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If we use one of Rabbi Yishmael's 13 principles of interpreting the Torah to learn from a Torah law (de'oraiso), does the inferred law also have the status of a de'oraiso?

(Related: Where can I find examples of R. Yishmael's 13 talmudic rules?).

Are any of the 13 principles more effective in transferring de'oraiso character? (Since Gzeira Shava is a tradition from Sinai (see related question) I might have thought it would be more effective.)

  • Can you define what you mean by "Deoraisa"? The rambam might have called these "Divrei Sofrim" but still have employed Safek LeChumra with them, for instance. – Double AA Dec 31 '15 at 19:47
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    @DoubleAA to clarify the Rambam's view (If I understand it correctly). Things which are from Sinai are immutable. By applying the 13 principles of R. Yishmael, one can generate new laws that were not transmitted at Sinai. In this sense, they are not D'orayta, and therefore can be annulled by a later Sanhedrin that disagrees with the first's application of the principles. – mevaqesh Dec 31 '15 at 21:04
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    What do you mean "to learn from a Torah law"? Do you mean an added detail in the first law? Or perhaps an entirely new law? Or something else? – mevaqesh Dec 31 '15 at 21:10
  • @DoubleAA דאורייתא כולל את כל הדינים שנמסרו למשה רבנו בהר סיני. כלומר הן דינים הכתובים בתורה (במפורש או שנלמדים מפסוק) והן דינים שהם "הלכה למשה מסיני" כלומר תורה שבעל פה. (from here ) – Avrohom Yitzchok Dec 31 '15 at 21:14
  • @mevaqesh I do not want to limit what is learnt from the Torah law. But an example of a new law would be eating a shiur of bread in the sukkah on the first night of Sukkos which I believe is learnt from a Gzeira Shava. – Avrohom Yitzchok Dec 31 '15 at 21:17
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The rules of derashah are used in two ways:

The "real" way, derashah, does produce deOraisos -- actual Torah law.

Even if one follows the Rambam, Mamrim 2:1, that derashos could be invented/discovered -- let's just say "utilized" -- for the first time centuries after Sinai. And that another court may choose not to use it. One example, not given by the Rambam, is that according to Ruth Rabba, the derashah that only a male Moabite convert is restricted from marrying into the Jewish people, but a woman may, was first used by Boaz. Which then makes the closer relative's reluctance to marry her very understandable. Maybe Boaz erred?

This is not the usual understanding. Typically we follow the majority of rishonim, that while all of the deOraisos were given in Sinai, some were recorded in the text, some were hinted in the text via derashah, and some are halakhos leMoshe miSinai [laws given to Moses from Sinai]. (Understood to mean that either are not in the text at all or we forgot how they connect to their source verse, but every deOraisa does connect somehow. The latter opinion being that of the Malbim, intro. to Vayiqra.)

Thus either every derashah was given at Sinai alongside the laws, or they are rhetorical devices utilized later to support laws that were given at Sinai and thus already known. For example, to help decide in a dispute among valid interpretations of what was given in Sinai, which one should become law.

Then there are also asmachtos, connections, where the rabbis find a connection between a rabbinic law and the text of the chumash. According to the typical explanation (eg the Rambam's introduction to Mishnah, the Kuzari 3:73), this is done for mnemonic reasons, or to impress on the masses the import of the law.

According to the other opinion (Raavad Mamrim 2:9, Ritva Rosh haShanah 16a), these are laws Hashem only suggested to the court, something they may wish to enact some day, as needed. But since they are suggestions, and not actually legislated until the court decided to, the resulting laws are rabbinic.

Tangentially, there are other lists of rules. Hillel made a science of derashah, which until then were used without an overall theory and system, and noted the body of existing derashah fits 7 rules. R’ Yishma’el and R’ Aqiva each broke down those rules into subcategories. Because of differences in approach, R’ Yishma’el’s exposition yielded 13 laws, R’ Aqiva’s, 19. Rabbi Eliezer ben R Yosi haGelili later suggest 32. But these are taxonomies, not differences in actual content. You will find Rabbi Aqiva using one of Rabbi Yishmael's rules (eg kelal uperat) or Rabbi Yishmael using one of Rabbi Aqiva's (such as ribui umi'ut). The latter is far less common, but that's a topic in itself.

In any case, I mention this debate as an opportunity to point out that it is not evidence that derashos necessarily post-date Sinai, as the rules discussed describe sets of existing "data" after the fact.

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    "could be invented/discovered" these two are opposites! make up your mind. Rambam holds the former, indeed, emphasizes this fundamental point... – mevaqesh Jan 1 '16 at 18:19
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    " Typically we follow the majority of rishonim, that while all of the deOraisos were given in Sinai, some were recorded in the text, some were hinted in the text via derashah". How did you decide that "we" dont follow the Rambam. Who is "we" anyway. What does it even meant to follow him in this historical quesstion? – mevaqesh Jan 1 '16 at 18:20
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    " The latter opinion being that of the Malbim" Is the Malbim meant to be proof against the Rambam. It was only in Malbim's generation when to fight haskalah a new body of literaurue arose, e.g. him, S.R. Hirsch, and Haktav VeHakkabalah connectim the Oral Law to the Written Law. These are a clear departure from traditional Jewish literature on the topic. – mevaqesh Jan 1 '16 at 18:23
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    Raavad is not saying that God suggested this to the court (whatever that would mean). Rather that courts are divibely inspired. Raavad uses such language about himself, and indeed it was popular among literaure of the day to reference "divine inspiration". As far as I can tell, there is no difference between him and the Rambam regarding asmachtot. It seems incorrect to lump him together with the Ritva. – mevaqesh Jan 1 '16 at 18:27
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    Re last paragraph. If you mean Rambam holds derashot are from Sinai, guess again. – mevaqesh Jan 1 '16 at 18:30
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Rambam Sefer Hamitzvos, Principle 2 is that in order to count the 613 biblical obligations and prohibitions we:

Do not include laws which are derived from one of the Thirteen Principles of Torah.

Exegesis (at the linked site):

Every word and letter in the Torah is exact, and the Sages extrapolated many laws from an extra (or missing) word or letter, or a particular sequence which the Torah chooses to use. Nevertheless, unless the Sages explicitly say that a particular law that they derived is categorized as biblical, it is not counted as part of the 613.

So the answer to the question seems to be that the inferred law has the status of a de'oraiso only if the Sages explicitly say so.

(It sounds like a paradox.)

Thanks to @mevaqesh.

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    It should be noted that the Ramban in Shoresh Sheni strongly objects to the implication that laws derives from drashos are not doraisa. – robev Jul 5 '17 at 23:49
  • Following @robev’s earlier comment, I believe the Ramban’s dissenting opinion (indeed, he gives the Seder a glowing haskamah at the end, except for that one shoresh to which he strongly objects) is such a strong opinion that this answer is severely lacking without it. While we’re at it, Rav Chaim has a piece in... Not sure where it is (can get back to you if you’re interested) in which he goes through their debate. – DonielF Dec 3 '17 at 2:56

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