Rabbi Dov Kramer on the Parsha

Taking A Closer Look (Rabbi Dov Kramer)


“When a matter of judgment becomes hidden from you, between blood [and] blood, between court case [and] court case, and between affliction [and] affliction, words of disagreement within your gates, and you shall get up and you shall go up to the place that Hashem your G-d has chosen” (Devarim 17:18). Unlike our secular courts, where the lower courts issue rulings that determine the law unless or until it is overturned by a higher court, Jewish law is determined at the top. Either it was taught to Moshe by G-d, who taught it to Yehoshua, etc, or it was determined by the Jewish Supreme Court, the Sanhedrin. If there was ever a doubt as to what the law was, or if a disagreement ever arose between courts as to what the law was, the case was brought before the higher courts to see if they knew what the law was, and it kept being “kicked” up to a higher court until either it came before a court that knew the law, or the Sanhedrin deliberated and determined the law (Rambam, Hilchos Mamrim 1:4). It would seem, though, that this could have been stated in a much more concise manner; “If a question about the law ever arises, get ye to the Sanhedrin!” Why were these three categories (blood, court cases and afflictions) delineated?

Maharal suggests that these categories represent three areas of life, the self (afflictions, i.e. “tzoraas”), the household (represented by the wife, i.e. her emissions of “blood”), and society (court cases, both civil and criminal). The implication is that in all areas of life, the law is determined through the “Halachic System,” with the law either being passed down from a previous generation or determined by the halachic authority (the Sanhedrin). Even so, mentioning the categories should have sufficed; mentioning each category twice, using the expression “between blood/case/affliction and blood/case/affliction,” needs to be explained. Why didn’t the Torah just say, “When a matter of judgment regarding blood, court cases or afflictions becomes hidden from you, you shall go up to the place that G-d has chosen?”

The Tosefta (Horiyos 1:5) uses these words to prove that the procedure followed (i.e. which offerings to bring to atone for the mistake) if the Sanhedrin issues an incorrect ruling only applies when a law within a category is disregarded, not when a whole category is disregarded (“between blood and blood,” not when there are no laws regarding blood). Nevertheless, in order to learn this concept we would only need the extra words by one category, not by all three.

Rashi explains this extra verbiage as the question arising “between blood that is tamay (ritually impure) [and] blood that is tahor (ritually pure), between a verdict of innocence [and] a verdict of guilt (or obligation), and between an affliction that is tamay [and] an affliction that is tahor.” In other words, the Torah is laying out for us what the doubt is about; is the blood tamay or not, is the defendant off the hook or not, and is the affliction tamay or not. However, this would seem obvious too, as what other options are there? Even though Rashi helps us read the words, he doesn’t seem to help us understand why those “extra” words are there.

Rashi’s explanation is difficult for another reason as well. Not just because the Talmud (Sanhedrin 87a and Nidah 19a, see also Yerushalmi Sanhedrin 11:3) and Sifray (152) explain the verse differently, but because the Talmud (Nidah 19a) rejects the explanation that Rashi uses. The Mishna discusses which colors of blood are tamay, implying that there are some colors of blood that are not. The Talmud asks how we know that there is any blood that is not tamay; maybe all blood is tamay, no matter what color it is. The first answer given is based on our verse, that the extra words indicate that there is blood that is tamay and blood that is tahor, and a doubt arose as to which is which. The Talmud then proves that this can’t be what the verse means, as the third category would then be distinguishing between afflictions that are tamay and afflictions that are tahor, and there are no “afflictions” that are tahor. The term “affliction” (“nega”) only applies if it is tamay; if it is tahor, a different term is used. The Talmud then gives us the “real” explanation of the extra verbiage, that the Torah is referring to sub-categories, which match (or almost exactly match) the sub-categories the Talmud gives in Sanhedrin and the Sifray gives on our verse (the blood of a “nidah,” “yoledes” and “zavah,; a criminal case that involves a capital offense, other criminal cases, and cases that involve monetary issues; and afflictions of the body, of a house and of a garment). Finally, the Talmud proves that there must be blood that is tahor, as if all blood was tamay, a question about it couldn’t have arisen that would need the Sanhedrin for clarification. (The Talmud explains why the Sanhedrin may have to get involved with inflictions even if they are all tamay, detailing what they might need to clarify.) Why didn’t Rashi use Chazal’s approach to explain the verse? How could Rashi use an explanation that the Talmud rejects?

