Thursday, February 15, 2007

parshat Mishpatim: Leaning on His Staff as We Lean on Chazal

The playing field of parshanut always gets interesting when the simple meaning of a verse appears to be at odds with the halacha as decided in the gemara. Pashtanim, especially sensitive to preserving peshat as a separate and distinguished entity, yet at the same time committed to the truth, integrity and supremacy of halacha, must assay to resolve or harmonize the two. (A darshan is more able to say that this is a case of mikra yotzei midei peshuto, or that the true meaning is of course derash.}

How pashtanim go about this depends upon their respective outlooks regarding the interface between peshat and derash, and whether they consider them to be two separate entities. Seeing how different commentators deal with these issues might help clarify their methodology in this regard.

One such instance of a peshat / halacha divide appears, at first glance, to occur in parshat Mishpatim regarding someone who was injured in a fight. (In fact, this parsha is rich with such examples, but this is the one I am focusing on in this post.)

The pesukim state {Shemot 21:18-19}:

יח וְכִי-יְרִיבֻן אֲנָשִׁים--וְהִכָּה-אִישׁ אֶת-רֵעֵהוּ, בְּאֶבֶן אוֹ בְאֶגְרֹף; וְלֹא יָמוּת, וְנָפַל לְמִשְׁכָּב. 18 And if men contend, and one smite the other with a stone, or with his fist, and he die not, but keep his bed;
יט אִם-יָקוּם וְהִתְהַלֵּךְ בַּחוּץ, עַל-מִשְׁעַנְתּוֹ--וְנִקָּה הַמַּכֶּה: רַק שִׁבְתּוֹ יִתֵּן, וְרַפֹּא יְרַפֵּא. {ס} 19 if he rise again, and walk abroad upon his staff, then shall he that smote him be quit; only he shall pay for the loss of his time, and shall cause him to be thoroughly healed. {S}
This seems to suggest that once he gets up, even if he is still somewhat ill, the smiter is off-the-hook. It does not state, but one might conclude on a peshat level, that even if he then falls ill again and then dies, the smiter is still off the hook, once the smitee is able to walk, even though during this intervening period he is using a cane and is thus still somewhat ill. However, it does not state this explicitly, and in fact, I would argue, even on a peshat level, that all this means is that since he did not die, even though he is still sick for the rest of his life, the smiter is exempt from the death penalty. This might be obvious -- the victim did not die, so of course the smiter gets no death penalty -- but sometimes on a peshat level the text is this obvious and redundant.

However, given the first reading of the peshat level above (rather than my second one), it seems at odds with the gemara, and other sources, which discuss this. For example, Ketubot 33b. And for example, in Sanhedrin:

דף עח,א משנה המכה את חבירו בין באבן בין באגרוף ואמדוהו למיתה והיקל ממה שהיה ולאחר מכאן הכביד ומת חייב ר' נחמיה אומר פטור שרגלים לדבר:

דף עח,א גמרא תנו רבנן את זו דרש רבי נחמיה (שמות כא) אם יקום והתהלך בחוץ

דף עח,ב גמרא על משענתו ונקה המכה וכי תעלה על דעתך שזה מהלך בשוק וזה נהרג
אלא זה שאמדוהו למיתה והקל ממה שהיה ולאחר כך הכביד ומת שהוא פטור
ורבנן האי ונקה המכה מאי דרשי ביה מלמד שחובשין אותו ורבי נחמיה חבישה מנא ליה יליף ממקושש ורבנן נמי לילפי ממקושש מקושש בר קטלא הוא ומשה לא הוה ידע קטליה במאי לאפוקי האי דלא ידעינן אי בר קטלא הוא אי לאו בר קטלא הוא ורבי נחמיה יליף ממגדף דלא הוה ידע אי בר קטלא הוא וחבשוהו ורבנן מגדף הוראת שעה היתה כדתניא יודע היה משה רבינו שהמקושש במיתה שנאמר (שמות לא) מחלליה מות יומת אלא לא היה יודע באיזו מיתה נהרג שנאמר (במדבר טו) כי לא פורש וגו' אבל מגדף לא נאמר בו אלא לפרש להם על פי ה' שלא היה משה יודע אם הוא בן מיתה כל עיקר אם לאו בשלמא לרבי נחמיה היינו דכתיבי תרי אומדני חד אמדוהו למיתה וחיה וחד אמדוהו למיתה והקל ממה שהיה אלא לרבנן תרי אומדני למה לי חד אמדוהו למיתה וחיה וחד אמדוהו לחיים ומת ורבי נחמיה אמדוהו לחיים ומת לא צריך קרא שהרי יצא מבית דין זכאי תנו רבנן המכה את חבירו ואמדוהו למיתה וחיה פוטרין אותו אמדוהו למיתה והקל ממה שהיה אומדין אותו אומד שני לממון ואם לאחר כן הכביד ומת הלך אחר אומד האמצעי דברי רבי נחמיה וחכמים אומרים אין אומד אחר אומד תניא אידך אמדוהו למיתה אומדין אותו לחיים לחיים אין אומדין אותו למיתה אמדוהו למיתה והקל ממה שהיה אומדין אותו אומד שני לממון ואם לאחר כן הכביד ומת משלם נזק וצער ליורשים מאימתי משלם משעה שהכהו וסתמא כרבי נחמיה:

Thus, there appears to be a dispute between Rabbi Nechemia and the Sages. Rabbi Nechemia understands {darash -- expounds} as follows: אִם-יָקוּם ... וְנִקָּה הַמַּכֶּה -- "if he rise again, [and walk abroad upon his staff,] then shall he that smote him be quit." Would it enter your mind that this one is entirely fine, walking in the street, and this one {the smiter} is killed? Rather, this is one who they diagnosed him that he would die, and then he got better than what he was, and then he got worse, and died, then he {the smiter} is exempt.
Meanwhile, the Sages do not say this, but rather וְנִקָּה הַמַּכֶּה means that he goes out of prison, where they placed him. {Rabbi Nechemia gets the prison from some other derivation.}

That is why the Sages argue in the Mishna with Rabbi Nechemiah and state that in such an instance, the smiter gets the death penalty.

