NOTE: This is really long. I am sorry. But I really think it's interesting and being too brief would miss the fun part. Maybe I'll turn it into an article some day, iy"H. So skim it if you like, skip it if you must, but I hope you get soemthing out of it, whoever "you" are...Many have charged that the Gemara's alleged "derivations" of laws from Biblical verses are often more ex-post-facto justifications of laws whose "real" source (historically speaking, i suppose) is not the text of the Torah, but, for example, some pre-existing, un-explained tradition or a rabbinic value-judgement.
Often the Gemara subtley challenges the stated reasons or derivations for laws in the course of a discussion, but the perception remains that the Gemara itself believes that the laws come from the Torah text (some people think it's important to say "exegesis, not eisegesis" here...)
Today, I ran across a Gemara that I found interesting in light of this question: Are the biblical verses the source of the laws in question, or the justification for an outstanding rabbinic edict with its own fairly obvious reasons?
{NB: please pardon the moderately grim subject matter. Perhaps more on that at another time...}
תלמוד בבלי מסכת סנהדרין דף מה עמוד א
גמרא. תנו רבנן:
האיש מכסין אותו פרק אחד מלפניו,
ואשה שני פרקים, בין מלפניה בין מלאחריה,
מפני שכולה ערוה,
דברי רבי יהודה.
וחכמים אומרים:
האיש נסקל ערום,
ואין האשה נסקלת ערומה.
מאי טעמייהו דרבנן -
אמר קרא +ויקרא כ"ד+ ורגמו אתו.
מאי אותו?
אילימא אותו ולא אותה -
והכתיב +דברים ט"ז /י"ז/+ והוצאת את האיש ההוא או את האשה ההיא.
אלא מאי אותו -
אותו בלא כסותו,
הא אותה - בכסותה.
רבי יהודה אומר:
אתו בלא כסותו,
לא שנא איש ולא שנא אשה.
למימרא דרבנן חיישי להרהורא,
ורבי יהודה לא חייש להרהורא?
והא איפכא שמענא להו,
דתנן:
Our Rabbis Taught (in a baraita):
They cover the man (who is about to be executed) with a scrap of cloth in front,
and the woman with two scraps, both in front of her and behind her,
because she is all "ervah" (sexually inappropriate),
these are the words of Rabbi Yehudah.
And the Sages say,
the man is stoned naked,
but the woman is not stoned naked (ie, she is fully clothed, not minimally covered as Rabbi Yehudah would have it.)
What is the reason for the rabbis?
The text said: And they shall stone him" (Lev. 24).
What is (the meaning of) "him?"
If you will say, "him" but not "her," (ie, women are not stoned at all),
but (the exclusion of women from execution altogether is impossible because) it is written (Deut 16), "And you shall take out that man or that woman..." (In the context of execution).
Rather, what (is the purpose of the word) "him?"
"him" without his covering (clothing).
However, "she" - with her clothing.
Rabbi Yehudah says:
"Him" (means) without his covering -
(the law) does not differentiate between a man and a woman.
Is that to say that the Rabbis worry about "hirhur" (innappropriate sexual thoughts), and Rabbi Yehudah does not worry about hirhur?
But we have recorded their opinions int eh opposite way,
as it is taught in a Mishnah...
If we read the Gemara as one organic unit, we find something surprising. It gives a scriptural derivation for the Rabbis' ruling that women are executed clothed, but then proceeds to analyze the law as if the verse was not the reason. Instead, it assumes that the differential reasoning is based on considerations of sexual modesty, a conclusion one might easily draw from the Rabbis' position, but which seems at odds with the technical scriptural derviation. the Gemara seems to assume that the jurisprudential concerns of "hirhur" and the scriptural derivations function simultaneously as the "reason" for the law, even though only one can be its original motivation.
If we look at the passage in stages, the picture changes slightly.
The text of the actual Baraita is:
ואשה שני פרקים, בין מלפניה בין מלאחריה,
מפני שכולה ערוה,
דברי רבי יהודה.
וחכמים אומרים:
האיש נסקל ערום,
ואין האשה נסקלת ערומה.
The Baraita records only the positions of the Rabbis and Rabbi Yehuda, not the scriputral derivation. It is the Gemara itself (stam for the academics...) that steps in and asks, in Aramaic, "What is the reasoning..." This Baraita is quite similar to the Mishnah it follows, which reads:
תלמוד בבלי מסכת סנהדרין דף מד עמוד ב
משנה. היה רחוק מבית הסקילה ארבע אמות -
מפשיטין אותו את בגדיו.
האיש מכסין אותו מלפניו,
והאשה מלפניה ומאחריה,
דברי רבי יהודה,
וחכמים אומרים:
האיש נסקל ערום,
ואין האשה נסקלת ערומה.
When (the one about to be executed) was four cubits from the stoning-house,
they would stirp him of his clothes.
They cover the man in front,
and the woman in front and in back,
these are the words of Rabbi Yehudah.
But the Sages say,
The man is stoned naked,
but the woman is not stoned naked.
