Rules and exceptions

Though rules are not made to be broken, they are not as encompassing as they might appear.

By LEVI COOPER
Exceptions prove rules which, as we know, are anyway made to be broken. Is this really so? Certainly the authors of the rules had no intention that they should be violated. Moreover, in what way does an exception "prove" a rule? On the contrary, an exception brings the encompassing nature of a rule into question. How should we view the rules that are stated throughout the Talmud? Broadly, the term "rule" can be used in at least two contexts: First, there are specific rules, that is, precepts that demand performance or proscribe actions. Second, there are general rules that seek to organize and summarize a class of precepts. Thus in the first sense of the term, the Mishna tells us that women are not obligated to read Shema nor must they don tefillin, yet they do have to pray, affix a mezuza to their doorposts and recite Grace After Meals (M. Brachot 3:3). These precepts can be restated in terms of the second sense of the term "rule," that is, encapsulating them in summarizing statements: "Women are except from all time-bound commandments" and "women are obligated in all commandments that are not time-bound" (M. Kiddushin 1:7). The Talmud queries why the specific examples were stated rather than the general rule (B. Brachot 20b). While it is possible that specific examples give rise to a general rule, the Talmud offers a different explanation: In each case we might have reached the opposite conclusion. Reading Shema is required each morning and each evening and since the text voices the Almighty's sovereignty it is of primary import. Due to the profound significance of this declaration, women might be obligated to read Shema despite its time-bound nature. Similarly, tefillin is a daytime obligation, but its biblical juxtaposition with the mezuza obligation (Deuteronomy 6:8-9) may have led to the conclusion that women are obligated to don tefillin just as they are obligated to affix mezuzot. Conversely, the last three items mentioned in the Mishna - prayer, mezuza and Grace After Meals - are not time bound, yet in each case we may have reached the conclusion that women are nevertheless not obligated. The biblical verse "evening and morning and noon I pray and I cry out, and He hears my voice" (Psalms 55:18) may have lead to the conclusion that prayer is time specific and therefore women are exempt. The biblical juxtaposition of mezuza and Torah study (Deuteronomy 11:19-20) may have indicated that women are not obligated to affix mezuzot, just as they do not have an independent obligation to study Torah. Lastly, Grace is similar to a time-bound precept for we eat at set times as the verse says: "When God gives you meat to eat in the evening and bread to satiate [you] in the morning" (Exodus 16:8). Thus in each case the Mishna states the particular application, thereby indicating that the specific rules fit the general principle and negating the possibility that these items are exceptions. This talmudic explanation may appear strange: If there are general rules regarding women's obligations, why might we consider deviating from the general rules? Here we come to understanding the nature of talmudic general rules: Elsewhere in the Talmud, our sages question the validity of the general rules governing women's obligations by listing exceptions to the rules (B. Kiddushin 33b-34a). Our sages explain that general rules are not sources of law, they are organizing principles and hence prone to exemptions. The Talmud continues: Even if the rule is qualified, there is no guarantee that all the exceptions have been listed. Thus, for instance, our sages tell us that any type of food may be used for the purpose of creating a common food storage, a necessary requirement to permit carrying on Shabbat in an seemingly public domain. For this purpose any type of food may be used, that is, except for water and salt (M. Eruvin 3:1 and Rashi). Even though this rule ("any type of food may be used") is qualified ("except for salt and water"), nevertheless the rule is not exhaustive. Indeed, truffles and mushrooms which are not mentioned in the qualified general rule are also not considered nourishing food and therefore do not suffice for the purposes of creating a joint kitchen (B. Eruvin 27a). Thus another aspect of the reason for stating specific examples becomes apparent: General rules are not encompassing and exceptions for a variety of valid reasons are likely. By stating specific examples of a general rule we eliminate the possibility that the cases cited are exceptions to the rule. In sum: Though rules are not made to be broken, they are not as encompassing as they might appear. To be sure, general rules are subject to exceptions. Even a qualified general rule is not hermetically sealed and the possibility of further exceptions still exists. From here we turn to another qualified rule mentioned in our tractate: "Everything is in the hands of heaven, except for fear of heaven" (B. Brachot 33b and parallels). While this statement is not a legal maxim requiring specific deeds, it is nevertheless phrased like a qualified rule. As we have seen, however, even qualified general rules are not exhaustive. In fact, elsewhere in the Talmud the rule is restated with a different exception: "Everything is in the hands of heaven, except for sickness brought on by exposure to cold and heat" (B. Ketubot 30a-b and parallels). What then is the use of a general rule and why bother qualifying the rule? Rules are subject to exemptions, qualifications are not exhaustive. A rule serves as a starting point, an organizing principle from which discussion can begin while the exceptions exhibit the fallibility of the rule. More importantly, exceptions demonstrate that departure from the general rule must be on justifiable grounds. In our tradition, rules are not made to be broken, yet they are not made without exception. The exception does not prove the rule, though it demonstrates the boundaries of the rule and the cases when departure from the rule may be valid. The writer is on the faculty of Pardes Institute of Jewish Studies and is a rabbi in Tzur Hadassah.