Now these are the laws... Is there room and legitimacy for a peshat commentary? (rc)

Parshat Mishpatim, running commentary, part i

א וְאֵלֶּה, הַמִּשְׁפָּטִים, אֲשֶׁר תָּשִׂים, לִפְנֵיהֶם.

As we turn to parshat Mishpatim, what do we do? Is there room for a peshat-based interpretation of legal sections of Torah? How can we put forth such a commentary? If it is identical to the (often midrashic) interpretation of Chazal, then it is superfluous. If it differs from the interpretation of Chazal, is it heretical? Is it Karaitic to do so?

I know others face this difficulty for narrative sections. Some major figures (e.g. Ran, Alshich) maintain that it is heretical to diverge from midrash aggadah. And others maintain, based on a Rashi that ואני לא באתי אלא לפשוטו של מקרא coupled with declarations that Rashi's commentary was written with Ruach HaKodesh, that Rashi is by definition peshat, such that there can be no other true peshat commentary. For midrash aggadah and even peshat interpretations, this does not trouble me at all. We have greats such as Shmuel Hanaggid upon whom to rely. Shmuel Hanaggid declares that one, even post-Talmudically, may argue on midrash aggadah in interpretation of pesukim, as this is not mipi hagevurah but the private opinions of those who said it. We have those who will allegorize midrashim (including some I feel were not intended allegorically). We can point out that there is even dispute within the midrash aggada, such that one was not decided upon firmly. And we can follow the lead of the classic medieval commentators, for we may readily demonstrate that they will give commentaries at odds with traditional midrashim, such that the peshat and the midrash could not be physically true simultaneously. For example, the midrashic interpretation of kubata as womb, that Pinechas pierced Zimri and Cosbi's private parts simultaneously, while they were engaged in the act, when compared with Ibn Ezra's explanation as Kubata as Cosbi's tent, such that he killed her in her tent after killing Zimri. And not only that of medieval pashtanim, but even darshanim, who suggest midrashic explanations which are at odds with the existing and established midrashim. By that, I intend medieval midrashic works such as Bereishit Rabbati by Rav Moshe Hadarshan. Indeed, on narrative sections, there is ample precedent. (On the other hand, a certain prominent YU Rosh Yeshiva who shall remain nameless reacted to an argument similar to this with "who says I am so happy with the medieval pashtanim?")

But what about legal sections? Especially as many have a tendency nowadays to equate "peshat" with "truth" and "midrash" with "misguided nonsense," how can we advance a peshat commentary if it is at odds with Chazal's interpretation, and if it is at odds with established halachah?

My answer is that, while it may make us feel uncomfortable, of course we can. First of all, we have precedent in e.g. Rashbam, who explains vayhi erev vayhi voker as night following day, and yet of course he kept normative halacha, including Shabbos, like a frum Jew. We have Ibn Ezra explaining legal sections at odds with Chazal (see e.g. "cutting off her hand"), yet arriving at more or less the same conclusions practically. We have Rashi sometimes (IMHO and IIRC) choosing the legal interpretation of a pasuk which works better on the level of peshat, rather than the one that we decide upon lehalacha.

See what Rashbam writes in his introduction to Mishpatim, and consider what is "bothering him":

ואלה המשפטים -
ידעו ויבינו יודעי שכל כי לא באתי לפרש הלכות אף על פי שהם עיקר כמו שפירשתי בבראשית, כי מיתור המקראות נשמעים ההגדות והלכות ומקצתן ימצאו בפירושי רבינו שלמה אבי אמי זצ"ל.
ואני לפרש פשוטן של מקראות באתי ואפשר הדינים וההלכות לפי דרך ארץ. ואעפ"כ ההלכות עיקר, כמו שאמרו רבותינו: הלכה עוקרת משנה

I have several "excuses" for engaging in a peshat commentary with fresh eyes, aside from the aforementioned idea that some medieval commentators engaged in it.

1. "Peshat" is different from "truth". Peshat is a methodology, just as derash is a methodology. There might be several different peshat interpretations of a given text, and several different derash interpretations of a given text. One might (or might not) argue that only one ultimately reflects Authorial intent, but regardless, all of these are peshat, by my definition.
   
   
2. Such analysis, even if it does not result in practical halachah, might be considered Talmud Torah. What sort of message does the text convey to us when we look at it from this perspective and using this methodology? How about from that perspective and that methodology?
   
   
3. Indeed, not only Karaites and Sadducees engaged in interpretation contrary to what is decided halacha. Tannaim and in some cases Amoraim engaged in this as well. And their interpretations sometimes occur on a peshat level and sometimes on a derash level. While these interpretations might not form practical halacha, there is a value in these interpretations, of Elu veElu Divrei Elokim Chaim, in that one is engaging in Talmud Torah when learning those opinions. Perhaps by extension, our own grappling with the text, from the same perspective the Tannaim (or earlier sages) engaged with the text, is also considered Talmud Torah, even if ultimately these interpretations are not to be taken as halacha.
   
   
4. Considering the theme/message of the text from this other perspective can yield some interesting religious insights, even if ultimately the interpretation is not lehalacha.
   
   
5. On the other hand, perhaps one can argue this is being megaleh panim baTorah shelo keHalachah. But there are different interpretations of this prohibition. And see below for a partial treatment.
   