What do the Sages do with this verse that states אִם-יָקוּם וְהִתְהַלֵּךְ בַּחוּץ, עַל-מִשְׁעַנְתּוֹ--וְנִקָּה הַמַּכֶּה?
Well, Mechilta and Targum understand that this means "he walks under his own strength," and thus refers to a case where he becomes entirely better. Thus, the pasuk is not talking about the case in the Mishna at all. This seems to agree with the Sages in the gemara.

This seems difficult to say on a peshat level, given that וְהִתְהַלֵּךְ בַּחוּץ עַל-מִשְׁעַנְתּוֹ suggests that he is still ill, and is using a cane to get around. However, as I noted above, saying this does not mean we must say like Rabbi Nechemiah. We could read this like the opinion Rabbi Nechemiah rejected, which would implies he is entirely well, or we could read this as referring to a case where is still ill, in which case the smiter must pay medical bills and so on so long as the man is ill, but is exempt from the death penalty.

There is thus what to resolve with the apparent peshat level - at the least the Mechilta which translates "on his staff" as "on his own strength," and at the most whether one administers the death penalty to someone the smiter when the person got a little better and then fell ill again and died.

How do different pashtanim resolve this?

Rashi states:
on his support, with his health and his strength. -[From Mechilta].
the assailant shall be cleared Now would it enter your mind that one who did not kill should be killed? But rather, [the Torah] teaches you here that they imprison him until it becomes apparent whether this one [the victim] will get well, and this is its meaning: When this one gets up and walks on his support, then the assailant shall be cleared, but before this one [the victim] gets up, the assailant shall not be cleared. -[From Keth. 33b]
Thus, Rashi combines the Mechilta and the gemara to claim that this refers to where the person became entirely better. The implication is that in such a case, if the victim falls ill again and dies, it is unrelated to the assault and the assailant is free. But if it he was still ill, walking on a cane, and the victim subsequently got sicker and died, then the assailant would get the death penalty. In terms of the assailant shall be cleared, he understands this to mean that he is let loose from prison, just as the Sages state. This follows a pattern in which Rashi generally presents Chazal's halacha and derash as the (simple) meaning of the pesukim. He does not betray any difficulty in resolving it with a meaning of "staff."

Ibn Ezra says that about עַל-מִשְׁעַנְתּוֹ that we rely upon Chazal in their explanation.He clearly knows that others might interpret it otherwise, e.g. Karaaites, that the cane means the person is sick. He gives a good explanation of what Chazal may have meant, such that they were speaking peshat: "We rely on Chazal, who explain that "on his staff" means that he is not leaning on another person as is the way of sick people {J: perhaps on might suggest: but is rather using his regular walking stick}, but rather, on himself." He also understands the assailant shall be cleared as letting the smiter out of prison.

Ramban cites Rashi and Ibn Ezra, and then suggests that a simple reading might work well with the halacha. From other pesukim, he shows that weak people use walking sticks. This person's wound healed, but still he is in recovery. But sick people do not go outdoors until their wound is healed and they are entirely out of danger. If he walked with his walking stick indoors, then he is still sick and if he sickens and dies, the striker receives the death penalty. However, if he walks with his stick outside, then even though he is still weak he is out of danger, and if he later sickens and dies then the striker would not receive the death penalty.

Shadal also chimes in on this dispute:

על משענתו : על מקלו, מיד ינוקה המכה, אף אם אח"כ ימות המוכה, כי יש לתלות שהוא גרם לעצמו שלא נשמר כשהתחיל להבריא, ור' ישמעאל (במכילתא שם ו') דורש כמין משל על בהטענתו, על בוריו, וזה חומרא.

על משענתו - on his staff. Then immediately, the smiter is cleared, even if afterwards the victim dies, for one can suggest that he {the victim} caused it himself, for he did not watch himself carefully when he began to get better. And Rabbi Yishmael {in the Mechilta} makes a derasha patterning על משענתו with a shin on על בהטענתו, with a tet, meaning that "on his own strength," and this is a stringency.
Thus, Shadal distinguishes between a derash and peshat meaning of the word, and suggests that the peshat is somewhat at odds with the practiced halacha, because a derasha imposed a stringency by offering a reinterpretation. Either Shadal meant that by "walking outside with a staff" the sick person brought it upon himself (unlikely), or the more likely, "walking outside with a staff" means that the person got better, and then if the person got sicker we say he must have brought it upon himself. What he would say in terms of the dispute between Rabbi Nechemiah and the Sages -- well, we can guess.

There is also the resolution I gave above -- that the peshat and derash coexist on different strata, and the definition of each of these phrases need not interact between strata. Thus, on a peshat level we never speak of one who subsequently sickens and dies, but rather that he is ill for a period of time, during which he receives lost wages and doctor bills. Meanwhile, on a derash level we can raise questions such as the obviousness that the smiter would not receive the death penalty in such a situation, and then interpret it to refer to a prison term and/or to refer to cases where the person is sick or healthy to a specific extent. These strata coexist and both are true on a halachic level.

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