by R. Gidon Rothstein
Petihah Kollelet: A First Look at Bal Tosif
The Torah twice prohibits adding to its laws (Devarim 4;2 and 13;1), at first glance a simple idea. Peri Megadim does not tell us why he placed this discussion here, in the middle of a list of the types of rules and regulations in the Torah. From his start with Rambam’s version of the rule, Mamrim (Rebellious Ones) 2;9, we see the answer.
Rambam wonders about Chazal’s extensive rights to legislate, create obligations, add prohibitions, even sometimes ban Jews from fulfilling obligations in the Torah (such as shofar when Rosh HaShanah happens on Shabbat). Doesn’t that constitute adding to the Torah. Peri Megadim puts it here, I think, because it is essential to understanding the whole category of rabbinic rules.
Rambam’s Bal Tosif, with Besar Hayah Be-Halav, a Continuing Problem
Rambam’s solution—we will see others—was to hinge the issue on how Chazal framed their additions or subtractions. As long as they do not pretend to be reconfiguring Torah law, they will not have a problem with bal tosif or its reverse, bal tigra, do not take away. Were they to announce a Biblical obligation to light Hanukkah candles, for example, they would violate bal tosif. Being candid about its rabbinic origins avoids the problem. For Rambam, bal tosif is less about adding to or taking away from the body of laws, more about being clear not to misrepresent rabbinic legislation as Biblical.
[Ironically, this Rambam seems itself to have a problem in that regard. As I once heard mori ve-rabi Rabbi Dr. Haym Soloveitchik point out, Kessef Mishneh noted Rambam here calls besar hayah be-halav, the prohibition against cooking/eating the meat of hayyot—nondomesticated animals, like venison—in milk as a Biblical one. In Laws of Prohibited Foods 9;4, however, he labels it de-rabbanan, rabbinic.
Kessef Mishneh was sure Rambam held the view he wrote in Ma’achalot Assurot, Prohibited Foods, and wrote it differently in Mamrim to make the point one could violate bal tosif even in a particular region of the world. Hullin 113a presents the viewpoint of R. Yose Ha-Gelili, the Torah prohibited all kosher animal meat in milk. Were one to treat hayah meat in milk as rabbinic in a place that followed his rulings, the person would transgress bal tigra, taking away from the Torah, and vice verse in other places.
Prof. Soloveitchik, in my memory (from a shiur I heard well over thirty years ago, and he may in the interim have found a more satisfying answer), noted Rambam frequently changed his mind about issues over time (there are many examples of him ruling one way in the Mishnah commentary and another in the Mishneh Torah; in this instance, he codified R. Akiva’s view in the Mishnah commentary and in Ma’achalot Assurot. I forget what led Rabbi Dr. Soloveitchik to suggest he had changed his mind, but am sure he had some evidence).
His idea was Rambam may originally have taken the view it was Biblical, changed his mind, and adjusted the ruling in Mishneh Torah. In reversing himself, he fixed the main place it was written, but neglected to do it in an out of the way place. As I revisit his view from the distance of years (where back then I mostly had awe for whatever he said), I am less convinced, because this isn’t as out of the way as it seems: Rambam is using it as the paradigmatic example of when it is wrong to mislabel something.
To have forgotten to relabel after he changed his mind seems egregious. Kessef Mishneh doesn’t feel much better: it seems odd for Rambam to present a law as Biblical for those few people who are in a place that ruled according to R. Yose Ha-Gelili, a circumstance that hadn’t occurred in over a thousand years when Rambam was writing, and could mislead others into a violation of bal tosif. Tzarich iyyun.)
What Counts as Adding to a Mitzvah
Ra’avad rejects Rambam’s view, instead says the prohibition involves adding within the mitzvah (such as putting five Biblical passages into tefillin or five types of produce into the lulav set). Ra’avad seems to focus on bal tosif as a problem within the performance of the mitzvah, where Rambam also sees it in the way Jews experience an observance.
