The Hierarchy of Halachah

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by R. Gidon Rothstein

The Hierarchy of Halachah in the First Part of Peri Megadim’s Petihah Kollelet

Peri Megadim gives us so many legal technicalities as he makes his various points, we might lose sight of the bigger picture: he spent the first part of this Petihah showing a range of levels of obligation in halachah, with important ramifications in the differences. It is a vital point I find often lost: while all halachah is obligatory, the nature and source of obligations matters for many reasons, such that confusing a Biblical rule with a custom, let’s say, is consequential beyond revealing a suboptimal understanding of the system.

I caution that this is a summary, perhaps a precis, not an attempt to compress all the information of this part of the Petihah into one or two essays.

The Written Torah

The top of the pyramid, certainly, are Biblical commandments, anything written explicitly in the Torah. Primarily, that means the 613 (a number Peri Megadim asserted was unequivocally accepted), but the Torah includes commandments and obligations we do not count for technical reasons.

More surprising, some derived laws or ideas seem to be included in Written Torah. The most extreme view would be Be’er Sheva’s conception of R. Elazar in Gittin 60b, anything the Rabbis derived based on the Thirteen Middot, the thirteen principles of proper inference, counts as Written Law.

We follow R. Yohanan who disagreed, but R. Eli’ezer’s idea has a bit of life in the case of a gezerah shavah, where tradition understands the laws of one area to apply to another one as well, based on the Torah using the same word in the two places. Because the Gemara rules out coming up with a gezerah shavah on one’s own, says they are all received tradition, Peri Megadim thinks they count as explicitly written in the Torah.

In addition to gezerah shavah, two other modes of reading the Torah could count as Written Torah. Hekesh is where a verse juxtaposes two ideas, and im eino inyan says if a verse relates an idea unneeded for its primary message, the idea can be applied elsewhere. These, too, might count as Written, according to Peri Megadim.

Derivations based on other principles, including kal va-homer, the logical extrapolation from a less clear case to a more clear one, do not count as explicitly written in the Torah.

Written Vs. Non

Reasons the distinction between Written and not matters: 1) Court-administered punishments for Biblical laws differ than for non-Biblical. Makkot, Biblical lashes, for example, come only for Torah law.

2) Doubt. We rule stringently in doubt about matters of Biblical law, leniently in rabbinic. Ideas derived with the Thirteen Middot, if we consider them non-Biblical for these purposes, gain significant new avenues to leniency.

3) Arvut, the bond between Jews that allows one Jew to perform a mitzvah for another Jew; Peri Megadim assumes the link only exists within laws found in the Written Torah (and not, for example, halachah le-Moshe mi-Sinai, laws given orally to Moshe). This is a topic of repeat interest for him; he thinks rabbinic laws might also have arvut, because they all come under the heading of lo tasur, the Biblical prohibition against straying from what the Rabbis tell us, and therefore have Biblical roots.

4) Taking an oath. For Written Torah, a Jew cannot effectively take an oath to countermand what had been accepted at Sinai, including for obligations. Anything else was not included in the Sinai experience, and therefore could be susceptible to other oaths.

Later in the Petihah, he gives another prominent example (besides halachah le-Moshe mi-Sinai) of a Biblical prohibition not written in the Torah despite being Biblically prohibited– hatzi shi’ur, partaking of a prohibition with less than the minimal amount for a full-fledged violation. He wonders whether doubtful cases of hatzi shi’ur are prohibited as well.

Capital Crimes

Nor are all Biblical laws of one type, as is clear based on the various punishments courts can administer. Knowing the gradations matters for various reasons, including how we would choose to act when saving a life. If we have choices that will not impact the effectiveness of our life-saving efforts, we are supposed to violate the Torah as minimally as possible, which we can only do if we know what counts as what.

Capital crimes are the most serious, with impact regardless of whether  the punishment will be administered. The rule of kim lei be-de-rabba minei tells us a more serious punishment precludes a more minor one, meaning someone who transgresses a capital crime, even unwittingly and therefore with no court-administered punishment, would still be exempt from any lesser consequences of the action, such as repaying monetary damages.

