by R. Gidon Rothstein
Jewish Unity and the Oral Law
Paragraph sixteen of the first part of Peri Megadim’s Petihah suggests arevut, the principle of Jew’s responsibility for each other, encompasses only the Written Torah. For Jewish practices found only in the Oral Law, perhaps Jews never took on arevut.
A clear practical ramification comes when one Jew wants to perform a mitzvah act to help another fulfill an obligation. With obligations written in the Torah, a Jew who has already himself fulfilled the obligation can nonetheless do it again on behalf of the other, because arevut makes it as if this Jew also still has not completely fulfilled the obligation. For Oral Law, (or halachah le-Moshe mi-Sinai, or inferred by the hermeneutical principles, R. Eisenberger tells us Peri Megadim says elsewhere), the same connection does not exist.
Shulhan Aruch Orah Hayim 167;19-20 points us in that direction, R. Eisenberger tells us, because he prohibits making a berachah on food for someone else if the person making the berachah does not intend to eat. Shulhan Aruch includes ha-motzi on bread on Shabbat, and Levush says it is because the obligation to eat bread on Shabbat is not explicit in the Torah (as opposed to eating matzah on Seder night, when there is an explicit obligation, so that a Jew would be allowed to recite the berachah on behalf of another Jew even if the first has no intention of eating there, such as one running a Seder for others who plans to have his own Seder later).
Of course, all these blessings are a matter of rabbinic law, but we are assuming that if the person is obligated in some way, s/he can also recite the berachah without its being considered invalid.
Arevut and Rabbinic Law
Peri Megadim thought arevut also applied to rabbinic laws, because he accepted Rambam’s idea all rabbinic laws are covered by the Torah’s lo tasur, do not stray (from what the Rabbis tell you), al pi ha-Torah asher yorucha, follow all the rules they instruct you. Much as we saw with taking an oath, Peri Megadim is saying that here, too, non-explicit Torah laws are not included in arevut, yet rabbinic laws are. It suggests, although he does not say it, Jews are linked to each other more by rabbinic laws than the expansions of Torah law because rabbinic law is more explicit in the Torah itself.
These non-explicit Biblical laws also are not as clearly amenable to protective legislation, Peri Megadim suggests. Vayikra 18;30 says u-shmartem et mishmarti, keep or protect Gd’s charge, a verse seen as the source for rabbis’ right to make their ordinances, yet mishmarti might only extend to what is explicit in the Torah.
Limits to Protection
Nor is all explicit Biblical law necessarily included. Peri Megadim points to Biblical laws he thinks are themselves already a seyag, protection for other Torah laws. Halachah’s general rule against a seyag le-seyag, a fence to a fence (a rule often breached, by saying the supposed extra fence is really part of the original one, not our topic now).
If so, some Biblical rules might not be eligible for rabbinic protection. Tashbetz suggested (in a work called Yavin Shemu’ah) that bal yera’eh, the prohibition against owning leavened grains on Pesah, was a Biblically-instituted aid to avoid the “real” problem, eating such grains. We have also already noted the view hatzi shi’ur, the prohibition against smaller than minimum amounts of a prohibited item, is protective. Put the two together, perhaps there is no problem of bal yera’eh for less than a kezayit. (Aruch Ha-Shulhan Orah Hayim 431;10 takes for granted the Biblical prohibition does not apply; whether the rabbinic requirement of getting rid of hametz includes less than a kezayit is less clear).
Similarly, Peri Megadim notes a Midrash that picked up on the angel’s using the word na, often understood as “please,” when telling Shimshon’s mother not to eat any grapes or vinegar. Because the prohibition on those was protective, to keep the nazir from forgetting and drinking wine (the real concern; note, in both these cases, arguments could be made the other way, that the Torah had an inherent reason to oppose owning hametz and/or the nazir partaking of grapes), a hatzi shi’ur of grapes should be a seyag le-seyag, so he has to make an especial point of it, because Shimshon needed special protection.
It implies any other nazir would have no Biblical prohibition to have less than the punishable amounts of wine (but might be banned rabbinically, showing Peri Megadim thinks the rabbis might have the power to make such rules even if the Torah would not). He floats the possibility Hazal, too, would not have the right to make rules to protect such practices, because they are not original mishmeret.
The Fourth Level of Legislation
So far, the laws we have discussed have been 1) explicit in the Torah, 2) close to explicit in that they are taught by a hekesh or gezerah shavah, and 3) Biblical but not explicit, such as halachah le-Moshe mi-Sinai and laws inferred by use of the hermeneutical principles.
Peri Megadim’s fourth category is made up of laws appearing in Nach, divrei kabbalah. He gives three examples, the mitzvot of Purim, of kavod ve-oneg Shabbat (honoring the day with nicer clothing and enjoying it with tasty food), and reciting Hallel, showing us divrei kabbalah, too, contribute essentially to our ordinary religious experience. (An earlier work, Shu”t Tzemah Tzedek—not the one written by the third Lubavitcher rebbe—claimed oneg Shabbat was a Biblical obligation; Peri Megadim disagrees.)
Public Torah reading belongs to this category as well, as Yerushalmi Megillah 4;1 tells us Moshe joined with the other prophets of the generation and established this as an ordinance (in his role as a regular prophet, rather than direct conduit of Gd’s commands; R. Eisenberger notes some debate about whether public Torah reading is in fact “only” divrei kabbalah).
It explains why a minor may not read the Torah or Purim Megillah in public, as his obligation is rabbinic (a matter of hinuch, education), where adults are obligated by divrei kabbalah, a higher level. The same insight resolves Magen Avraham’s problem with the discrepancy between Shulhan Aruch’s disallowing a minor from reading Megillah on Purim, Orah Hayim 689;2, where 675;3 was more comfortable with the minor lighting Hanukkah candles for an adult. Megillah is divrei kabbalah, where Hanukkah candles are de-rabbanan, as is hinuch.
As an example of how divrei kabbalah sit at a higher level than rabbinic rules, Peri Megadim suggests we would opt to be stringent in cases of doubt about such mitzvot, as with Biblical laws. That explains the custom in some cities (such as Prague) to read Megillah twice if they have reasonable doubt they might have had a wall in the time of Yehoshu’a. Such stringencies aren’t needed for rabbinic rules, but divrei kabbalah are stricter. (He questions the example, because many sources argue Megillah and Purim are safely ensconced enough in the Jewish religious imagination to not need this stringency).
He offers one last example of divrei kabbalah, donating clothing to those without, an idea that appears in Yeshayahu 58;7. (As with kavod ve-oneg Shabbat, some argued this was fully Biblical.)
With that, we have reached the end of those Jewish laws and rules with roots or connections to the word of Gd itself. There is what Gd said in the Torah, including what the Oral Law told us the Torah meant; what was derived in ways that seem to make claims about the meaning of the explicit text (hekesh/gezerah shavah); what was derived in looser legitimate ways or was orally given with the Torah; and then divrei kabbalah, ideas the prophets shared, independent of the Torah.
Next time—meaning after Pesah, so hag kasher ve-sameah—we will start our long walk through types of rabbinic rules.