Upon His Staff.
Mishpatim (Exodus 21-24 )
After the Ten Commandments in parshat Yitro, the Torah gives us parshat Mishpatim, which deals with many laws. Most, though not all, are civil laws between man and man. Some are truly revolutionary, like the law to give released slaves a special 'Retirement Package.' Below we read of medical compensation for someone injured in a brawl.
"If he gets up and about outside on his staff, the one who struck is absolved."
On his staff - RASHI: In his [former] healthy state and vigor.
Rashi takes the words 'upon his staff' in a figurative sense. What would you ask here?
The Torah says "he went outside on his staff." Why not take these words literally? Remember the rule, "The Torah verse never abandons its plain meaning." We also know that Rashi generally prefers the "plain meaning" (see his comment to Genesis 3:8) so why does he abandon it here?
What's bothering Rashi?
WHAT IS BOTHERING RASHI?
An Answer: The previous verse tells us that if man hits another man, but does not kill him, yet the injury causes him to be bedridden, then (our verse says) "if he rises and goes outside on his staff" the villain is free from punishment for murder.
But Rashi implicitly asks: Why is he free? Seeing that the injured man is still showing signs of his injury (he needs a staff to get around), he still might have a relapse and die. Why, then, is the aggressor free from punishment?
How does Rashi's comment deal with this difficulty?
An Answer: Rashi's interpretation (his healthy state and strength) avoids this difficulty. It says that only if the injury is completely healed ("he goes about on his own strength") is the aggressor free.
We must keep in mind that the aggressor is being held as a possible murderer (see the next Rashi-comment "And the one who struck will be absolved").
Note that our verse says that in any case the aggressor must pay for the victim's medical expenses and loss of wages. So the only charge that is in doubt is the charge of murder. How can we absolve him of such a serious charge if the injured man still has not recovered completely? Thus Rashi (and the midrash Mechilta) says he is no longer crippled; he walks around on his own, unassisted, strength.
But how can Rashi turn the words of the Torah on their head? "On his staff" seems to mean weak, needing assistance, yet Rashi says "strong."
An Answer: The Hebrew word "mishenet" means "a support"; but here the word is "mishanto," "his support." Rashi takes the word "his" to mean his own, internal, support and not an external support, which in the final analysis is not really "his." The Ibn Ezra makes the same point by saying that the Torah used the word "mishenet" to tell us the man is not dependent on others for getting around.
THE RAMBAN'S DISPUTE WITH RASHI
The Ramban quotes Rashi and then goes on to say:
"In my opinion mishanto is to be understood literally [a staff] just as in the verse 'every man with mishanto [his staff] in his hand in his old age' (Zechariah 8:4). Scripture is thus stating that if the injured person's health improves sufficiently to enable him to go out walking as he wishes in the streets and in the broad ways with his staff like those healed with some prolonged disabling injury, 'then he that smote him shall be free.' It also teaches us that if the injured man is careless [later] about his health and dies after that, in his weakness, the assailant is free from the death penalty. Scripture says 'and he walks outside' because it speaks of the ordinary way of life, for injured men who were laid up in bed do not go out walking again until their wounds have healed and they are out of danger, this being the sense of the phrase 'and he walks outside,' because if he just gets up and walks in his house on his staff and then dies, the assailant is not free."
The Ramban continues:
"In the words of the Mechilta 'If he rises up and walks' I might think this means within the house, Scripture therefore says, 'outside.' But from the word 'outside' I might think that even if he was wasting away [the aggressor would be free]; Scripture therefore says 'if he rises up.'
This explanation [the Ramban continues] too is very correct, that Scripture should be saying that if the injured man gets up completely from his bed and goes steadily outside without having to go back to his bed when returning from outside, as those do that are wasting away, even though he is weak and has to lean on his staff, the assailant shall be left off. In general all this is to be interpreted as being figurative language expressing people's usual conduct. The basic rule is that he must have been assessed as being capable of recovery."
UNDERSTANDING THE RAMBAN
By his final statement it would seem the Ramban does agree with Rashi, that the term "mishanto" is not to be taken literally. Yet this would contradict what he said at the outset of this commentary, i.e. that the word should be taken literally!
In one word, how are the words "walking on his staff" seen by:
Answer: Ramban: as an example.
Rashi: as a metaphor.
The Ramban is saying that if, in fact, the injured man recovered sufficiently to walk outside on his cane, then the assailant could no longer be held accountable for any future setbacks. This is an example, says the Ramban, of the kind of a reasonable, normal-type recovery, and therefore the assailant is free of any further responsibility. Walking around outside is but a common example of healthy recovery from an injury.
So it is both an example and a general rule. The rule, as the Ramban clearly says is: That he must be assessed as being capable of recovery.
Rashi, on the other hand, says that "walking outside on his support" is but a metaphor of a complete recovery. But in fact, if the man was still using a cane, even if he walked outside, he could not be considered completely recovered. If he had a relapse, according to Rashi, the assailant would be responsible. There is a clear difference in Halacha between Rashi and the Ramban.
TWO APPROACHES TO P'SHAT INTERPRETATION: RASHI AND RAMBAN
This dispute is a fortunate opportunity to examine the different approaches to Torah interpretation by these two great expositors.
To better understand Rashi, let us see his source. It is in the Mechilta.
It says: "If he rises up and walks outside upon his support," that means restored to his health. This is one of three expressions in the Torah which Rav Yishmael interpreted figuratively..."
Rashi follows Rav Yishmael that this verse is to be taken figuratively. We can deduce from Rav Yishmael's statement that all other verses in the Torah (besides the three he mentions) are not to be taken figuratively, rather in their "simple meaning," p'shat. We know that Rashi is committed to p'shat interpretation, but this is qualified by the Sages' view of p'shat. This is an important point to understand if we are to fully appreciate Rashi's approach to p'shat interpretation. For Rashi, p'shat is not independent of the Sage's view. P'shat, in Rashi's approach, is tempered by midrashim which can fit into the words of the Torah. As Rashi said in Breishis, (Genesis 3:8) he is interested in "p'shuto shel mikra and the aggados that explain the words of the Scripture in a manner that fits in with them ." In short, Simple Sense, p'shat, interpretation also includes under its umbrella the interpretations of the Sages, as long as the Torah text can accommodate them. In our verse an authoritative Sage, Rav Yishmael, says that the verse is to be taken figuratively and Rashi does so.
This view of p'shat is not universally accepted among the Rishonim. For example, the Rashbam, Rashi's own grandson, argues with Rashi over the p'shat interpretation of various verses. Many Rishonim understand p'shat as we might, vis-a-vis what makes most sense in the context of the verse.
The Ramban views Torah interpretation similarly to these Rishonim and differently from Rashi. He will often argue with Rashi regarding the interpretation of a verse and the argument frequently revolves around what is considered p'shat. In our verse the Ramban, while fully aware of Rav Yishamel's opinion, offers a different view. While Rav Yishmael takes the words "walking on his support" as a metaphor, the Ramban sees the literal interpretation as closer to p'shat and does not hesitate to say so. For him p'shat and Rabbinic interpretation are two separate realms, they need not be combined nor confused. Rashi seems to combine midrash and p'shat and molds from them his own type of p'shat. He does this out of conscious consideration of the Sages' view. Rashi's only qualification for using midrash as p'shat is that the midrashic meaning must fit into the words of the Torah.