (after having been sentenced to stoning, since clearly after having been stoned one may not eat its flesh by reason of the law which says ‘You shall not eat anything that has died a natural death’ [Deut. 14:21]) – one is forbidden to derive benefit from it.” In other words, one may not eat the flesh of an ox that has been sentenced to stoning, even if it is actually slaughtered and not stoned; nor may one derive any benefit from it, such as selling the carcass to a non-Jew or feeding its flesh to an animal. According to these words of the Sages, the owner of the ox comes off “free (Hebrew naqi) from his property and may have no benefit from it.” Shaddal approved of this interpretation, remarking that “killing the ox is not to punish the ox, rather its owner, so that he guard his beasts from doing damage.” On the Sages’ regulation he said, “The law is just, even though it does not follow the plain sense of Scripture.” 
Between Interpretation and Regulation
Shaddal’s unequivocal distinction between the plain sense of Scripture and the law is one of the main characteristics of his approach to halakhic passages in the Torah. His attempts to explain the Sages reflect an apologetic approach whose aim is to say that the Sages, too, knew that they were not interpreting the plain sense of the text (and therefore he, too, is entitled to explicate the text according to its original instruction); rather, through midrashic interpretation they were consciously seeking to establish regulations. This can be illustrated by his commentary on the verse, “When men quarrel and one strikes the other … and he does not die but has to take to his bed – if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except that he must pay for his idleness and his cure” (Ex. 21:18-19). Scripture speaks of bodily injury sustained in the course of a quarrel between two people, in which one hits the other with a rock or his fist, delivering a blow which does not kill the other person but causes him to take to his bed. In the Mekhilta, Rabbi Ishmael interpreted the expression, “if he then gets up and walks outdoors upon his staff,” metaphorically: “Upon his staff – [if he walks] well, properly. This is one of three places in the Torah that Rabbi Ishmael expounds metaphorically.” Only then, if the injured party healed to such an extent, would the assailant be free of the death sentence should the injured party suddenly die, and the attacker would only have to pay damages for the injury. 
Ibn Ezra noted the difference between the plain sense of the verse, which seems to say that if the injured could walk with the help of a cane, the attacker is not to be punished, and its halakhic explication. He therefore added, “We rely on the Sages, who interpreted upon his staff as meaning that he not have to lean on another, as does a sick person, but could manage by himself.” Shaddal, however, interpreted it literally: if the person who had been hit got up and walked outdoors, "leaning on his staff or cane,  the assailant would be free from punishment forthwith, even if subsequently the person who had been hit were to die, since one could argue that he himself was to blame for not taking proper care once he began to recuperate.”  That is to say, the simple meaning of the verse is that the injured man should remain at home and if he ventures out as an infirm person on a cane, then he has only himself to blame for any future problem.
Shaddal considered Rabbi Ishmael’s interpretation in the Mekhilta which we saw above, that only if he regains his complete health does the assailant go unpunished, as a stricter regulation than what the simple reading of the text implied, since it exonerated the assailant only if the person who was hit regained his former strength and health. Here Shaddal tried to explain the Sages’ method – they wanted to enact halakhic regulations and not simply to interpret the plain sense of the text.
Avenging a Murder
Shaddal took issue with the Sages’ interpretation of the law of murder – “shall be put to death.” On the verse, “He who fatally strikes a man shall be put to death” (Ex. 21:12), he wrote:
That means that the Torah permits the blood avenger to kill him as long as he is not in a city of refuge. This follows from the plain sense of the text in Numbers 35:19: “The blood-avenger himself shall put the murderer to death; it is he who shall put him to death upon encounter.” And further on (Num. 35:27), “if… the blood-avenger comes upon him outside the limits of his city of refuge, and the blood-avenger kills the manslayer, there is no bloodguilt on his account.”
Shaddal’s commentary contradicts what the Sages said in Mekhilta de-Rabbi Ishmael,  namely: “He shall be put to death – that is, by order of the court. You interpret it to mean by order of the court. Perhaps this is not so, but it means even without the order of the court? Scripture however says, ‘so that the manslayer may not die unless he has stood trial before the assembly’ (Num. 35:12) Hence, when saying here, ‘shall be put to death,’ Scripture must mean by order of the court.” Thus we see that the Sages did not accept the possibility of the manslayer’s punishment being carried out by the blood-avenger. 
