We Don't Pasken from the Gemara (full article)

Here is my Jewish Link article from this past Shabbos:

A brayta on Bava Batra 130b seems to declare that we don’t rule from a straight reading of the Gemara. Thus: תָּנוּ רַבָּנַן: אֵין לְמֵדִין הֲלָכָה לֹא מִפִּי תַלְמוּד, וְלֹא מִפִּי מַעֲשֶׂה, עַד שֶׁיֹּאמְרוּ לוֹ הֲלָכָה לְמַעֲשֶׂה. שָׁאַל וְאָמְרוּ לוֹ הֲלָכָה לְמַעֲשֶׂה – יֵלֵךְ וְיַעֲשֶׂה מַעֲשֶׂה, וּבִלְבַד שֶׁלֹּא יְדַמֶּה. We don’t deduce “halacha” from “Talmud”, nor “Ma’aseh”, until they tell him “Halacha leMa’aseh.” It is unclear what this practically means, because we need to define each of these technical terms. This seems like a source for the common sentiment that “we don’t pasken from the gemara¹”. 

There are several girsological variants of this. First, the Vilna Shas (1880-1885) has למוד instead of תלמוד. Is this some form of study, as opposed to the work we know as Talmud Bavli? In fact, that variant is the result of the Vilna Shas’ heavy censorship to avoid the term “Talmud”. Similarly, in Rashbam, the dibbur hamatchil is לא מפי גמרא in the Vilna Shas, but in earlier printings such as Venice (1520-1523) and Pesaro (1519-1536), Rashbam’s word is תלמוד. All the manuscripts on Hachi Garsinan have מפי תלמוד as the Talmudic text.

Pisaro printing, Basva Batra 130b

We see this avoidance of “Talmud” throughout the Vilna Shas. For instance, Bava Batra 8a has Rabbi Yehuda HaNasi open up the storehouses in years of famine for בַּעֲלֵי מִקְרָא, בַּעֲלֵי מִשְׁנָה, בַּעֲלֵי תַלְמוּד, בַּעֲלֵי הֲלָכָה, בַּעֲלֵי הַגָּדָה. The Vilna printing substitutes “Gemara”. There are unfortunate side-effect of this censorship. Namely, there are true instances of the word גמרא which are now disguised, and גמרא might mean something else, such as “tradition”. Also, תלמוד might mean something other than גמרא or למוד, and that meaning might change based on context. Having original text allows us to form a clearer picture of the words global and local meaning.

In Rishonim

What does “Talmud” mean in context? The Vatican 115b manuscript has לא מפי משנה ולא מפי תלמוד ולא מפי מעשה, prefacing Mishnah and suggesting something similar to our modern Gemara. But, how do the Rishonim understand it?

Rashbam, while writing תלמוד, understands it as לימוד / study. Namely, “if the rav teaches this by way of teaching, saying ‘Sage X’s reasoning is logical’, his students should not learn halacha from this. For perhaps, if an actual case came to his hand, he would be delve into it further and see another reason to the matter.” 

In his next comment (d.h. עד שיאמרו לו הלכה למעשה), Rashbam distinguishes between something established as halacha in the Mishnah, which we don’t rely upon, vs. דפסיק בגמרא הלכה כמותו, that which is ruled upon as halacha in the gemara, which we do rely upon. We do rely upon halachot ruled upon by the Amoraim’s words, and all the more so, upon the “halachot” written in the gemara as arranged by (the redactor) Rav Ashi, since in Bava Metzia 86a, Ravina and Rav Ashi are the end of hora’ah (instruction). To whom else should we turn for a practical course of action, if not on the halachot ruled in the Talmud which Rav Ashi arranged, for that’s equivalent to “until they told him halacha lema’aseh”. After them, no authority can innovate anything. 

Rashbam also points to Yerushalmi Peah 2:4, where Rabbi Zeira cites Shmuel that  אין למדין לא מן ההלכות ולא מן ההגדות ולא מן התוספתות אלא מן² התלמוד, understanding Talmud as the words of the Amoraim, rather than Mishnah or brayta, and thus halacha lema’aseh. It thus seems that Rashbam takes Talmud in Bavli to mean mere teaching but in Yerushalmi to mean Amoraim’s words / the gemara’s conclusion. Tosafot on Horayot 2a seems to understand our sugya and the Yerushalmi likewise.

Similarly, the Ri Megash takes pains to explain that halacha lema’aseh means after lots of deep and careful analysis. Thus, our Talmud Bavli is equivalent, as it was written [sic] after generations of deep and careful analysis, and many editions. They wrote it in order than we apply it practically. Clearly, he doesn’t take the brayta’s “Talmud” to mean our Talmud.

Rabbeinu Gershom, however, does seem to take the brayta’s “Talmud” to mean our Talmud. Thus, if someone sees in the Talmud a halacha like Tanna X or Y, rather than a practical case that he sees written in the Talmud, he shouldn’t rely upon it, for perhaps it is an individual option. Rather, he should wait until he asks in the study hall and they tell him to act upon it. Still, certain statements in the Talmud – the practical cases – are to be relied upon.

Meiri takes our sugya’s “Talmud” to mean a Mishnah or brayta stating that such is the halacha, contrasting it with a rav saying that something is halacha lema’aseh; he understands Yerushalmi’s “Talmud” as the words of the Amoraim. He mentions that the Geonei Sefarad don’t have תלמוד in our sugya, but תלמיד. That is, if a student studies his Mishnah and concludes the halacha’s like Sage X, we don’t rely upon him, lest he didn’t examine it carefully enough.

He ends with an impassioned endorsement (which should be read directly) of going back to the actual Talmud Bavli in order to render halachic decisions. He feels his generation has stumbled in this, and rely on arguments and collections of post-Talmudic opinions, announcing, ‘Look what I’ve found, that X wrote Y”, without considering whether it is correct or actually accords with the Talmud. A statement from a great halachic authority improperly becomes definitive, regardless of how it was said (as a commentary or weak resolution of a difficulty vs. a clear halachic ruling). 

Concluding Thoughts

It seems strange for the term Talmud means different things in different contexts about pesak. How can the Bavli mean it as an unclear teaching, while the Yerushalmi takes it as Amoraim’s words, or a written Talmudic text? Perhaps we should consider who employs the term. In Bavli, it’s a brayta, from Tannaim and transitional Tannaim. In Yerushalm, it’s a first-generation Amora, Shmuel, quoted by a second / third-generation Amora, Rabbi Zeira. Maybe “Talmud” acquired a different meaning, once Amoraim debated the meaning and application of the earlier Tannaic works. Conversely, Tannaitic disputes, recorded in brief corpora of canonized text don’t represent Tannaim’s full discussion, so perhaps even then, there was a concept of in depth Talmudic discussions.See Bava Batra 134a, that Rabban Yochanan ben Zakkai knew all of the Talmudic Abaye-Rava disputes.

I’d add that this doesn’t mean that any random person can pick up an Artscroll and derive concrete halacha. Seeing how Rishonim analyze competing Talmudic sugyot and apply decisive rules, this is a job for a sophisticated expert. Also, as I’ve discussed in the past, many instances of hilcheta appearing in the Talmud are spurious, and are post-Rav Ashi.

1. Except that this appears in the gemara, so I don’t pasken like it. Therefore I do pasken like the gemara. (I’m kidding.)

2.  Again, looking at uncensored Rashbam which has “Talmud” instead of “Gemara”.