Peri Megadim suggests an idea of R. Eliyahu Mizrahi’s could help us see a reason for Rambam and Ra’avad’s views. Twice in his supercommentary to Rashi on the Torah, R. Mizrachi pointed out two ways to transgress bal tosif, where the Jew adds a new type of material to an object of mitzvah, such as a fifth kind of produce to a lulav, or more of the existing kind where it clearly joins the original unit, such as a fifth tzitzit on a garment.
Whether adding more of one of the species within the lulav (extra aravot, let’s say) is a problem depends on a dispute between R. Yehudah and the general group of Sages as to whether lulav needs an egged, to be tied together. If it does (R. Yehudah’s view), by binding in extra aravot, the Jew makes clear he intends them to be incorporated in the whole and are a problem of bal tosif. For the Sages, the lack of binding shows the extra need not be part of the original (can be decorative, e.g.), with no bal tosif transgression.
Peri Megadim says the same logic would mean if a kohen added some other verse of blessing to his birchat kohanim, it would be bal tosif (I think because the kohen is up there, clearly intending to bless the people). Repeating one of the verses the Torah laid out (saying yevarechecha Hashem ve-yishmerecha twice, for example) would not, because there is no egged, nothing forcing us to see these as linked. This kohen said the regular blessing, and then happened to start but not finish a separate blessing, with no bal tosif concerns. R. Mizrachi elsewhere pointed out Tosafot already have that idea in Rosh HaShanah, performing a mitzvah properly multiple times is not bal tosif.
Saying It’s Biblical Does Not Attach to the Performance Itself
Returning to Ra’avad and Rambam, Peri Megadim says Ra’avad seems to worry about bal tosif only if the Jew adds something linked clearly enough to the performance of an existing mitzvah to prevent us from seeing it as anything else. Declaring an observance Biblical when it is not does not attach to any existing reality and therefore has no bal tosif problem. [Later, Peri Megadim makes explicit what he only implied here: Ra’avad does not think there is a bal tosif issue if a court mischaracterizes a mitzvah as Biblical, as long as the statement does not become aggud, in some way tied into the mitzvah.]
Ra’avad cited as proof the Gemara’s willingness to present asmachtaot, Scriptural verses to ground an idea they are sure is rabbinic. For Rambam’s view, the practice should be objectionable because it carries the risk of confusing the rabbinic with the Biblical—it certainly seems like the Gemara is saying this practice has some source in Scripture, regardless of their adding the words asmachta.
Kessef Mishneh defended the Rambam on that point, noting Rambam’s concern is misrepresenting the mitzvah, where in these cases they openly say it is rabbinic, the verse “just” an asmachta. Rambam also has to say Chazal’s inserting leniencies into rabbinic legislation was important on these grounds as well, in that it, too, shows these are not full-fledged Biblical laws (because, remember, Rambam holds all rabbinic laws are also Biblical, because of the prohibition of lo tasur; they did not call for Biblical lashes here, and had the principle of safek le-kula, to be sure we not think they thought their laws were the same as Biblical ones).
Rashba adds a bit of a twist. In his view, the escape from bal tosif in rabbinic legislation stems from a particular right the Torah gave the Great Court, the central Sanhedrin, to bind the Jewish people with their orders. We sit in the sukkah on the eighth day, outside of Israel, despite knowing it is no longer Sukkot, because they said so, and that’s not bal tosif (not because they made clear it was rabbinic).
Let’s close with Peri Megadim’s calling the whole preceding analysis into question from the example of a kohen adding a blessing to the birchat kohanim. Rosh HaShanah 28b prohibits his saying “I will add a berachah of my own,” without qualification, where we would have thought without any sort of egged, link, to the original mitzvah performance, it does not become part of it enough to be bal tosif.
He leaves it, and so will we, having seen some complications of the basic question of bal tosif: what counts as making an addition the system recognizes (and objects to) as inappropriate adding? More next time.