This article is arranged according to the following outline:
Substance of Bible Exegesis in Jewish Law: Creative Interpretation and Integrative Interpretation
Halakhic Creativity by Means of Interpretation (Midrash)
Evidence of Creative Interpretation in Ancient Halakhah
Midrash and Roman Law Interpretatio
Different Literary Forms for Creative and Integrative Interpretation
Biblical Exegesis and its Place in Formulating Halakhah
Development of Bible Exegesis
UNTIL HILLEL THE ELDER
R. NEHUNYAH B. HA-KANAH AND R. NAHUM OF GIMZO
R. ISHMAEL AND R. AKIVA AND THEIR ACADEMIES
R. ELIEZER B. YOSE HA-GELILI
IN THE AMORAIC PERIOD
IN THE POST-TALMUDIC PERIOD
Thirteen Middot of R. Ishmael
DAVAR SHE-HAYAH BA-KELAL VE-YAẒA MIN HA-KELAL
DAVAR HA-LAMED ME-INYANO, DAVAR HA-LAMED MI-SOFO
SHENEI KETUVIM HA-MAKHHISHIM ZEH ET ZEH
INTERPRETATION OF WORDS AND PHRASES
INTERPRETATION OF THE HALAKHAH
Use of the Principles of Bible Exegesis for Interpretation of the Halakhah
Restrictive and Expansive Interpretation
Interpretation of the Halakhah in Post-Talmudic Times
INTERPRETATION OF DOCUMENTS
Doreshin Leshon Hedyot ("interpreting human speech")
Ha-Kol Holekh Aḥar ha-Taḥton ("all according to the latter reference")
Yad Ba'al ha-Shetar al ha-Taḥtonah ("the holder of a deed is at a disadvantage")
Interpretation le-Fi Leshon Benei-Adam ("according to the common usage of the people")
Interpretation of Contracts
INTERPRETATIONS BASED ON ASSESSING THE PARTIES' INTENT.
PRESUMPTION OF A DOCUMENT'S VALIDITY.
INTERPRETATION IN ACCORDANCE WITH CONTEXT AND CUSTOM.
INTERPRETATION OF TAKKANOT HA-KAHAL
Entrustment of Interpretative Authority
Interpretation of Takkanot le-Fi Leshon Benei Adam ("in accordance with their common usage")
Interpretation in Accordance with the Language of the Takkanah
Circumstances in Which the Background to a Takkanah and Its Motivating Factors May Be Taken into Account
Conflicting Provisions and Ambiguity in the Text
Judicial Interpretation – Judgment in Perfect Truth
In Jewish law interpretation is called Midrash – a word deriving from the verb darosh, meaning study and investigation of the inner and logical meaning of a particular text as opposed to its plain and literal reading. The word darosh is also used in the same sense to denote investigation of the true and "unrevealed" position as regards a particular factual event (Deut. 13:15; "Ve-darashta ve-ḥakarta ve-sha'alta heitev" – "you shall investigate and inquire and interrogate thoroughly" – hence the term derishah va-ḥakirah with reference to the interrogation of *witnesses). For the act of interpretation the word talmud is sometimes used (e.g., Sanh. 11:2; cf. Avot 4:13), and also the word din (e.g., Mak. 5b). In the field of the halakhah, the concept of Midrash has a meaning similar to interpretatio in Roman law and to "interpretation" in English law. The term parshanut was originally used in the sense of commentary (i.e., elucidation), generally amounting to a rephrasing or translation of the text into simpler and more easily understood terms; however, in the course of time the term parshanut also came to be employed in Jewish law in the sense of interpretation, and at the present time has both meanings. The interpretative process is often executed with the aid of fixed rules by which the exegete is guided; these are "the middot by means of which the Torah is interpreted" (see below). The process of interpretation began with Midrash of the Torah (i.e., Bible exegesis) and was followed by Midrash of the halakhah, i.e., of the Mishnah, both Talmuds, and post-talmudic halakhic literature (see below). In addition there evolved, from very early days, a system for the interpretation of various legal documents (see below), and after the redaction of the Talmud for the interpretation of communal enactments also (takkanot ha-kahal; see below).
A reading of halakhic literature reveals that very many halakhot are stated in midrashic form, i.e., the particular halakhah is integrated into and interwoven with a biblical passage (this
(a) in order to facilitate recall of a rule which, in ancient times, had never been reduced to writing but studied orally and hence had to be studied together with the relevant biblical passage;
(b) in order to stress the integral connection between the Oral and the Written Law, since the latter constituted the basic norm of the entire halakhic system. Another view is that Bible exegesis is much more than a mere literary device for studying the halakhah; on the contrary, the biblical passage into which the halakhic rule is integrated constitutes at the same time the source of the rule; i.e., the rule was created out of the study and examination of the particular passage and without such an interpretation of the passage the rule would never have existed at all. Some scholars suggest that at first Midrash served as a source for the evolution of the law and that in later times it ceased to serve this purpose, while other scholars take the contrary view.