   
6. If I claim that something is "peshat," does that mean that I am stating it is true and the traditional halacha is false? No. Firstly because there may be multiple "peshat" interpretations, as above. And secondly, because who says that "peshat" determines halachah? There is a famous statement that אין מקרא יוצא מידי פשוטו. But I believe that this is a general belief that this is the case, while in any specific case, if "the" peshat was deemed to be against what was known to be the halacha, then this is an exception to the rule, and the mikra was yotzei miydei peshuto. And they did not know these exceptions via halacha leMoshe miSinai (as was suggested to me by Rav Schachter in interpreting these various gemaras) but rather if one gives a peshat level which differs from the midrashic level and undermines it, then it is an exception. Thus, if we claim that "lehakim shem hames al nachalaso" refers to actually naming, then the gezeira shava comes and undermines that peshat entirely. In most cases, the peshat was understood in line with the derash. But, if we suddenly argue on the traditional peshat and say that some other interpretation is the peshat, and that peshat is not in line with normative halacha, we say that מקרא יוצא מידי פשוטו, even as this is the "peshat".
   
   
7. Furthermore, as we find on occassion in Shadal, the non-traditional peshat interpretation can lead to the same practical halacha, just via a slightly different means.
   
   
8. Also, from my own experiences, I find that even where Chazal offer what seem farfetched dershot to derive certain halachot -- (some midrashic methods are almost peshat-based, while others may seem like quite a stretch) -- a close analysis of the underlying text, or sometimes of a nonlocal text, can yield the same results using a peshat methodology. Not necessarily is it the only possible peshat interpretation, but it often is a quite plausible reading in the text that I would not have thought of otherwise. That does not mean that the derasha is an asmachta, with the result of it being deRabbanan rather that deOraysa. Rather, it is a useful mnemonic for extracting the DeOraysa, which otherwise might be difficult (though not impossible) to arrive at using peshat methodology.
   
   
9. In some cases, demonstrating how one can arrive at these same conclusions from a peshat perspective is interesting, can strengthen Emunas Chachamim, and may be Talmud Torah.
   
   
10. And some of these peshat interpretations may be surprising, but I believe are true. It is an involved discussion, but as an example, I believe that the peshat interpretation of ayin tachas ayin is monetary payment; that this is quite likely the Authorial intent, and does not reflect any attempt by Chazal to overturn stringent Biblical law. This because "peshat" is not always the most literal reading -- an overly literal reading is usually derash -- and because we must recognize idioms where they occur and understand their meaning based on how they are used in various contexts.
    
    
11. Finally, even if I were to claim my "peshat" was "true", normative halacha in interpreting these is decided via the classic interpretations of the Tannaim and Amoraim. This because of pesukim which state this:
    
    ח כִּי יִפָּלֵא מִמְּךָ דָבָר לַמִּשְׁפָּט, בֵּין-דָּם לְדָם בֵּין-דִּין לְדִין וּבֵין נֶגַע לָנֶגַע--דִּבְרֵי רִיבֹת, בִּשְׁעָרֶיךָ: וְקַמְתָּ וְעָלִיתָ--אֶל-הַמָּקוֹם, אֲשֶׁר יִבְחַר יְהוָה אֱלֹהֶיךָ בּוֹ. ט וּבָאתָ, אֶל-הַכֹּהֲנִים הַלְוִיִּם, וְאֶל-הַשֹּׁפֵט, אֲשֶׁר יִהְיֶה בַּיָּמִים הָהֵם; וְדָרַשְׁתָּ וְהִגִּידוּ לְךָ, אֵת דְּבַר הַמִּשְׁפָּט. יוְעָשִׂיתָ, עַל-פִּי הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ, מִן-הַמָּקוֹם הַהוּא, אֲשֶׁר יִבְחַר יְהוָה; וְשָׁמַרְתָּ לַעֲשׂוֹת, כְּכֹל אֲשֶׁר יוֹרוּךָ. יא עַל-פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ, וְעַל-הַמִּשְׁפָּט אֲשֶׁר-יֹאמְרוּ לְךָ--תַּעֲשֶׂה: לֹא תָסוּר, מִן-הַדָּבָר אֲשֶׁר-יַגִּידוּ לְךָ--יָמִין וּשְׂמֹאל.
    
    See the case of the Tannur shel Achnai.
    

With this lengthy introduction, who knows if this year we will even get to any interpretations! And this is a first run. Perhaps later I will go back and revise. There is plenty to read in Rashbam, in Ibn Ezra, and in Aharon ben Yosef the Karaite. My intent here is to give a peshat commentary as it strikes me.

To begin,

א וְאֵלֶּה, הַמִּשְׁפָּטִים, אֲשֶׁר תָּשִׂים, לִפְנֵיהֶם.

וְאֵלֶּה -- this is a continuation of the previous, as per Rashi. Not only the 10 commandments were said at Sinai, as previously discussed at the end of Yisro, but also the laws of making the altar, within the araphel. And these could include the "dry" laws as well. Indeed, more than וְאֵלֶּה, the word תָּשִׂים conveys to me an act of law-giving.

Still, it is somewhat strange that these particular laws are given at Har Sinai? Mah inyan avdut etzel har Sinai? Well, we can come up with some answers for that, and there are even midrashim dealing with the relationship here. But even the theme of the Aseres Hadibros was respecting other people's property as well as other people's humanity. Many of these laws are not dry, but reflect the balancing act between these different values. And accepting the Torah is not just the big, exciting mitzvos, but even the dry material which extends to monetary laws.