Tzaidah LaDerech offers two possible explanations for Rashi. First he suggests that Rashi didn’t really mean “afflictions that are tahor,” since none exist. Rather, he meant conditions that are tahor and therefore not really afflictions. However, being that Rashi is trying to explain why the Torah uses the word “nega” twice, this possibility is a bit difficult to accept. Tzaidah LaDerech’s second approach is based on the fact that Rashi’s purpose in his commentary is to offer the simplest, most straightforward explanation of the words. Rashi will therefore sometimes choose explanations that the Talmud rejects, if it is the most straightforward way to explain them. Although Tzaidah LaDerech does enumerate several cases where Rashi chooses a minority opinion (or an opinion that is not consistent with the Talmud’s conclusion), using an opinion that is rejected outright seems to be taking this a step further. Even though we do find Chazal using this explanation for the words relating to “blood” (besides Nidah 19a, see Berachos 63b and Yerushalmi Nidah 2:6), and we should try to understand this explanation given its rejection (on Nidah 19a), nowhere is Rashi’s explanation of the words relating to “affliction” given; without a source for this explanation, and given it being rejected by the Talmud, how could Rashi use it?

At first glance, the Talmud’s initial question of how we know that any blood is tahor seems strange. After all, the Torah says explicitly (Vayikra 12:4-5) that a “yoledes” (one who gives birth) has a long stretch where any blood she sees is tahor. However, the Talmud is discussing colors, and asking how we know that there are certain colors of blood that are tahor; the blood of a “yoledes” is tahor even if it is a color that is normally tamay. The Talmud finally proves that there must be some colors that are always tahor because otherwise how would a doubt about whether she is tamay arise. This is not such a simple “proof,” though, as elsewhere (Sanhedrin 87b) the Talmud gives examples for each of the sub-categories of what kind of doubt could arise. For the sub-category of a “yoledes,” the example is whether or not there must be a break between the bleeding after childbirth and the bleeding that is not tamay. This has nothing to do with the color of the blood, so the category of “blood” that must be settled by the Sanhedrin does not really require that there be a color of blood that is tahor. Similarly, the example of the sub-category of a “zavah” has nothing to do with the color of the blood. It is only the sub-category of a “nidah” that revolves around the color of the blood. The Talmud using this sub-category to prove that some colors are tahor indicates that the extra words by each category are understood to be teaching us each of these sub-categories, and since each sub-category must have the possibility of needing clarification by the Sanhedrin, we know that there must be some color (or colors) of blood that are not tamay.

This explains why we need sub-categories by blood. What about the other two categories? Does the Torah point to their sub-categories only to remain consistent, or do we learn something from them as well? If the only sub-categories hinted to by the Torah’s extra words were under the blood category, then the possibility exists that rather than being sub-categories of cases that may need clarification by the Sanhedrin, the Sanhedrin may only be needed to distinguish between these categories, to determine where a certain type of bleeding is considered that of a “nidah, yoledes or zavah.” However, since we have sub-categories of afflictions as well, we know that this can’t be how to read the verse, as there is no way anyone can be confused as to whether the affliction is on a “person, house or garment.” The extra words that tell us that there are sub-categories by afflictions teach us that the Sanhedrin may have to clarify details within each category, not just to help us distinguish between them. It could be suggested that once we need sub-categories by two of the categories, the Torah kept the language consistent and referred to sub-categories of court cases as well. It is also possible that the Torah wants to teach us that all court cases, whether they involve financial issues, more serious crimes/sins, or less serious crimes/sins, must be clarified by the Sanhedrin; there cannot be one set of laws for one city or one Tribe and another set elsewhere, even if those differences are mutually agreed upon in each locale or by each group. There may be a division of federal, state and city law in our secular society, but by teaching us these sub-categories, the Torah is telling us that there must be one set of laws for all of Israel.

