Baraita of Rabbi Ishmael
—— Tannaitic ——
Midrash halakha (Hebrew: הֲלָכָה) was the ancient Judaic rabbinic method of Torah study that expounded upon the traditionally received 613 Mitzvot ("laws") by identifying their sources in the Tanakh (Hebrew Bible), and by interpreting these passages as proofs of the laws' authenticity. Midrash more generally also refers to the "non-legal" interpretation of the Tanakh (aggadic midrash). The term is applied also to the derivation of new laws, either by means of a correct interpretation of the obvious meaning of scriptural words themselves or by the application of certain hermeneutic rules.
The phrase "Midrash halakha" was employed by Nachman Krochmal (in his "Moreh Nebuke ha-Zeman," p. 163), the Talmudic expression being "Midrash Torah" = "investigation of the Torah". These interpretations were often regarded as corresponding to the real meaning of the Scriptural texts; thus it was held that a correct elucidation of the Torah carried with it the proof of the halakha and the reason for its existence.
In the Midrash halakha three divisions may be distinguished:
- The midrash of the older halakha, that is, the midrash of the Soferim and the Tannaim of the first two generations;
- The midrash of the earlier halakha, or the midrash of the Tannaim of the three following generations;
- The midrash of several younger tannaim and of a large number of amoraim who did not interpret a Biblical passage as an actual proof of the halakha, but merely as a suggestion or a support for it ("zekher le-davar"; "asmakhta").
The early halakha sought only to define the compass and scope of individual laws, asking under what circumstances of practical life a given rule was to be applied and what would be its consequences. The earlier Midrash, therefore, aims at an exact definition of the laws contained in the Scriptures by an accurate interpretation of the text and a correct determination of the meaning of the various words. The form of exegesis adopted is frequently one of simple lexicography, and is remarkably brief.
A few examples will serve to illustrate the style of the older Midrash halakha. It translates the word "ra'ah" (Ex. xxi. 8) "displease" (Mek., Mishpatim), which is contrary to the interpretation of Rabbi Eliezer. From the expression "be-miksat" (Ex. xii. 4), which, according to it, can mean only "number," the older halakha deduces the rule that when killing the Passover lamb the slaughterer must be aware of the number of persons who are about to partake of it (Mek., Bo, 3 [ed. I.H. Weiss, p. 5a]).
The statement that the determination of the calendar of feasts depends wholly on the decision of the nasi and his council is derived from Lev. xxiii. 37, the defectively written "otam" (them) being read as "attem" (ye) and the interpretation, "which ye shall proclaim," being regarded as conforming to the original meaning of the phrase (R. H. 25a). When two different forms of the same word in a given passage have been transmitted, one written in the text ("ketib"), and the other being the traditional reading ("qere"), the halakha, not wishing to designate either as wrong, interprets the word in such a way that both forms may be regarded as correct. Thus it explains Lev. xxv. 30-where according to the qere the meaning is "in the walled city," but according to the ketib, "in the city that is not walled"-as referring to a city that once had walls, but no longer has them ('Ar. 32b). In a similar way it explains Lev. xi. 29 (Ḥul. 65a). According to Krochmal (l.c. pp. 151 et seq.), the ketib was due to the Soferim themselves, who desired that the interpretation given by the halakha might be contained in the text; for example, in the case of "otam" and "attem" noted above, they intentionally omitted the ו.
The Midrash of the earlier halakha 
The earlier halakha did not confine itself to the mere literal meaning of single passages, but sought to draw conclusions from the wording of the texts in question by logical deductions, by combinations with other passages, etc. Hence its midrash differs from the simple exegesis of the older halakha. It treats the Bible according to certain general principles, which in the course of time became more and more amplified and developed (see Talmud); and its interpretations depart further and further from the simple meaning of the words.
A few examples will illustrate this difference in the method of interpretation between the older and the younger Halakah. It was a generally accepted opinion that the first Passover celebrated in Egypt, that of the Exodus, differed from those that followed it, in that at the first one the prohibition of leavened bread was for a single day only, whereas at subsequent Passovers this restriction extended to seven days. The older halakha (in Mek., Bo, 16 [ed. Weiss, 24a]), represented by R. Jose the Galilean, bases its interpretation on a different division of the sentences in Ex. xiii. than the one generally received; connecting the word "ha-yom" (= "this day"), which is the first word of verse 4, with verse 3 and so making the passage read: "There shall no leavened bread be eaten this day." The younger halakha reads "ha-yom" with verse 4, and finds its support for the traditional halakha by means of the principle of "semukot" (collocation); that is to say, the two sentences, "There shall no leavened bread be eaten," and "This day came ye out," though they are separated grammatically, are immediately contiguous in the text, and exert an influence over each other (Pes. 28b, 96b). What the older halakha regarded as the obvious meaning of the words of the text, the younger infers from the collocation of the sentences.
