Finishing Bal Tosif, Finishing De-Rabbanan

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by R. Gidon Rothstein

Petihah Kollelet: Finishing Bal Tosif, Finishing De-Rabbanan

In this week’s installment, Peri Megadim continues to struggle with Rambam’s view of bal tosif, and the prohibition generally.

To How Many Mitzvot Does It Apply?

He briefly wonders why Rambam did not prescribe lashes for violating bal tosif. The reason cannot be bal tosif’s counting as a lav she-bichlalut, a general prohibition relevant to many issues, and therefore without lashes for any one of them. He does not explain his confidence, says mevuar ha-perat she-bo, the single element of it is clear.

R. Eisenberger assumes he means the prohibition mainly addresses the Sanhedrin or prophets, who would be most likely to add to the Torah (or take away), and is therefore notshe-bichlalut.Maharatz Chayes thought it nonetheless fully explained the lack of lashes for anyone other than the Sanhedrin or prophets, since the prohibition did not address them. Peri Megadim does not say any of that.

(Were I to venture a guess, I would say the perat she-bo, the detail that makes it not a lav she-bichlalut, is that the prohibition is not within all the other mitzvot, it is its own prohibition. Were sitting in a sukkah more than the Torah said to be a mistreatment of the mitzvah of sukkah, or wearing too many passages in tefillin a violation of tefillinbal tosif would indeed address many cases and be a lav she-bichlalut.

I suggest Peri Megadim meant one who does any of these things has violated this completely separate prohibition, each of these only a manifestation; the problem isn’t the sitting in the sukkah or the extra passage of tefillin, it’s the adding to an existing mitzvah, whatever the mitzvah. I think a similar question is raised about hatzi shi’ur, one who transgresses a prohibition with less than a punishable amount might violate the prohibition itself—eaten pig, for example—or a separate one of hatzi shi’ur.)

Whatever convinced him, he proves there should be lashes from Abbaye’s question (Rosh HaShanah 28b), why does someone who sleeps in the sukkah on the eighth day not get lashes. Abbaye takes for granted adding to a mitzvah could get lashes. Peri Megadim notes but dislikes the idea Abbaye meant rabbinic lashes. (I note Rambam did not codify this idea of Abbaye’s, likely for technical reasons of the flow of the Talmudic discussion, but perhaps also because he did not think there should be lashes, although it’s not clear why he held that way. Nor does Peri Megadim suggest a reason.)

Only Torah Law?

He devotes more space to his next question, the limited scope Rambam accords the prohibition. Rambam several times (introduction to the Mishnah Commentary, the introduction to Hilchot MamrimMamrim 2;9) limits the prohibition to matters of Torah law or its authoritative interpretation. Peri Megadim is less bothered by the primary implication, a court will not violate bal tosif if it falsely declares some issue to be a matter of halachah le-Moshe mi-Sinai, a tradition dating back to Moshe at Sinai without any Scriptural basis.

He is more bothered by the idea bal tosif would not include purely rabbinic laws, such as lighting Hanukkah candles. Rambam seems to him to have worried about bal tosif only when it addressed an existing issue of Torah law, such as sitting in a sukkah on the eighth day (or even the rest of the year, he says, depending on how we read Rava’s view in certain Talmudic passages).

It will take him awhile to come back to the question. On the way, he cites an earlier work of his, Rosh Yosef, novellae on the Talmud, Shabbat 25b). Tosafot in a few places wonders how we allow ourselves to blow shofar extra times on Rosh HaShanah, such as both before and during Mussaf. Rambam’s answer would have been that we do not pretend all of those are Biblical, so there is no bal tosif problem. Rashba held the central courts are allowed to legislate, so all of their rules have no bal tosif issue [in a sense, he is the opposite of Rambam, who thought the main version of bal tosif has to do with a court’s or Sanhedrin’s decisions].

Tosafot raised another possibility, performing a mitzvah multiple times is not a bal tosif problem. Peri Megadim assumes they agreed with Rashba, any ordinance enacted by a court to protect Torah law has no bal tosif problems (such as their decree to keep a second day of holidays outside of Israel despite there being a fixed calendar, lest Jews of exile find themselves without a calendar).

Tosafot questioned multiple shofar blowings because those were instituted to confound the prosecuting angel rather than to protect the Torah. They solved the problem with the realization of another exception to bal tosif, where a Jew performs the ordinary mitzvah, just multiple times. No bal tosif there, either.

Intent as a Mitzvah, A Mitzvah In Its Time

A detail of the question depends on the attitude of the person doing the extra performances. When the Gemara discusses a kohen adding a blessing to the priestly one, it quotes him as saying mi-sheli, I will add a blessing of my own, implying he has no intent to fulfill the original mitzvah with those words. [In which case, bal tosif can be violated regardless of the intent to add to the Torah]. In contrast, Rava’s answer to Abbaye’s question about sleeping in the sukkah on the eighth day was that outside the original time of the mitzvah, bal tosif requires intent.

The general principle solves many of the problems in the topic: to violate bal tosif within a mitzvah’s time (such as while in the act of reciting the priestly blessing) does not need nefarious intent, where outside of its time does (sitting in a sukkah in May has no meaning of mitzvah unless the person gives it such, where wearing tefillin with extra passages in them inherently adds to the act).

