by R. Gidon Rothstein
Petihah Kollelet: Rabbinic Laws with Some Connection to Scripture
We all know the category of rabbinic law, in prohibitions and obligations. For prohibitions, Peri Megadim gives the examples of Hazal’s including fowl in the prohibition of basar be-halav, cooking, eating, or gaining benefit from meat cooked in milk, as well as their adding more types of relationships to those the Torah prohibited as arayot, forbidden sexual congress.
For obligations, he gives an obvious example, lighting candles on Hanukkah, and then also a not-so-obvious one, reading the Megillah on Purim and sending food to others. Not so obvious because he has previously said the mitzvot of Purim appear in Tanakh and therefore count as divrei kabbalah. It’s an unresolved question R. Eisenberger works on, and I will leave for now.
Two Kinds of Asmachta
We sometimes find the Gemara give a verse for a rabbinic law, which implies the law is “more” than rabbinic. In some case, such as Berachot 41b, the Gemara then dismisses the verse as asmachta be-alma, “just” an asmachta. Normally, I would say the Gemara means they cited the verse as a thread on which to hang a rabbinic idea, without any claim it is what Scripture intended.
Peri Megadim complicates our lives, because he shows there can are two kinds of asmachta, hashuvah, important in the sense it provides a significant link between the rabbinic idea and Tanach, and asmachta be-alma, a verse invoked with no deep connection. The rabbinic law to wash one’s hands before eating non-sacrificial food (usually bread) has both types of asmachtot in the Gemara, offering us a chance to see the difference.
Hullin 106a has Rava tell us R. Elazar b. Arach linked the practice to Vayikra 15;11, a verse about a zav, a man who is ritually impure because of emissions from his body. The verse speaks of his not having washed his hands. Berachot 53b has R. Yehuda in the name of Rav or a baraita infer the same idea from Vayikra 11;44, you shall sanctify yourselves and be sanctified. To explain the redundancy, Rashba in Torat Ha-Bayit (R. Eisenberger reproduces the passage for our convenience) says the verses address separate audiences; Ra’ah (R. Aharon Ha-Levi, a colleague of Rashba’s, who wrote extensive glosses on Torat Ha-Bayit, know as Bedek Ha-Bayit) instead says the verse in Hullin, which speaks of washing one’s hands, is an asmachta hashuvah, where the verse in Berachot is asmachta be-alma.
Practically, Peri Megadim thinks a rabbinic rule with an asmachta hashuvah is treated much more like a Biblical law than other rabbinic rules. He has previously accepted Rambam’s idea all rabbinic law is covered by the verse of lo tasur, making it all Biblical. Only because Hazal themselves allowed it as part of their legislation do we take the lenient perspective in doubtful cases, allow kevod ha-beriyot, issues of human dignity, to stop us from fulfilling a rabbinic law, and refrain from making a gezerah le-gezerah, a second protective ordinance to an existing one.
If those laws have an asmachta hashuvah, he now argues, Hazal wanted us to treat the laws more like Biblical ones, did not allow us these outs.
Proofs of Asmachta Hashuvah Making Matters More Biblical
Peri Megadim has credited the idea to Ra’ah, and now supports it with six occasions where halachah treats a matter as Biblical when he is sure it is rabbinic, with an asmachta hashuvah. [Before we see them, I note he makes it more urgent to know how to distinguish when the Gemara experiences an asmachta as hashuvah; his examples make clear the matter is not clear, another wrench in any halachic discussion, because two decisors can agree on everything and yet reach opposite conclusions based only on their evaluation of how seriously the Gemara meant a verse, whether an asmachta be-alma or hashuvah).
Gittin 59b lists some activities instituted because of darkei shalom, the ways of peace, among them giving the first portion of Torah reading to a kohen. The Gemara questions the example, because it seems to be a Biblical requirement, an expression of ve-kidashto (Vayikra 21;8), the Biblical obligation to treat priests with special honor. Peri Megadim is sure the verse is an asmachta, yet the Gemara calls it a de-oraita (although Peri Megadim later does note Rambam included ve-kidashto in his list of Biblical commandments, meaning he took the Gemara literally). Solution: asmachta hashuvah, a link close enough to allow for treating the idea as a Biblical one.
Treating Doubtful Cases Stringently
His second example concerns muktzeh, where the beginning of Beitzah refuses to be lenient about a doubtful case of muktzeh, despite the prohibition against moving certain objects being rabbinic. Peri Megadim says muktzeh has an asmachta hashuvah (he does not provide the verse; my Bar-Ilan search gave me other aharonim— Penei Yehoshu’a, Hatam Sofer, and R. Elyashiv– who said it was Shemot 16;5, ve-hechinu et asher yavi’u, about the man that fell on Friday, the Jews should prepare what they intend to bring (or eat) on the next day, Shabbat).