Contrast with earlier halakha 
The wide divergence between the simple exegesis of the older halakha and the artificiality of the younger is illustrated also by the difference in the method of explaining the Law, cited above, in regard to uncleanness. Both halakot regard it as self-evident that if a man is unclean, whether it be from contact with a corpse or from any other cause, he may not share in the Passover (Pes. 93a). The younger halakha, despite the dot over the ה, reads "reḥoḳah" and makes it refer to "derek" (English "road" or "way") even determining how far away one must be to be excluded from participation in the feast. However, to find a ground for the halakha that those who are unclean through contact with other objects than a corpse may have no share in the Passover, it explains the repetition of the word "ish" in this passage (Lev. ix. 10) as intending to include all other cases of defilement.
Despite this difference in method, the midrashim of the older and of the younger halakha alike believed that they had sought only the true meaning of the Scriptures. Their interpretations and deductions appeared to them to be really contained in the text; and they wished them to be considered correct Biblical expositions. Hence they both have the form of Scriptural exegesis, in that each mentions the Biblical passage and the halakha that explains it, or, more correctly, derives from it.
Abstract and Midrash halakha 
It is to a law stated in this form—i.e., together with the Biblical passage it derives from—that the name midrash applies, whereas one that, though ultimately based on the Bible, is cited independently as an established statute is called a halakha. Collections of halakot of the second sort are the Mishnah and the Tosefta; compilations of the first sort are the halakhic midrashim. This name they receive to distinguish them from the haggadic midrashim, since they contain halakot for the most part, although there are haggadic portions in them. In these collections the line between independent halakha and Midrash halakha is not sharply drawn.
Many mishnayot (single paragraph units) in the Mishnah and in the Tosefta are midrashic halakot. On the other hand, the halakhic midrashim contain independent halakot without statements of their Scriptural bases. This confusion is explained by the fact that the redactors of the two forms of halakot borrowed passages from one another.
The two schools 
Since the halakhic Midrashim had for their secondary purpose the exegesis of the Bible, they were arranged according to the text of the Pentateuch. As Genesis contains very little matter of a legal character, there was probably no halakhic midrash to this book. On the other hand, to each of the other four books of the Pentateuch there was a midrash from the school of R. Akiba and one from the school of R. Ishmael, and these midrashim are still in great part extant. The halakhic midrash to Exodus from the school of R. Ishmael is the Mekilta, while that of the school of R. Akiba is the Mekilta of R. Shimon bar Yochai, most of which is contained in the Midrash ha-Gadol.
A halakhic midrash to Leviticus from the school of R. Akiba exists under the name "Sifra" or "Torat Kohanim." There was one to Leviticus from the school of R. Ishmael also, of which only fragments have been preserved. The halakhic midrash to Numbers from the school of R. Ishmael is the "Sifre"; while of that of the school of R. Akiba, the Sifre Zuṭa, only extracts have survived in the Yalkut Shim'oni and in the Midrash ha-Gadol. The middle portion of the Sifre to Deuteronomy forms a halakhic midrash on that book from the school of R. Akiba, while another from the school of R. Ishmael has been shown by Hoffmann to have existed.
Midrashic halakhot found also scattered through the two Talmuds; for many halakhic baraitot (traditions in oral law) that occur in the Talmuds are really midrashic, recognizable by the fact that they mention the Scriptural bases for the respective halakot, often citing the text at the very beginning. In the Jerusalem Talmud the midrashic baraitot frequently begin with "Ketib" (= "It is written"), followed by the Scriptural passage. From the instances of midrashic baraitot in the Talmud that are not found in the extant midrashim, the loss of many of the latter class of works must be inferred.
The Talmud often says of the interpretations of a baraita: "The Biblical passage should be merely a support." Of this class are many of the explanations in the Sifra and in the Sifre. The tanna also often says frankly that he does not cite the Biblical word as proof, but as a mere suggestion of the halakha, or as an allusion to it.