The only significant addition of the Baraita seems to be the explanation of Rabbi Yehudah's opinion:מפני שכולה ערוה. The woman is covered more than the man because she provokes inappropriate sexual thoughts. This reasoning seems to lead directly to the question "Is that to say...." regarding which side actually worries about "hirhur."
Thus far, I've laid out the following structure in the passage:
1 - Baraita which hints that the reasoning behind the rulings in the mishnah has to do with sexual thoughts.
2 - Scriptural justifications for the rulings of the Rabbis and Rabbi Yehudah that ignores the sexual-thoughts concern.
3 - Question by the Gemara that assumes the rulings are based on general opinions about sexual thoughts.
part #2, though it follows the Baraita, seems better suited to the mishnah, since in the mishnah does not hint at any reasons for the rulings and is thus ripe territory for a proposed scriptural derivation.
Why, then, does the Gemara choose to bring a Baraita that seems to illuminate the reasoning behind the mishnah, then discuss the rulings' scriptural bases as if the reasoning in the Baraita didn't exits, then go back and discuss the rulings as if the new, scriptural reasoning didn't exist?
One partial solution is to note a problem in the reasoning of the Baraita itself: the sex-related rationalle is brought up regarding Rabbi Yehudah, but it is the Rabbis who are more stringent about keeping the woman covered. If one scrap of cloth in front and one behind is sufficient to deal with the problem of "kulah ervah," why are the rabbi so much more stringent? This is where the verses come in. the Rabbis exempt women from the nakedness requirement altogether, and so don't even encounter the ervah problem, whereas Rabbi Yehudah, because he requires her to be naked, must deal with it.
I called this solution partial because, while it haldes the transition form #1 to #2, it does nto explain the transition form #2 to #2 - the Rabbi's reasoning seems to have nothing to do with "hirhur" - it is just a scripural exemption! Siilarly, Rabbi Yehudah, who does not believe there is such an exemption, does concern himself with the problem of
ervah, and, implicitly, of
hirhur! So, the question in #2 seems to ignore the derivations of part 2!
One might make various suggestions regarding redaction and confusion at this point, but that's no fun and not something I'm competent to do, and anyway it upsets
some people, myself often included.
I had some funky half-baked litrary-type thoughts which I'll get to, but first, a word from the Rishonim.
On one hand, Rashi tries to harmonize the drashot with the jurisprdential arguemnts: Later in the Gemara, the discussion assumes that being stoned naked hastens the death, and hence minimizes the pain of the victim. Rashi sees the Gemara's discussion as stemming from this assumption. Even if the Rabbis think a woman is technically exempted, according to their reading of the verse, from being stoned naked, why not institute such a rule so as not to draw out her suffering? The fact that the rabbis do not make such an enactment lead the Gemara to conclude that perhaps they are worried about sexual thoughts on the part of the witnesses, whereas Rabbi Yehudah is not. (This explanation is eventually rejected...) this harmonization works ok with the ideas, but not with the flow of the text. (It requires an idea only stated at the conclusion of the Gemara to be tactiyl assumed at its beginning...)
On the other hand, Tosafot and others claim that the scriptural derivations are simply thrown out. Their justification is two fold: First, the flow of the discussion ignores them, and, second, there are flaws in the derivations themselves which make them unviable as interpretations. This latter problem is elabvorated by Rabbenu Yonah with no clear resolution. From my perspective, their complaints against the derivations seem valid enough - if the word "oto" is already being used to derive "him without his clothes," it can't do "double-duty" and imply "him and not her," as the Rabbis would need it to. Thus, this verse can't be the source for their position, and we are left with the jurisprudential arguments that the sugya cites (in the part I left off above...).
Tosafot's critiques of the derashot are somewhat compelling, but my impression is their real motivation is the problem within the gemara. In other contexts, after all, they try and resolve apparent problems in derashot rather than throw out the baby with the bathwater...
Tosafot rejects the derivations so that the sugya can make sense and present a clear line of reasoning behind the various positions. However, I might suggest that the obfuscating derashot themselves are a rare moment of rabbinic self-awareness. There's nothing inherently wrong with them, and the Talmud is not bothered by the fact that they do not fit completely with the jurisprudential discussion. In fact, if we return to the 1-2-3 structure above, it seems that it's the derivations in #2 themselves that lead to the question in #3. The bottom line according to these derivations is that for the Rabbis, women are not stoned naked, whereas for Rabbi Yehudah, they are. Juse how naked (one covering or two) is not discussed. Thus, in this formulation, it makes sense to assume that the Rabbis position is more concerned with female nakedness than Rabbi Yehudah's, hence the question in #3. (If you recall, this question does NOT make so much sense following #1 directly...)
We are left with something curious: The Gemara assumes that the positions staked out by various scriptural machinations have underlying jurisprudential or conceptual reasons. Once someone takes one side in a scriptural debate, if that position also has an implie conceptual underpinning, we can presume his position on that conceptual issue in contexts outside of the ones dictated by these verses. That's pretty radical if you ask me.
On that note, I return to my original question: Which came first, the derashah or the ruling?
Shabbat Shalom