The idea explains why there might be a problem with offering sacrificial blood where we do not know how many times this type of blood is supposed to be thrown, placed, or poured on the altar (R. Yehoshu’a thinks we have to be careful not to sprinkle or pour it more times than the Torah prescribes. Since the person clearly does not wish to add to the Torah, it must count as being within the time of the mitzvah, and therefore necessarily adds).

On the other hand, Sukkah 31a presents a dispute between R. Yehudah and the consensus Sages about tying the four species in a lulav with material from another plant. R. Yehudah sees a bal tosif problem, the Sages do not, because in their view, the egged, the tie, is unnecessary, and therefore the extraneous material stays separate from the fulfillment of the mitzvah. However, we just said bal tosif at the time of a mitzvah’s performance needs no problematic intent, just presence of the extra item!

R. Eliyahu Mizrachi suggested the Sages saw the tie as purely decorative, an idea that should leave room to add tomitzvotin other areas without a problem (such as the sacrificial blood service, where the person could have the intent that extra blood count as water). Peri Megadim suggests blood is different, more clearly tied to the service, or this is a specific aspect of the Four Species, extra ones do not become incorporated.

Bal Tosif Within Rabbinic Laws

Now is when Peri Megadim comes back around to an issue he raised earlier, whether bal tosif applies to de-rabbanan, issues of rabbinic law. Rambam’s excluding halachah le-Moshe mi-Sinai from bal tosif problems while referring to issues known mi-pi ha-shemu’ah, from the Oral tradition, convinced Peri Megadim Rambam assumed a Jew could transgress bal tosif by adding to rabbinic laws as well.

Hanukkah candles pose a problem, because the Gemara allows for various levels of observance, one candle, one per family member, or one per day of Hanukkah. [In seeing this as a problem, Peri Megadim makes another nonobvious assumption, having more candles must be adding to the primary observance. I could have imagined Hazal instituted the mitzvah with three levels, which would obviate bal tosif concerns.]

Tosafot have no problem, because they permitted multiple performances of a mitzvah without it bringing up bal tosif concerns. Here, each new candle is simply another fulfillment of the mitzvah. [I think he assumes, reasonably, Hanukkah candles need not be connected or linked by a menorah; otherwise, I would wonder why that’s not like egged for the lulav, putting them together makes them part of a single performance.]

Rashba and others disagreed about fulfilling a mitzvah many times, but they thought the power of Hazal to legislate negated the possibility of bal tosif for a de-rabbanan. The puzzle is Rambam, who held every rabbinic rule includes the Biblical prohibition of lo tasur, not to stray from what rabbinic leadership tells us. Only that justifies saying ve-tzivanu, Gd commanded us, in the berachah before fulfilling a rabbinic obligation.

He suggests a distinction between rules enacted to protect Torah law (a seyag or a geder, or in Rambam’s language, a gezerah or a takkanah), where lo tasur comes into the mix (because they were attached to an existing Torah law), as opposed to wholly new legislation, lighting Hanukkah candles, reading Megillah on Purim, etc. He knows it’s not fully convincing, because we recite blessings before those mitzvot, which he is sure means they must be part of lo tasur, although the Gemara never addresses lo tasur regarding rabbinic rules. (R. Eisenberger notes another problem, Rambam’s introduction to MIshneh Torah brings up seven examples of innovative rabbinic legislation, such as these holidays, and explicitly includes them in lo tasur).

Performances From Which One is Exempt

A Rashi in Rosh HaShanah seems to raise bal tosif regarding women blowing shofar on Rosh HaShanah. While Maharsha re-reads the comment, the idea raises a broader problem: when people perform mitzvot voluntarily (women being the example here), why isn’t that inappropriate adding to the Torah? As Peri Megadim notes, we all agree women are welcome to perform mitzvot aseh she-ha-zman grammamitzvot with a time component (Ashkenazim and Sefardim differ only on whether women make the berachah before the mitzvah).

The solution lies in Rambam’s basic idea, bal tosif mostly cares about clarity on what constitutes Torah law and what does not. As long as people who act supererogatorily, in ways from which they are exempt, know they are being stringent with themselves, taking on what they need not, there is no bal tosif issue.

(One of the first articles I ever published responded to a Conservate rabbi who argued women could accept upon themselves the obligation to fulfill the mitzvot from which they were exempt, and then be equally obligated as men. At the time, I dealt with his specific arguments; here, Peri Megadim is adding stakes to the issue: if the women come to think they are now obligated by the Torah in ways they are not, we have a bal tosif problem.)

Bal tosif turns out to be a prohibition without lashes, for not perfectly clear reasons, that applies to all Torah law, including that known through the Oral Law, but not to halachot le-Moshe mi-Sinai, laws known purely orally albeit from Sinai, and probably not rabbinic rules. Especially for Rambam, being clear about the source of a practice matters more than we might have thought, because mislabeling non-Torah law as de-oraita or vice-verse, mislabeling Torah law as not, violates bal tosif or bal tigra, adding to or taking away from the corpus of law.

Next time, minhag, custom.

About Gidon Rothstein

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