I am writing to you regarding an issue that has been bothering me for some time. I have asked a number of people this question but have never received an answer that I am satisfied with. I believe that you may be able to shed some light on the issue. I will include the suggested answers below and explain why I don’t consider them adequate. The question involves a general understanding about how mishnayot and braysot were formed. It appears from my understanding of the gemora that a mishna is a concise overview of all of oral Torah enabling us to extrapolate all eventual circumstances that could occur requiring a halachik ruling. It would therefore follow that when 2 amoraim have a dispute and one brings a mishna or brayta to back up his claim which states precisely the disputed case with a ruling siding with him, that this would be conclusive evidence that the authoring tanna is supporting this amora. Often having cited this format in the gemora, the defending amora will then say hocho bemai oskinon and establish the tannaic source as referring to an obscure, specific case where the ruling applies, although in the general amoraic dispute the tanna would certainly not maintain this ruling (ukimta). It would appear that the defending amora has no tradition regarding the limiting of the tannaic source to this specific case. This can primarily be demonstrated from the fact that the defending amora will often fall of his ukimta and establish the tanna as referring to a completely different case when attacked with a further question rendering it impossible to maintain that this it the case that the tanna was referring to (e.g. a question from the seifa of the mishna). This seems somewhat problematic seeing as we are now going to base halacha on nothing more than what seems like an educated guess of what the tanna may have been talking about assuming that he didn’t mean the general case that he explicitly spelled out (as the attacking amora seemed to think) Furthermore, in order for the ukimta case to actually have been the intention of the tanna, you are entertaining the possibility that the tanna wrote the law so obscurely the he wrote virtually the opposite of what he actually meant, since this amora is now claiming that the law stated by the tanna only applies to the ukimta case and not to the general case originally assumed. What is actually being claimed is that the tanna wrote the opposite of what he holds seeing as he wrote a general statement implying that that law would apply at the very least to the majority of cases, so by claiming that the tanna does not mean this, you are claiming that the tanna meant the opposite of what he said and that the tanna would actually agree that the general case would get the opposite law to what he stated. Logically it seems that there are 3 possibilities as to how the mishnayot and braysot were composed. They were either written generally i.e. in accordance with the simple reading of the tannaic source, without assuming that the mishna is discussing a case with a limiting, unspecified factor. Alternatively, the tannaim may have authored their work in a limited fashion i.e. the tanna wrote laws in the exceptional case but the law in the general case will be opposite of what he wrote and it is the gemoras agenda to identify this limitation in any given source. It is clear from the gemora that the amora who brings the tannaic source as a proof to his position believes that the mishnayot were written in a general fashion i.e. that we can bring a proof from the simple implication of the statement. The defending amora however seems to be of the opinion that the mishnayot were written specifically from the fact that he feels happy to establish the mishna as referring to a limited, unspecified case. It would appear that the amoraim are arguing over the form that the mishnayot were written in. However, even this seems to be impossible seeing as there seems to be no consistency in shas as to who is “willing” to say hocho bemai oskinon and who tries to bring the simple reading of the mishnayot as a proof to his position. It has been suggested that some mishnayot and braysot were written in a general format whereas others were written in an unidentified, specific format. Firstly, it seems completely arbitrary that Rebbi would compose the mishnayot in such a format leaving us unable to identify which were general and which were specific. Secondly, what would the point be in bringing a proof to your position from a mishna seeing as the defending amora could always legitimately establish the mishna as a specific case? Finally, why is it that the poskim prefer to pasken halacha in accordance with the amora with the fewest or least limiting ukimtas assuming all other factors are equal. We clearly see from here that it is considered a weak position to claim that the mishna is referring to an ukimta case. If some of the mishnayot were written in a limited form however, why is it considered a weak position to make a hocho bemai oskinom? Another possible solution to this issue that has been suggested is that when the defending tanna says hocho bemai oskinon, he isn’t suggesting that the ukimta case was actually the intention of the tanna. He agrees that the tanna is arguing with him, but this is not problematic for him seeing as he has his own tradition as to what the correct law is in the disputed case. What he means to say by making the ukimta is “although I argue in the general disputed law with the quoted tanna, I do agree that the law will be like my opposing amora in the following, limited case.” This knowledge is useful when it comes to pasken halacha so we now know the opinion of the defending amora in the specific case. The problems with this explanation are numerous. Firstly, it is very implicit from the words hocho bemai oskinon that the amora is trying to explain the intention of the tanna. How can “what we are dealing with here” mean “I would agree to this law in the following case”? Secondly, if the defending amora has a tradition as to why he opts for his position on the dispute, surely this stage in the gemora would be an appropriate opportunity to quote the earlier sage or tanna that this amora is in accordance with, as we commonly see throughout shas that amoraim claim that they follow the opinion of a different tanna. Thirdly, what is the point of bringing a proof from a mishna if your opposing amora will stand by his guns no matter what, even though he agrees that a mishna is clearly going against him? I thank you in advance for helping to clarify this issue and I eagerly await you response. Many Thanks
Shalom, Thank you for the question. You have presented clearly a problem that I believe has bothered many students who are unable to articulate the source of concern as well as you did. In my learning and teaching I have been bothered by these issues, and I hope that the approach I outline briefly is understandable. I don't think it is the only way of explaining the issues. Torah she'ba'al peh was originally taught with no written, that is to say, hard and fast text. The same idea could be expressed in many ways. Writing the tradition was a "deviation" from the norm of Torah study and transmission. In Torah sheb'chtav, not only the idea, but also the written word has sanctity, but in Oral Torah, every "word" can be challenged. Although it was necessary to write down the traditions for historical reasons, R. Yehuda HaNasi wanted to maintain the nature of Oral Torah study, so he wrote down the traditions in a way that demanded interpretation. Another way of saying this is that the Mishna is written in a form of code, which must be broken with the "keys" of the tradition. I believe that the difficulties of interpreting the mishna are programmed in to maintain the nature of study, which always demands interaction of the student with the tradition, and not blind acceptance of authority. It is not only in response to a question on an amora that the gemora says "hacha b'mai askenan". It can be in response to a contradictory parallel text, or even a question of logic or common sense. The amoraim, (at least the early amoraim, especially the Israeli) saw the text of the mishna as the jumping off point for the analysis of a sugya. In many sugyot, the early amoraim are quite cavalier about making textual corrections to a mishna (eipuch, chasurei mechsera, etc.) while later amoraim will try to force their understanding into the language of the mishna, even if the explanation is forced. Apparently, textual emendation requires greater familiarity with the variant traditions, and the early amoraim, like R. Yochanan and R.Yehoshua ben Levi, felt more at home with the text and made changes more readily. I ascribe this to both their familiarity with the traditions, and with their sensitivity to the notion of "Oral Tarah". Furthermore, many mishnayot or braatot are fragments of longer texts that have been lost or altered in transmission and require reconstruction. Sometimes what appears to be complete requires additions because of other factors in the tradition. Rebbe also constructed texts out of variant opinions, which have to be rearranged by the amoraim. All in all, I am suggesting that the Mishna is a jumping off point and "companion piece" for oral study and not a replacement. I would appreciate your response to this attempt at clarification so I can further sharpen my own thoughts.