The Role of Aggada in Psak

The Talmud, while primarily comprised of legal sections, also devotes a significant percentage of its text to aggada.  While these have moral and theological, their status legally is difficult to ascertain.  Thus, I devoted a shiur to exploring this topic: source and shiur here.

Before I deal with aggada proper, I should note that there is a related category which clearly has legal value which is maaseh rav.  When stories are brought to specifically support or reject a legal principle, recording how a reliable authority did or did not act in accordance with a  specific position, they clearly have normative value.  Sometimes the specific conclusion to be drawn is unclear, as in the case of drinking on Purim (discussed here), but in principle these are clearly legal texts.  The stories I refer to here are those that are less explicitly legal.

Here, there is a range of possible positions that could be taken.  One could reject all stories of this sort as having legal value.  One could assume that they are to be taken as legal texts always (perhaps even against classic Gemarot, such as is found in Tosafot Berachot 18a, Pesachim 40b, see below in R. Ovadiah Yosef).  In the middle, one could say that they have legal value under certain circumstances, such as when the stories sound like they are conveying a legal point, or when they don’t contradict any legal text.  Variations of these positions are taken by many poskim, and I just took a few issues to illustrate this range.  Note that I cut out the other arguments made in each of these cases as I was assessing a very specific issue.  For full treatment of the topics addressed, see the teshuvot inside.

One last introductory note:  The Yerushalmi (Peah 2:4) says that we don’t learn from Aggadot:

תלמוד ירושלמי (וילנא) מסכת פאה פרק ב הלכה ד

אין למידין לא מן ההלכות ולא מן ההגדות ולא מן התוספות אלא מן התלמוד

I wanted to focus not directly on how poskim explain that line, but rather what emerges from how they actually poskan.  I should have made this more explicit in the  shiur itself, but after the fact, I’ll at least mention it here.  For more sources, see the summary of R. Ovadiah Yosef in 1 YD 4, copied at the end and my brief discussion of some more comprehensive articles.

The first issue I addressed was the questioning of praying for sick people in pain to die, when death is preferable to them than life.  This topic is related to the even more extreme issue of withholding lifesaving procedures under these circumstances.  The Gemara records that when Rebbe was dying, he was in excruciating pain, leading his maidservant to pray for his death.  When she saw her prayers were being countered by the Chachamim, thus preventing her prayers from being answered, she threw something at them to distract them.  At that moment, Rebbe died.

R. Moshe Feinstein, basing himself on a Ran, derives from here that it is permitted to pray for a person in extreme pain to die, and even extends this to permit withholding treatment (passively) from saving the person’s life, accepting Rebbe’s maidservant as a Halachic source.  However, there are many reasons to question this.  First, this story in particular seems difficult to be accepted as a legal text as it is particularly fantastic in nature.  The Gemara explains that Rebbe’s suffering was sui generes, describing how his screams could be heard many miles away over the ruckus of countless animals eating and braying.  Furthermore, the Gemara describes how Rebbe used to return after his death every Friday night to make Kiddush for his family.  Thus, if one wanted to be a literalist about this story, the only legal conclusion is that if someone was is no much pain that his screams could be heard miles away, and he wasn’t really dying as he would continue to function somewhat normally in death, than his death is better than life, making praying for his death acceptable.  All this highlights the fantastic nature of this Gemara and the difficultly is accepting it for legal purposes.  Add to this that the Gemara also records that a divine voice promised a portion in the world to come to those who would sufficiently mourn Rebbe, including a launderer who committed suicide in grief.  It is very difficult to accept as a legal precedent that grief is a reason to allow suicide, calling into question the legal nature of the text.  The fact that despite all this R. Moshe accepted this Gemara as a precedent indicates how willing he was to accept aggada in this way, even extending the principles he derived from it.

R. Eliezer Waldnberg, on the other hand, rejected it (as does R. Wosner), in part, I assume, for reasons mentioned above.  He mentions the problems of accepted aggada, and adds other reasons to reject R. Moshe’s conclusion.  For example, he notes while the maidservant prayed for Rebbe to die, the sages had to be distracted to stop them from praying for him to live.  Thus, even internally to the story there are multiple voices to be dealt with, and one would assume the sages have more standing than Rebbe’s maidservant.  Thus, you see both a reticence to accept aggada, and an understanding that even when you do accept aggada, the messages are not always clear.

R. Waldnberg is willing to accept aggada when the Gemara engages in legal discussion about an aggada, presumably because then he is taking the legal discussion as his precedent and not the story itself.  For example, he proves that there is no prohibition to be intimate with one’s spouse during wartime (despite the prohibition during a famine, the parameters of which are not for now), from the Gemara’s suggestion that Yehoshua was punished for preventing peru urevu for one night during war.  While one can reject his proof, noting that an exception could be made for those who have no fulfilled the mitzvah of peru urevu, an exception that is found regarding famine, what becomes clear is that when the Gemara has a legal discussion about a story, R. Waldenberg is more willing to accept it as precedent.  Similarly, he argues that those studying Torah full time should not be drafted based on the Gemara’s accusation against Avraham and others that they were punished for taking away Torah scholars from Torah to fight a battle.  Again, there are many internal reasons to challenge this conclusion, but the approach to aggada, is, I think, clear.  The stories themselves are difficult to use for legal precedent, but legal discussions that take place in the Talmud about them are not.

Note, however, that there are many who challenge the conclusion he reaches about drafting yeshiva students.  Among the challenges raised is the problem with accepting aggada in this fashion.  Others note local issues, such as the extension of Talmid Chacham to all who study in Yeshiva, or the assumption that same would be true in a case of milchemet mitzvah.  See, for example, R. Herzog’s comments.