Shaddal’s view is based on the argument, “Had the Torah intended to absolutely forbid blood-avenging, what need would there be for cities of refuge? So, the intention of the Torah is to minimize but not forbid blood-avenging; and if the blood-avenger kills the murderer outside the city of refuge, he is not guilty of bloodshed.” 
Here, too, Shaddal reiterates his view that the halakhic interpretation of the Sages is more lenient than the original meaning of the law as stated in the Torah. Further on in his interpretation on this verse he writes that judges would surely judge the murderer only on the basis of evidence from witnesses, saying, “elsewhere it says explicitly that two witnesses are required,” but that “the Sages added (Mekhilta, Mishpatim 4) the element of forewarning in order to distinguish between manslaughter and murder, and this, too, was done with a view to being more lenient.” 
Ahare Rabbim Le-hattot
We bring one last example. Scripture says that in arriving at a judgment, “You shall neither side with the mighty to do wrong – you shall not give perverse testimony in a dispute so as to pervert it in favor of the multitude” (Ex. 23:2). The first clause of this verse is interpreted in accord with its plain meaning: if you see that the multitude is doing wrong, do not follow after the majority. However, in tannaitic and amoraic literature the last phrase is interpreted as a positive command: you must favor the multitude (or majority). Thus the midrash halakhah interprets this phrase as an instruction to the court,  that its decisions follow the opinion of the majority.
Many medieval exegetes, however, interpreted the verse according to the syntax that follows from the cantillation signs, which isolates the final word le-hattot (= to favor) from all that preceded it (which is not the way the Sages read it). In this reading, there are three clauses in the second half of the verse: ve-lo ta`aneh `al riv (= do not take a stand in a dispute) – lintot aharei rabbim (= following the multitude), le-hattot (= to pervert).  According to this reading, the phrase ahare rabbim le- hattot that provided the foundation for the midrash halakhah does not even exist. Rashi, whose commentary generally follows the Sages,  preferred in this instance to follow the approach of the cantillation signs: Do not express your opinion (= Lo ta`aneh) in [a court hearing on] a dispute (=`al riv) [in such a way as] to follow the majority (= lintot aharei ha- rabbim) [of evil judges, mentioned in the first half of the verse, since in so doing you will come] to pervert (= le- hattot) true justice. 
Shaddal took exception to Rashi's explanation at great length, faithfully following his own method of interpreting by context, and therefore he stated that the Scriptural verse deals not with judges at all, rather with an individual coming to testify: “This apparently deals with testimony, as is the subject-matter of the previous verse, with the end of the verse reading, ‘ve-lo ta`aneh (= do not testify; as in Lo ta`aneh be-re`akha `ed shaker = “You shall not bear false witness against your neighbor,” Ex. 20:12) `al riv (= in a dispute).’ The difference is that the latter part of the verse refers to a dispute and the former where there is no dispute.” In this interpretation Shaddal adopted the view of Ibn Ezra in his long commentary:
The correct interpretation is as Ibn Ezra reads, that when there is a dispute between people, do not bear false witness, testifying to something that you have not seen, and do not rely on the testimony of numerous others … because this might lead to perverting justice. Should you say: since there are many testifying, the addition of one more witness will neither help nor harm, realize that this additional one, if he seems to them to be a valid witness, might cause the judges not to investigate as extensively … The Sages’ interpretation (Sanhedrin 2a-b) of aharei rabbim le-hattot, commanding the judges to rule according to the majority, is an asmakhta [a ruling not really derived from the verse, only deduced therefrom by the Rabbis]; and undoubtedly there is no other way for judges to rule other than by majority, for it is highly unlikely that they all agree. However, this scriptural passage does not pertain to judges, rather to an individual who comes to testify.
Shaddal himself attested to his approach to biblical laws: “I have not departed from expounding Scripture according to its deepest plain sense … often contrary to established halakhah … I have also elucidated the reasons for [the Sages’] rulings.”  As we said above, whenever Shaddal’s interpretation contradicted the Sages’ halakhah, this does not mean that he did not accept the halakhah. He accepted the Sages’ authority to make laws by virtue of their status as transmitters of Jewish tradition (and in his view, a rule of halakhah that contradicted the plain sense of the text was either an asmakhta [see above] or a takkanah [regulation]), but the verse itself he would interpret according to the rules of language.
