Peri Megadim’s Petihah Kolelet: Introduction

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by R. Gidon Rothstein

I believe in hashgahah peratit, Divine Providence extending to individuals. Complicating matters for me, I accept some version of Rambam’s view of it, where more righteous people earn or enjoy a greater level of such Providence. It means I am rarely confident I have experienced such moments, since I have little reason to think I am righteous enough to deserve such personal interventions (communal or national interventions are a more regular occurrence, because that’s Kelal Yisrael, the Jewish people). I do have a few instances in my life I think and hope were hashgahah, Hashem helping me along, and one of them has to do with the sefer I hope to study together over the next year.

How a Valuable Sefer Came My Way

The story started many years ago, when I saw a sefer that gathered all of Peri Megadim’s petihot, introductions, into one volume. To step back: Peri Megadim is the work of R. Yosef b. Meir Te’omim (1727-1792), a commentary on the Orah Hayim and Yoreh Deah sections of Shulhan Arukh, written as glosses to Magen Avraham, Taz, and Shakh. In addition to his notes on their ideas, he wrote introductions to some sections of Shulhan Arukh, such as the laws of tzitzit, prayer, and Shabbat. After he finished the commentary, he wrote a Petihah Kolelet, an overall introduction.

That brief biography (which I took from the Bar-Ilan Responsa Project) does not do justice to the penetrating insight of the work. The Petihah Kolelet (and Peri Megadim as a whole) raises interesting and important overall and fundamental questions about the structure of halakha, with many ramifications for practical observance and/or how to rule on matters of Jewish law. At the same time, he assumed his readers knew a lot, so studying Peri Megadim unaided can be a challenge, just in tracking down the sources he references, let alone the brevity of his notes.

Back to my story. Last year, I wanted to purchase that collection of petihot, to have them all in one convenient place. I asked a bookseller I know to see if he could find it and he instead found me a volume that contains only the Petihah Kolelet. Not really what I wanted, but he had secured it for me, so I bought it.

A matter of hashgaha, because the author of the notes, R. Asher Eisenberger did great work in unpacking Peri Megadim’s cryptic references and comments (he is a rav in Detroit; the book gives his phone number, and I called it while first going through it, to thank him for his great work. He was most gracious with a total stranger imposing on his time). Originally published in 5756/1996 and reprinted in 5775/2015, it is with his help we can study the work together productively.

His version is over five hundred pages, so I hope we can extract the most interesting points over the coming year. I do not aim to be comprehensive; in case it has not become crystal clear over the eight years I have been writing here, I never fool myself into thinking I can be comprehensive, because it is not one of the abilities Gd granted me, nor one I have managed to cultivate. I am going to pick out what I can express in an interesting way, and leave the rest for those of other talents.

This time, let’s see how he introduces this General Introduction.

613 Mitzvot

He starts with Makkot 23b, where R. Samlai says 613 mitzvot were commanded to Moshe at Sinai, an idea Peri Megadim declares unequivocally accepted. [As R. Eisenberger notes, this isn’t as simple as Peri Megadim makes it. Ramban’s first gloss to Rambam’s Sefer Ha-Mitzvot questions the idea, because the Gemara itself does not seem as wedded to the concept as later authors. For example, when tannaim or amoraim, rabbis of the time of the Mishnah or Gemara, debate whether a certain idea is Biblical, the Gemara never wonders what the one who says it is not would do about the count of the 613. Nevertheless, Ramban accepts the number because so many prior scholars had. Me’iri similarly says the number is taken for granted.]

In his commentary to the Torah, Tur (son of the Rosh) noted there are 620 letters in the Aseret Ha-Dibberot, reflecting the 613 mitzvot plus the seven Noahide laws [the idea seems to be the Revelation at Sinai encapsulated all the laws Gd revealed; along similar lines, a subgenre of piyyut, liturgical poetry, connected all 613 mitzvot to the Ten Dibberot Gd revealed at Sinai. R. Saadya Gaon, for example, has such a poem]. Including the Noahide laws in the meaning of the number 620 raises complicated issues of the relationship between what we were commanded at Sinai and what existed before—Rambam famously made a principle of our being obligated only by what was said at Sinai. For example, the prohibition against eating the sciatic nerve of kosher animals is recorded in Bereshit, where Ya’akov wrestles the angel, but only obligates Jews today because Gd included it in the Torah given at Sinai. Gd may have commanded us not to eat it to remember that story, and that might be why it is written there, but its source is Sinai.

Tur’s idea also assumes the seven Noahide laws are completely distinct from the 613, when there certainly seems some overlap. [We might perhaps say that enough details of those laws differ for Tur to think they stood as two separate versions of law.]  Further, what does it mean for Tur to notice 620 letters and think seven reflect the Noahide laws, I think is part of what bothered Peri Megadim. [I could imagine answers to the question, but this is his party.]

He suggests instead it includes the seven Rabbinic rules tradition treated as their innovations, not just protective rules for the rest of the Torah (like the obligation to wash hands before eating bread; Behag counted these seven as de-oraita, sparking Rambam to reject the possibility; Peri Megadim is suggesting, although he thinks it difficult, an in-between status, that they’re not part of the 613, but were referenced at Sinai by the number of letters Gd put into the Aseret Ha-Dibberot.]

Written Explicitly or Not

The idea of Torah she-bikhtav, Written vs. Oral Torah, comes up in Gittin 60b, where R. Elazar assumes most of the Torah is written, a minority Oral, and R. Yohanan reverses the ratio. Be’er Sheva to Gittin suggests they were disagreeing about the status of halachic ideas inferred using the hermeneutical principles, the ways Hazal have of expounding the Torah.