Another point that the Tzitz Eliezer makes about the praying for people in pain to die is that most poskim did not accept that passage the way the Ran did.  This suggests another factor – sometimes one must simply look at precedent to see whether a particular story has been accepted as legal precedent or not.  This does not suggest a predictive method, but it is helpful practically.

Another modern issue that highlights the range of positions is the question of paternity in cases of IVF.  The main source that is discussed is the story that records that Ben Sira was conceived by the daughter of Yirmiahu in a bath from an emission by Yirmiahu when he took a bath before her.   Ben Sira was not considered a mamzer. The realia is difficult to understand, making this aggada difficult to apply.  R. Uziel argued that it had to be rejected as precedent for no reason other than it was an aggada, taking the extreme position we mentioned aboveR. Ovaidah Yosef notes that in general, there is a school of poskim who accept aggadot, as long as they are not contradicted by legal texts.  Add to that fact that in this case many early poskim cite this particular passage, there is reason to accept it for legal purposes.  Thus, most poskim use this story as their starting point.  Some derive from here that without a physical act of intimacy, neither mamzerut nor paternity can be created, meaning that IVF would be permitted even from men other than the husband.  Alternatively, there could be no mamzerut but there would be possible paternity, leading R. Moshe to argue that if another man’s sperm must be used, it should be that of a non-Jew, as that would remove issues of paternity (and therefore arayot).  To bolster this, they note that R. Peretz argues that we allow women who are niddot to sleep on sheets that their husband slept on, without worrying about the concern they will conceive from leftover emissions, arguing based on the above story that the child would not be a ben niddah.  R. Uziel rejects this totally because it relies on aggada.  Others note that while R. Peretz made the above claim, the Shiltei Giborim argues that we allow women to sleep on their husbands sheets because ben niddah does not worry us, as the child is only a pagum but not a mamzer, but we do not allow them to sleep on other men’s sheets.  He derives this from the Ben Sira Gemara as well, showing that even when accepting an aggada, the conclusion is not always obvious, just as we know from any legal text.

There are many other cases that could be dealt with, but I just wanted to illustrate some of the possible positions and the complexities that emerge from these issues.

שו”ת יביע אומר חלק א – יורה דעה סימן ד ד”ה (ח) איברא


(ח) איברא דאמרינן בירושלמי (פ”ב דפאה ה”ד), אין למדין לא מן ההגדות ולא מן התוספות אלא מן התלמוד. ע”ש. וכה”ג כתב בחי’ הרשב”א מגילה (טו). וכ”כ התוס’ יום טוב (פ”ה דברכות מ”ד). ע”ש. אכן כבר העלו בזה האחרונים, דלא אמרינן הכי אלא כשיש סתירה לזה מן הש”ס. ודלא כהתוס’ יום טוב (שם). וכמ”ש הפר”ח (סי’ קכח ס”ק כ), דמי יוכל לחלוק על המדרש בלא ראיה מהש”ס. ע”ש. וכ”כ בס’ מים חיים (ברכות שם), והשיג על התי”ט, והובא ג”כ בתוס’ רעק”א. ע”ש וכ”כ הגאון באר יעקב (אה”ע סי’ קיט). ושכ”כ הכנה”ג בכלליו (אות ע). ע”ש. וכ”כ בפשיטות מרן החיד”א בשו”ת חיים שאל ח”א (סי’ צב). ע”ש. ונהי דאנן קי”ל כדברי התי”ט, שהש”צ אינו עונה אמן אחר הכהנים, אפי’ הוא מובטח שחוזר לתפילתו, ודלא כהמדרש שהביא התי”ט. וכמ”ש האחרונים. ע’ בפמ”ג (סי’ קכח מש”ז ס”ק יד). וכ”פ מהר”ח פלאג’י בכף החיים (סי’ טו אות עד). וכ”פ בבן איש חי. (פ’ תצוה אות טו). ועוד. שאני התם דמשמע להו דסת”מ ברכות (לד) פליגא ע”ד המדרש בזה. וכמ”ש בס’ באר יעקב שם. וכ”כ בשו”ת לב חיים ח”ג (סי’ צט, דצ”ג ע”ב). ע”ש. הא לא”ה למדין מן המדרש ואין משיבין. וכן מבואר בס’ הישר לר”ת, שיש ללמוד מן המדרשים כשאינם מכחישים את התלמוד, שהרבה מנהגים בידינו על פיהם. ע”ש. והובא במחזיק ברכה א”ח (בקונט’ אחרון סי’ נא). וע”ע בשו”ת בית שערים (חיו”ד סי’ תכז). ע”ש. ומכ”ש הפסיקתא שאנו סומכים עליה לפעמים אפי’ נגד הגמרא דידן, וכמ”ש התוס’ ברכות (יח), ופסחים (מ:). ע”ש. וכ”ש בנ”ד שלא מצינו שום מחלקות /מחלוקת/ בזה, והם דברים שהדעת סומכת עליהם. וע”ע בתשו’ נוב”י מה”ת (חיו”ד סי’ קסא), ודון מינה ואוקי באתרין. ודו”ק.

For more comprehensive discussions:

Moshe Tzuriel frames this question in the context of many other non-classic texts, such as Kabbalah, and their role in psak.  See18 אין למדין מן האגדות – מספרא לסייפא .

Yitzchak Nafcha in על הלכה ואגדה – דרך אפרתה ג assesses the value of Aggada in establishes normative values, if not law, basing himself in large part on the Ramban’s about the spirit of the law (which I dealt with here).  He also notes the very important position of Maharatz Chayes that the limitation of ruling based on Aggada does not apply to those stories that are included in the Bavli, which obviously affects this discussion in a very serious way.


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