 The acronym for Samuel David
 Throughout Scripture the word naki (= not to be punished, exonerated) appears in a positive sense (as in Gen. 27:41; Deut. 27:5, Ps. 10:8), not as it is used in midrashic literature, "cleaned out ( naki) of his assets". The conclusion of verse 29, “and its owner, too, shall be put to death,” which stands in opposition to verse 28, “but the owner of the ox is not to be punished,” reinforces the plain sense of the word naki – not to be punished, as Rashi explained.
 Likewise in Ketubbot 33b; Sanhedrin 78b; Targum Onkelos; Rashi, loc. sit. Rambam (Hilkhot Rotze`ah 7.4) ruled: “The fact that the Torah says, “upon his staff,” does not mean that he walks leaning on his staff or on another person, for even a person at death’s door can walk leaning on a walking stick. It says “staff” to mean none other than that he walks properly holding himself up, not needing any outside support.”
 Mish`enet (rendered “staff”) is a cane upon which one leans, as in Zechariah 8:4: “each with staff in hand because of their great age.”
 According to Shaddal, “this passage from Scripture does not apply if he lost his arm or his leg, rather to an illness from which one can recover.” However he said that the Sages ( Bava Kama 84a) held that this verse also applies to the case where “he lost his arm or his leg, and they interpreted that [the assailant] must only pay compensation on his loss of employment from then on, for the rest of his life.”
 Mishpatim, Tractate Nesikin 4 (Lauterbach ed., vol. 3, p. 33).
 Apparently, according to Numbers 35:12-24, the court intervenes only when the murderer succeeds in escaping to a city of refuge and the blood-avenger requests that he be turned over to him; but if he did not succeed in escaping there and was murdered by the blood-avenger, the court does not intervene.
 This idea is developed in Shaddal’s interpretation of Num. 35:12, which implies that the Torah is opposed to blood-avenging. If so, why are the judges commanded to hand over the murderer to the blood-avenger, in the event that he be found guilty of premeditated murder? Shaddal’s commentary there goes into great length on this question.
 Shaddal’s commentary cites the law about a person who reviles his father and mother as another instance of this approach by the Sages. According to Scripture, “He who reviles his father or his mother shall be put to death” (Ex. 21:17). The severity of punishment is explained, said Shaddal, on the grounds that “in ancient times fathers ruled their households, exercising the power to punish and put to death, as we know from the annals of other nations, and as Judah said in the Torah, ‘Bring her out and let her be burned’ (Gen. 24:38). Here the Torah takes this power out of the father’s hands and gives it to the court; therefore it is strict with sons, since they were already accustomed [to such Draconian laws],” and therefore they decreed the death penalty for any derision of parents by a son. But “the judges would undoubtedly have tended towards leniency, on the basis of what Moses relayed to them orally. Thus we find that the Sages ( Mekhilta, Mishpatim 5) require that the explicit name of G-d be used in the derision.” Likewise for the law of a recalcitrant son: “There, too, the Sages (Sanhedrin 71a) stipulated many essential conditions, making it virtually impossible for the son to be put to death.” In Shaddal’s opinion, “exaggerated threats, with no intention of actually implementing them, since the necessary conditions are far from likely in reality” are used from the outset, and the judges are secretly instructed to treat the letter of the law as a general guideline and not a firm directive. The Torah instructs the judges to take the conditions of the time and place into consideration, “hence we were commanded to always obey the judge that will arise in each and every generation” (Shaddal’s commentary on Ex. 21:17, p. 343).
 Mekhilta of Rabbi Ishmael, Misphatim, Tractate Kaspa 20, p. 323. Compare Sanhedrin 1.6, which concludes from the verse in criminal law that the procedure for exonerating is different from the procedure for finding guilty. See Mekhilta de-Rabbi Simeon bar Yohai, Mishpatim 23.2, p. 214; Tosefta, Sanhedrin 3.7.
 Editor's note: this interpretation is identical to the NJPS translation cited above.
 In his commentary on this verse Rashi notes: “The Sages have expounded this verse, but the language of Scripture does not fully accord with their interpretations… so I propose to reconcile the meaning with the plain sense, and this is my solution to the problem.” In his opinion, the important underlying halakhic ideas in the verse do not lie in the plain sense of the text but can be deduced by way of midrashic exposition.
 The interpretations of other
exegetes who followed the plain sense, such as Rashbam
and Ibn Ezra, also come up with this syntactic
approach. See S.Kogut,
 Iggerot Shaddal, S. A. Graber, Przemisl 1882, p. 233.