Peri Megadim pointed out the huge loophole this could create, since courts only extract money when they are certain a person is liable. In any case of a possible capital-level crime, a person who causes damage will be exempt from payment. This can be where we are not sure of the law or of the case. Other issues can affect our ability to collect damages as well, for example hazakahhalachic assumptions about a state of affairs, leading us to construe a case one way or another. [It is a reminder that any legal system, including halachah, has rules of evidence, rules of construction of cases, rules of assigning damages or not, all of which can lead to outcomes in specific cases we find problematic. A discussion for another time, but likely one reason for the rule courts can punish or extract money without regard to technical law, where the cause of Torah and/or justice calls for it.]

Lashable Transgressions, Plain Prohibitions, Obligations

A step down from hiyyuvei mitah, capital crimes, we have where the Torah prescribed lashes. Kim lei comes into play with lavin, these plain prohibitions, albeit only when the lashes are actually administered. The fact of a crime being susceptible to lashes does make the knowing sinner pasul le-edut, invalid as a witness,  even where he does not in fact receive the lashes, until he effectively repents his sin. Peri Megadim, however, says “knowing” means the sinner knows a human court could theoretically punish this act (if he thinks the only punishment is karet, excision by Gd, Peri Megadim does not think he becomes pasul le-edut, does not lose his witness-validity).

Many Biblical prohibitions are not punishable by lashes, for various reasons: the Torah included the verse of prohibition to set the stage for capital punishment (in accordance with the rule ein onshin ela im mazhirin, the Torah does not punish without first issuing a warning), the Torah included many prohibitions in one phrase (lav she-bichlalut), there is no action involved in this transgression (lav she-ein bo ma’aseh), and more. They do count as prohibitions, however, so the idea of ein issur hal al issur comes into play, an item already prohibited cannot be further prohibited without some new information, nor will an oath about them take effect.

Complications of Asehs and Rabbinic Power Over the System

Obligations raised two other questions for Peri Megadim, whether Hazal would institute protective ordinances and the power of the principle of aseh doheh lo ta’aseh, the need to perform an obligation (such as wearing tzitzit on a four-cornered garment) can push aside a prohibition (such as sha’atnez, where wool tzitzit with techelet are being put on a linen garment).

Peri Megadim has thus showed us many of the nuances and concerns of Torah law itself. In addition, he points out Hazal have many ways to affect our experience of Torah law without their legislating any new law.

They can tell us to refrain from an observance, such as blowing shofar when Rosh HaShanah coincides with Shabbat, although only when their rule will not uproot the Biblical idea completely. Nor can they tell us to refrain from anything the Torah explicitly allowed, such as circumcision on Shabbat. In his view (the matter is debated), they are also limited to the preventive, telling us to refrain from action, may not tell Jews to actively violate a Torah law.

Divrei Kabbalah

We might forget to include Peri Megadim’s next category in our hierarchy of halachahdivrei kabbalah, laws appearing in Nach, the parts of Scripture after the Torah. Easy examples are Purim, honoring and enjoying Shabbat, and reciting Hallel; he adds public Torah reading, which Yerushalmi Megillah said was instituted by Moshe with the other prophets of his generation.

There’s a subtle distinction between these and ordinary rabbinic laws, such as lighting Hanukkah candles. For divrei kabbalah, a minor cannot be the agent of fulfilling adults’ obligations, because the minor is obligated as hinuch, the rabbinic (slightly lower level) requirement to educate children in mitzvot.

For divrei kabbalah, as with Torah law and in contrast to rabbinic law, we opt to be stringent in cases of doubt. [He doesn’t discuss the theological issues with divrei kabbalah, given the idea that Gd stopped handing down divine legislation after Sinai. There are options as to how to answer the question, mostly by assuming the prophets reflected pre-existing law. Even if so, the choice to leave it out of the Torah changed its halachic standing).

That’s all the laws with some sourcing in Scripture. I had hoped to recap the whole Petihah in one essay, but I will have to be satisfied with two. Next time, I will be even more draconian in completing our review of the main points of the first part of the Petihah.

About Gidon Rothstein

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