It is clear that even the scholars who hold that Bible exegesis served as a source for the evolution of the law do not regard that fact as meaning that in every case of Bible exegesis the halakhic rule in question necessarily evolved from such exegesis. Thus as regards a certain section of the biblical expositions, it is specifically stated that they are in the nature of *asmakhta be-alma (i.e., simply allusion to a particular passage; see, e.g., Ber. 41b; Er. 4b: "They are but traditional laws for which the rabbis have found allusions in Scripture," cf. Tosef. Ket. 12:2; TJ, Git. 5:1). Thus the scholars emphasize that the halakhot do not derive from the Bible exegesis, but from some other legal source of the halakhah, and are merely supported by allusions to particular biblical passages. This is also so in the case of numerous other halakhot arrived at by way of interpretation; even though they are not said to be in the nature of asmakhta alone, it cannot be determined with certainty whether in each case they derived from the particular interpretation of the biblical passages concerned, or whether they evolved from some other legal source and were merely integrated into the relevant biblical passages.
It appears that from the inception of the halakhah and throughout its history, Midrash has served as a creative source of Jewish law and as an instrument in its evolution and development (see Yad, introd. and Mamrim 1:2). In point of time and importance, it constitutes the primary legal source of Jewish law (see *Mishpat Ivri). Throughout the history of the halakhah, scholars had to face the two fold problem of (a) reconciling difficulties emerging from the study of biblical passages, and (b) resolving new problems arising in daily life, particularly in consequence of changed economic and social realities.
The evolution of new halakhot was a natural outcome of the use of Midrash by the scholars in their efforts to overcome difficulties in the elucidation of Scripture, and Midrash led to great creativity, especially when applied to the solution of new problems. Although other means of solving such new problems were available (e.g., through the enactment of takkanot), the scholars nevertheless first and above all sought to find the solutions in Scripture itself, by endeavoring to penetrate to its inner or "concealed" content. In the eyes of the scholars Midrash was also to be preferred over the takkanah as a means of resolving new problems: the takkanah represented intentional and explicit lawmaking, designed to add to, detract from, or otherwise change the existing and sanctified halakhah, whereas in the case of Midrash the new halakhah derived from the scriptural passage concerned was not designed to add to the latter and certainly did not stand in contradiction to it. The link between the new halakhah and the Written Law was seen as a natural one of father and offspring, and the halakhah evolved from Scripture was, as it were, embedded in the latter from the beginning. Hence it may reasonably be assumed that the halakhic scholars would first have turned to Midrash in their search for solutions to the new problems that arose, and only when this offered no adequate or satisfactory answer would they turn to other legal sources of the halakhah.
From early tannaitic sources it may be inferred that Midrash already served as a creative legal source of the halakhah. Thus the description is given of how the judges would deliberate the relevant scriptural passage in each case before they gave judgment: "And if he had committed murder, they deliberated the passage dealing with murder; if he had committed incest, they deliberated the passage dealing with incest" (Tosef. Sanh. 9:1); similarly as regards the legal order of succession. The Pentateuch prescribes the order as son, daughter, brother, brothers of the father, and then the nearest kin of the deceased (Num. 27:6–11); the father is not mentioned as an heir but this omission is rectified in the Mishnah, where his place in the order is determined as falling after the children of the deceased and before the latter's brothers (BB 8:1). The scholars arrived at this result by interpreting the above-mentioned pentateuchal passage in this manner: "Ye shall give his inheritance unto his kinsman that is next to him of his family, 'that is next to him' – the nearest relative takes preference." Even though the above is only enjoined after the brothers of the deceased and
In Roman law also and by a similar process in other legal systems – at the beginning and after the Twelve Tables – interpretatio fulfilled an eminently creative function which, according to R. Sohm (The Institutes (19703), 55f.), evolved and even changed the law without affecting the written letter of it. The purpose of interpretatio in Roman law has been described by Dernburg: "It is true that the content of a law should be expressed in the document wherein it is contained, but it is not necessary that this content must be derived directly from the words of the law; often the general wording of a law leads one to conclusions that are not expressed in so many words in this law, but which nevertheless are undoubtedly the correct conclusions to be drawn there from; interpretatio must there for erecognize as an authoritative conclusion from the law, not only that which derives from what is explicitly and directly stated in the law but also that deriving from what is indirectly stated therein; this may be referred to as the 'concealed content' of the law" (H. Dernburg, Pandekten, 1, pt. 1 (19006), 73).
The existence of the two forms of Midrash, differing in function and objective, also led to a differentiation in their literary expression. When the object of the interpretation was not to create halakhah but simply to integrate existing halakhah into a scriptural verse, this could be achieved even by means of forced and symbolic modes of interpretation – such as analysis of seemingly superfluous words and letters – since this sufficed for the integrative purpose. Such artificial associations also represented an accepted literary device in other ancient civilizations (see S. Lieberman, in bibl., p. 62f., 77f.; in recent generations efforts have been made to explain these symbolic modes of interpretation in an orderly and systematic manner and much was done in this field by Meir Loeb *Malbim). On the other hand, when the interpretation was made in order to evolve a particular halakhah, this was generally effected solely through rational modes of interpretation in the wider sense of the term, i.e., within the framework of the "concealed content" of the scriptural verse (although there are also instances in which halakhot were evolved through symbolic modes of interpretation, and this was particularly the case in the academy of R. Akiva; see, e.g., Sanh. 51b and see below).
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Sources: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.