[Let’s get this out of the way, because it’s a word I’ll end up using a lot, because I don’t know a better way to express the idea, even though this one is also big and unwieldy: hermeneutics means how we derive meaning from ideas or texts; a hermeneutical principle is a rule for how to do that. For Torah and halacha, the Thirteen Middot of R. Yishma’el we recite every morning are good examples of hermeneutical principles.]

R. Elazar thought the ideas derived are treated as if they are written directly in the text, R. Yohanan thought they count as Oral Law.

Who cares? We do. First, Be’er Sheva notes the Gemara talks about kinds of errors the Sanhedrin can make; if the Sanhedrin makes an obvious error (the Gemara expresses it as ruling incorrectly on “a matter the Sadducees concede”), the people have no right to follow their ruling. Were they to do so, each individual Jew would have to atone the error with a sacrifice, rather than bring one for the nation as a whole.

[Be’er Sheva seems to think R. Elazar held the Sadducees would accept the Written Law status of ideas inferred using middot shehaTorah nidreshet bahen, using these principles for how to extract ideas from the written text. Peri Megadim is going to add more.]

It’s More Significant Than That

Peri Megadim thinks Be’er Sheva minimized the consequences of the debate. For a first example, in the time of the Gemara, Jews still did not write down Oral Law. To follow the rule, we need to know what counts as Oral, and Peri Megadim thinks R. Elazar treated all those laws derived with the Thirteen Principles as Written, and therefore permissible to record [earlier in Gittin, 60a, the Gemara indicated we write down Oral Law only as a matter of et laasot laShem, violating the Torah to better preserve it.] For R. Elazar only purely oral laws, such as Halakhot LeMoshe MiSinai, had to be kept oral.

The second halakhic difference he raises has to do with deriving a kal vahomer. Usually, we assume such an argument (where we assume if a fact applies to a less likely case, it clearly applies to a more likely one) allows us to extrapolate only what was true of the original idea (a principle called dayo, it is enough, the fuller version of which is “it is enough to infer it logically to be as stringent as the original,” implying not more.]

R. Tarfon held—and many rule this way—we would not restrict a kal vahomer to that principle if it then destroys the kal vahomer. According to R. Elazar, who holds a logical inference is as if it is written in the Torah, we don’t need to get into dayo questions.

The Exceptional Gezerah Shavah

That’s not so relevant to us still, because we follow R. Yohanan, who treats the Thirteen Principles as a version of Oral Law. Still, R. Elazar starts on a road Peri Megadim will consider more than once, what counts as written in the Torah itself. R. Yohanan [and Rambam, much later] held all these derivations, although they produce Torah law, count as Oral rather than directly Written.

R. Yohanan would think a gezerah shavah counts as Torah shebichtav, Written Torah. It is a question to which he and we will return, how exactly a gezerah shavah defines the law it lays out. Details aside, a gezerah shavah is considered more explicit than ideas derived through the other principles, closer to or even part of the Written Law (and therefore more permissible to write down, before the principle of et laasot was invoked).

More Differences of Explicitly Biblical vs. Not

It is also in contrast to an Halacha LeMoshe MiSinai (HLMM) a rule given completely orally, for which courts do not administer the punishments they would for Biblical transgressions. Peri Megadim points to a comment of Ran, who said the prohibition against carrying in a public space on Shabbat is a subcategory of hotzaah, the prohibition against taking items from a private to a public space or vice versa. While the Gemara refers to it as an HLMM, that oral tradition tells us to include it in hotzaah. If so, R. Yohanan too would treat it as a Biblical law.

Ramban suggested Rambam held that any matter not directly written in the Torah would be considered non-Biblical in the sense of being sefeko lekula, we would rule leniently in doubtful cases. Although Ramban disagreed, many took that position, leaving it as a continuing dispute.

Later in the Petihah (Part I, letter 16, my notes tell me), Peri Megadim will suggest the idea of arvut, that all Jews bear responsibility for their fellow Jews’ observance, was only legislated regarding the Written Torah, which complicates Jews’ ability to help others fulfill their responsibility.

In another work of his, Ginat Veradim 70, he applied the question of Written vs. Oral to the issue of taking an oath. Normally, a Jew cannot take an effective oath either to keep or not keep some Torah law, because s/he is mushba veomed, has already sworn at Sinai to keep the Torah, and the new oath cannot add to or uproot the old one (there are ways around this, but it is a general rule). Peri Megadim argued an oath could apply to ideas the Rabbis derived hermeneutically (other than gezerah shavah and hekesh, where a verse links two ideas; both those manners of derivation are considered more explicit). In his view, in other words, if we know an idea only through a kal vahomer, and a Jew swears to keep it, the Jew has effectively added the Biblical obligation of an oath to the observance.

Those are the examples he offers. (I believe there are others; rolling around in my head for awhile now, Rambam at the beginning of Hilchot Mamrim talks about ways a later Sanhedrin has the power to change the rulings of a previous one. Crucially, there is a way for the later court to re-derive an idea in a different way, if the idea was originally ascertained through these hermeneutical principles. Explicit Torah law can never be changed.) They are enough to show us the value in separating out the strands of Torah or Rabbinic law, as he will begin to do in the first part of this Petihah Kolelet. And as we will begin to do next week.

About Gidon Rothstein

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