Once we’ve established that on the “d’rash” (exegetical) level the Torah is teaching us things about each category (and sub-category), we can return to how Rashi explains the verse on the “p’shat” level (its plain meaning). We can’t learn that there is such a thing as tahor blood by reading the extra words as “between blood that is tamay and blood that is tahor,” but once we’ve learned that through the “d’rasha,” it is now a viable way to read it as “p’shat.” The Talmud only rejected the “p’shat” reading as a source for the law, not as a way to read the verse once we know the law. The problem that remains is how Rashi could say that this is the “p’shat” by afflictions if there are no “afflictions” that are tahor.

But are there really no afflictions that are tahor? Previously (www.RabbiDMK.posterous.com/Parashas-TazriyaMetzora-5770) I have discussed the fact that an affliction does not become tamay until the Kohain declares it to be tamay. Whereas for blood the poseik (halachic decisor) tells us what its status was even before it was examined, the house (or garment or person) does not become tamay until after the Kohain’s declaration. This creates several anomalies, including the existence of a real affliction, one that will become tamay once the Kohain says it is an affliction, that is not yet tamay. It is an “affliction” that is “tahor” (see Shabbos 132b). When it comes to determining the status of an affliction, there is no such thing as an affliction that should be declared tahor. Therefore, when operating in the realm of determining status, the Talmud rejects the possibility of there being an affliction that is (i.e. should be declared) tahor. However, Rashi, operating on the “p’shat” level, is not reading the verse to determine its status, but to determine which kinds of cases to bring to the Sanhedrin for clarification; until it is clarified and declared to be an affliction, it is tahor.

Nevertheless, this “p’shat” is still problematic, as until there is clarification there would be no afflictions that are tamay, and reading the verse as “clarifying between afflictions that should be declared tamay and those that should be declared tahor” brings us back to the same problem of there not being any afflictions that shouldn’t be declared tamay. However, if we re-categorize the types of cases, this difficulty disappears.

As noted earlier, every Jewish law (when there was a Sanhedrin) was determined from the top. I have discussed why the Torah lists these three categories of law on the “d’rash” level (and why the sub-categories were necessary); what about on the “p’shat” level? Why didn’t the Torah just say that all laws must be clarified by the Sanhedrin? Would we think that any laws wouldn’t need to be brought to the Sanhedrin for clarification?

Let’s start with blood. If we are unsure whether the blood is tamay or not, we have two options. We can either try to clarify the situation, or be “machmir” (stringent), and just treat it as if it’s tamay. By including the category of blood, the Torah is telling us that we should clarify the law, not just avoid having to by acting stringently. Although the laws of ritual purity cannot vary from city to city (as either something is tamay or it isn’t), contractual law can, as each party is agreeing to the specific stipulations of the contract. Can a society determine which laws should govern the commerce done within its borders? What about how it deals with those that violate the law? By including the category of court cases, the Torah is telling us that the same standards and rules must apply to everyone, and if a doubt arises about any law detail, it can’t be decided locally (even if all agree to such “arbitration”). Civil laws, criminal laws and ritual laws must be brought to the central authority, even if all agree to abide by the decisions of the local authority, and to be “machmir” if ritual laws come into doubt. What about ritual laws that don’t apply until the determination is made? Must they be brought to the Sanhedrin too, or can we put their determination on hold, much like we do when we remove the items from the house before the Kohain looks at it, or delay showing the Kohain a potential affliction until after Yom Tov? The Torah includes this category too, telling us that we must go to the Sanhedrin to determine whether blood is tamay or tahor (we can’t just be “machmir”), decide innocence or guilt in a court case (we can’t have different societal laws), and declare the status of afflictions, as we can’t leave any afflictions tahor if they really are afflictions and should be declared tamay. Rather, in all these cases, “you shall get up and go up” to the Sanhedrin for clarification.