Ki Teitse 5764
Tradition and exegesis
Devarim, Ki Teitse (JPS translation)
22:13 If any man take a wife, and go in unto her, and hate her,
22:14 and lay wanton charges against her, and bring up an evil name upon her, and say: 'I took this woman, and when I came nigh to her, I found not in her the tokens of virginity';
22:15 then shall the father of the damsel, and her mother, take and bring forth the tokens of the damsel's virginity unto the elders of the city in the gate.
22:16 And the damsel's father shall say unto the elders: 'I gave my daughter unto this man to wife, and he hateth her;
22:17 and, lo, he hath laid wanton charges, saying: I found not in thy daughter the tokens of virginity; and yet these are the tokens of my daughter's virginity.' And they shall spread the garment before the elders of the city.
22:18 And the elders of that city shall take the man and chastise him.
22:19 And they shall fine him a hundred shekels of silver, and give them unto the father of the damsel, because he hath brought up an evil name upon a virgin of Israel; and she shall be his wife; he may not put her away all his days.
And they shall spread the cloth before the elders of the town - the matter (or the words) shall become as white as a cloth.
This was one of the things that R. Yishmael derived from the Torah as an allegory (moshol). Similarly (Shemos 22), 'if the sun arose over him, he has blood'. Did the sun rise over him alone? What does it mean "if the sun rose"? As sun signifies existence of peace, so if the householder knows that he can expect peaceable intentions from the intruder (and still kills him), he is culpable. 
Similarly, 'if he rises and walks outside upon his staff (Shemos 21)' - meaning on his own power. Similarly, "they shall spread the cloth" - the matter shall become as white as a cloth.
R. Akiva says: "they shall spread the cloth before the elders" - as a result, the witnesses of the husband become zommin. Another interpretations: the witnesses of the husband and the witnesses of the maiden shall come and arrange their testimony before the elders.
R. Eliezer said: the words are as they are written (Sifri, Teitse, 237).
Before we set ourselves to discussing the disagreement between R. Yishnael and R. Akiva, a few points should be made. First, it is clear that the first sentence represents a pre-existent tradition, a paraphrase of how the verse is to be understood perhaps even a translation from a targum back into mishnaic Hebrew. R. Yishmael and R. Akiva disagree on the meaning of this received tradition. The Sifri points out that R. Yishmael follows his general principle of explaining certain difficult passages as simile- moshol, gives examples, and concludes that here too, R. Yishmael does the same.
It is not entirely clear how and in regard to what do R. Yishmael and R. Akiva disagree. One might see here a dispute as to whether the received explanation is for the entire phrase (And they shall spread the cloth before the elders of the town) or of the word 'cloth' only. R. Yishmael understands it to refer to the entire phrase, as moshol, whereas R. Akiva takes it to explain only the word 'cloth', the remainder of the verse to be taken literally. Differences in Halacha would follow.
It is tempting to see this passage as a disagreement regarding desirability of monarchy versus other forms of government, especially in light of well-known comments of Abarbanel ad loc. Careful considerations of the wording of the passage will, however, lead us to a different conclusion.
What may underly this disagreement is the exegetical tendencies of the two interpretative schools? We find that in general, the school of R. Yishmael tends to interpreting semantically and the school of R. Akiva focuses more on words, spellings and internal modifiers. While R. Akiva also utilized the 13 principles of interpretation that are associated with R. Yishmael in the beginning of the Toras Kohanim, he tended to zero in on words rather than phrases. We find that R. Yishmoel utilized Klal uPrat whereas R. Akiva used Ribui uMiut. The former is focused on meaning whereas the latter is a more technical mechanism that focuses on words. That is not to say that there is no overlap. We find in Bekhoros 51a that followers of both schools would use the methods of each other in special textual circumstances. It is best to think of this as a tendency rather than a rigid approach. R. Yishmael also famously pronounced "the Torah spoke in the language of men." ,
One might conjecture that both R. Yishmael and R. Akiva received certain traditional interpretations that they faithfully followed. At times, however, doubt arose as to which part of the verse the traditional interpretation pertains. In such case and such cases only, would each one follow his interpretative tendency, as we see in our passage.
1 22:1 If a thief be found breaking in, and be smitten so that he dieth, there shall be no bloodguiltiness for him. 22:2 If the sun be risen upon him, there shall be bloodguiltiness for him--he shall make restitution; if he have nothing, then he shall be sold for his theft. See Rashi to 22:1 and the Mekhilta ibid.
2 The issue is, who is the "him" in the verse? R. Yishmael understands it to mean 'the owner of the house into which this intruder had broken into'. Did the sun rise only over the owner? Certainly not. We must therefore understand the expression as a moshol that means peaceful relations between the owner and the intruder. It is, however, possible to take the pronoun 'him' as relating to the intruder, not the owner. Those that follow this line of thought, i.e. Targum Onkelos, understand it to mean that the intruder found himself exposed to everyone's view with the sunlight. We might translate it with a similar English expression - "exposed to the light of day." The Tragum translates: "If the eye of witnesses fell on him", meaning that the intruder was exposed to public view and therefore he would not dare to raise his hand against the owner of the house. Should the owner kill him anyway, the owner would certainly be guilty of murder. This explanation flows naturally from the discussion in Simcha Kogut, Bein Tachbir L'mikra, Mangus, Yerushalaim, TShSB, p. 169
3 A somewhat different interpretation is found in Rashi to Sanhedrin 72a.
4 See Sanhedrin 78. The Sifri appears to follow Yerushalmi Kesuvos Ch. 4 rather than the Bavli (see Netsiv's commentary to the Sifri).
5 21:18 And if men contend, and one smite the other with a stone, or with his fist, and he die not, but keep his bed; 21:19 if he rise again, and walk abroad upon his staff, then shall he that smote him be quit; only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.
6 This passage with minor variation is also found in Kesuvos 46a and Mekhilta ibid. How literal the view of R. Eliezer ben Yakov may be does not concern us at this time, see Ramban ibid and Tos. in Kesuvos ibid.
7 See Kesuvos ibid and Tosafos s.v Bishlomo L'R'abbi Eliezer
8 Sifri Dbei Rav suggests that they disagree about whether husband's witnesses who were found to contradict one another result in a fine to the husband. R. Yishmael would say yes and R. Akiva would require specifically eidim zommin. Zera Avraham explains that they do not diasagree at all but rather that R. Akiva explains and clarifies the words of R. Yishmael.
9 For example, Yerushalmi Sota 8:1
10 R. S.R.Hirsch makes essentially this point in Vol 5, of collected Writings, Fedheim, on p. 170.
11 Sanhedrin 64b. R. S.R. Hirsch on p. 177 of the Collected Writings maintains that it is a technical term, used only in cases of repetitive wording and even then, not always. An argument that appears to contradict R. Hirsch's position is that "Torah spoke in the language of men" is not used in every instance of word-doubling; on numerous occasions we "darshin" double expressions without disagreement by any Tanna on the grounds of "dibrah Torah". (A comprehensive listing of such passages can be found in Mishne Lamelech, Hilchos Deyos, Ch. 6). There must, therefore, be a semantic component that determines when the principle is used and when it is not used. In fact, existence of such a meta-principle appears to be a three-way dispute among Rishonim, see Encyclopedia Talmudit, entry "dibrah Torah".
12 It is in this sense of understanding figurative and idiomatic use of language that we find this expression used by the Rambam in Yesodei Hatorah 1:12 and Moreh 1:26, 33, 46.