Tur Orah Hayyim 209 says one must repeat Al Ha-Mihyah or Al Ha-Etz, the blessing recited after eating one of the seven species for which Israel is celebrated, if s/he is uncertain whether he already said it. Since this blessing is rabbinic—only the full-fledged Bircat Ha-Mazon is a Biblical obligation—we expect the rule to be safek de-rabbanan le-kula, go leniently about a rabbinic rule. Here, too, Peri Megadim thinks there is an asmachta hashuvah, sources apply the verse for Bircat Ha-Mazon to eating other fruits for which Israel is known and praised. (This is where he acknowledges Rambam apparently did not recognize this category, because he ruled one does not recite Al Ha-Etz just in case.)
Levush thought this idea also explained why someone who had eaten only enough to be obligated at a rabbinic level—a kezayit, an olive’s worth—could recite Bircat Ha-Mazon on behalf of someone who ate a fully satiating meal (the standard for a Biblical obligation, according to many authorities). For Levush, the verse of ve-achalta was used to support the idea of Bircat Ha-Mazon when the person did not eat to fullness, and made it close to a Biblical obligation. (Peri Megadim notes others disagree, such as Magen Avraham, and attribute it to arevut, to Jews’ obligation to help fellow Jews fulfill their obligations, a topic we discussed last time.)
A Verse Makes It Biblical
Tosafot Avodah Zarah 22a cites a challenge Rabbenu Elhanan posed to his great uncle, Rabbenu Tam, about the prohibition of melachah (creative labor) on Hol Ha-Mo’ed, the intermediate days of holidays. Rabbenu Tam said the prohibition was rabbinic, where Mo’ed Katan 11b refers to it as Biblical. Rabbenu Tam replied that Hagigah 18 offers a verse to support the prohibition, Shemot 23;15, a verse Rabbenu Tam was sure was an asmachta. Peri Megadim says he clearly means asmachta hashuvah.
Sotah 44a gives us his last example, where the Mishnah lists those who are not required to go to war by virtue of sins they have committed (and therefore properly count themselves as fearful, because their sin makes it more likely they would be killed in war). The list includes a kohen who married an halutzah, a woman who had undergone the spitting-in-the-shoe ceremony to free her from marrying her brother-in-law after her husband passed away without children. The kohen’s prohibition to marry her, however, is rabbinic (so the Torah should not include it among sins freeing a soldier from war), leading Tosafot Yom Tov to dismiss it as having been included in the list mistakenly.
Peri Megadim instead says it is a rabbinic law supported by an asmachta, Vayikra 21;7. The verse says “and a woman who was divorced,” taken by Yevamot 24a to allude to an halutzah. (The example shows us the difficulties I mentioned earlier, because the Gemara first thinks the idea must be Biblical based on the verse, then says, no, it is an asmachta be-alma. Peri Megadim is saying the Gemara meant it was an asmachta hashuvah. If he is right, we cannot be sure an asmachta is “only” an asmachta even where the Gemara says it is; it might still be an asmachta hashuvah.)
He then gives two counterexamples, both linked to Shemot 16;29, no man should leave his place on Shabbat. The Gemara applies the verse to staying within two thousand amot of one’s city as well as to eruv, the combining of several private areas into one big one, to allow carrying from one to the other. In both cases, the Gemara says we rule leniently about doubts, because they are rabbinic. Tehumin is a little easier, because the Gemara explicitly says the idea was instituted to be treated leniently; for mixing private spaces, he is less confident of why we are allowed to treat it leniently.
(He does not tell us how he knows this must be an asmachta hashuvah. Enough said.)
I could stop here, except Peri Megadim is about to launch into a long discussion of makkat mardut, the lashes given for violating rabbinic rules, a topic I think will take us more than one time, so let me briefly note his last category before that, regular rabbinic rules, with no link to a verse. He reminds us Rambam held these all nonetheless become instances of the Biblical prohibition of lo tasur.
Rabbinic obligations require a berachah before fulfilling them, as opposed to doubtful Biblical obligations, where the matter is less clear. In Orah Hayim 67;1, Shulhan Aruch requires repeating Shema with its blessings if one is unsure whether he said it, where in 17;3, Shulhan Aruch had ruled those of uncertain sexuality would don a tallit without a blessing (this follows Shulhan Aruch’s view in general, those exempt from an obligation who choose to perform it do not recite a blessing), similar to Yoreh De’ah 265;3, an androginos would not make a blessing on his circumcision.
Resolution was provided by Derishah, who said a Jew who knows him/herself to be obligated in a certain mitzvah but is uncertain as to whether s/he fulfilled it would make a blessing, where a person unsure of whether s/he fits the criteria for the obligation at all would not.
Rabbinic law for Peri Megadim came with or without Scriptural allusion, those allusions of greater or lesser strength, affecting our experience of those laws, particularly in cases of doubt. Next time, we will learn about how Hazal could discipline those who flouted their regulations.