List of Talmudic principles
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A Chazakah (Hebrew: חזקה) usually refers to the default assumption; i.e. what is assumed until there is evidence to the contrary. For example, if one is known to have owned property, it is assumed that he still owns it until proven otherwise. However, with movable items, the Chazakah lies with whoever currently has the item in his possession, not with the one who had previously owned it.
This principle also applies to non-monetary cases, such as that food known to be kosher maintains its status until there is evidence to the contrary. Also, one who engages in acts done only by Kohanim (priests) is assumed to be a kohen himself, until proven otherwise. (See status quo Kohen.)
De'oraita and derabanan
A law is de'oraita (Hebrew: דאורייתא) if it is derived from the Torah; if a law is derabanan (Hebrew: דרבנן) it is mandated by the rabbinical sages. The concepts of de-'oraita (Aramaic: דאורייתא) and de-rabbanan (Aramaic: דרבנן) are used extensively in discussion of Jewish law and are of concern for modern observance of Judaism.
The former refers to halachic requirements that rabbinic literature understands to be Biblically mandated, while the latter refers to halachic requirements that are rabbinically mandated. In Aramaic, de-'oraita means "from the Torah" and de-rabbanan means from our Rabbis.
Sometimes it isn't clear whether the verse has been quoted as an Asmachta (hint) or as a source, what might lead to a controversy over the de'oraita or derabanan quality of the law. An example for such case is the controversy over the quality of berakhah levatala - the prohibition to say a prayer outside its context. The Talmud says whoever says unneeded berakhah violates the verse Thou shalt not take the name of the Lord thy God in vain. While Maimonides sees it as a source, Tosafot sees it as an asmachta.
Use of terminology
Examples of the application of these two terms abound. One such application appears in the laws relating to grace after meals. There are four blessings contained within the grace after meals, and while the first three are biblically mandated, the fourth blessing was added much later on in Jewish history and is rabbinically mandated (B. Brachot 45b) The first three blessings would thus be referred to as de-'oraita and the last blessing would be referred to as de-rabbanan.
Another example are the commandments regarding the famous phrase "Thou shall not boil a kid in its mother's milk." From this, many laws of kashrut are derived by the rabbis. One might think this would make it de-rabbanan because it was derived by the rabbis, but the laws are actually de-'oraita because they are derived by interpreting the Torah. On the other hand, the extension of this prohibition to eating chicken with milk is de-rabbanan as it is the product of a specific Rabbinic enactment.
The application of differences between rabbinic and biblical mitzvot can sometimes make practical differences.
- Rules of precedence
- If a d'oraita rule comes into conflict with a d'rabbanan rule, the d'oraita rule (Torah rule) always takes precedence.
- Sofek (cases of doubt)
- Sofek means a case where you are uncertain about the factual circumstances, i.e. one does not remember whether he or she said a portion of tefila or a berekha. If there is doubt about a fact where a d'oraita rule applies, the strict position regarding the rule is taken (the repeat fulfillment of the rule is taken); if there is doubt in a matter that is d'rabbanan, the lenient position is taken regarding the rule (the act is not repeated and it is ignored).
- Bediavad (extenuating circumstances)
- In cases of extenuating circumstances regarding a rabbinic law, decisors of Jewish law sometimes apply the law leniently.
Kal Vachomer (A fortiori)
A kal vachomer (Hebrew: קל וחומר, literally "lenient and strict") derives one law from another through the following logic: If a case that is generally strict has a particular leniency, a case that is generally lenient will certainly have that leniency. The argument can also work in reverse, and also in areas where lenient or strict might not be precisely applicable.
A migo (Hebrew: מיגו, literally "out of" or "since") is an argument for a defendant that he ought to be believed regarding a certain claim, because he could have made a different claim which would definitely have been believed.
For example, if someone admits to having borrowed money and claims to have paid it back, he is believed because he could have claimed that he never borrowed the money in the first place (absent other evidence for the loan).
- Promising Justice: Derrida with Jewish Jurisprudence A Hirvonen - Law and Critique, 2001 - Springer "Thus, those commandments (mitzvot) that come directly from the Torah (de'oraita) and are biblical, are a superior authority to those rabbinic ones which do not come from it (de'rabbanan). The de'oraita ... "
- The Hebrew source text: "כל המברך ברכה שאינה צריכה עובר משום לא תשא" (Berachot 33a)
- Mishneh Torah, Berachot 1, 15
- The Aramaic source text: "ומשום דמברך ברכה שאינה צריכה וקעבר משום בל תשא ליכא דההיא דרשה דרבנן" (Tosafot on Rosh Hashanah 33a)
- "Judaism 101: Halakhah: Jewish Law". www.jewfaq.org.