Beyond Biblical: The Petihah Kollelet On Rabbinic Law

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by R. Gidon Rothstein

Biblical Fences

Although I claimed to have finished my short-version re-summary of Peri Megadim’s discussion of laws with roots in Scripture last time, one of the first points he makes about Rabbinic law also takes us back to the Biblical. Hazal point to Vayikra 18;30, u-shmartem et mishmarti, guard My charge (English translations have “keep”) as what empowers them to legislate; if so, there may be no right to guard what was set up to guard, an idea the Gemara often phrases as ein gozerin gezerah le-gezerah, we do not make a protective rule to ensure observance of what itself is protective.

The idea might apply to some Biblical laws. Peri Megadim accepts the view the Torah itself creates seyagim, protective fences. The prohibition of bal yera’ehowning leavened grains on Pesah, is in his view a Biblically instituted protection against eating the hametz, as is hatzi shi’ur, the prohibition against partaking of less than the minimal amount of any prohibited item. If so, perhaps there is no hatzi shi’ur prohibition for bal yera’eh, as that would be a seyag le-seyag, a double protection. Peri Megadim suggests the same for the a nazir’s proscription from eating grapes, which he think is likely the Torah’s protecting the nazir from the “real” prohibition, drinking wine.

Rabbinic Rules with a Connection to Scripture

The Gemara often offers a verse for rabbinic laws, while conceding it is only asmachta, a hint or hook on which to hang the law. Peri Megadim finds some asmachtaot stronger than others. He reads Ra’ah, R. Aharon Ha-Levi, a contemporary of Rashba, to say a law with an asmachta hashuvah, an important or significant link, has some aspects of the Biblical. In such cases, we would not say safek le-kula, we are lenient in cases of doubt, nor would we rule out a gezerah le-gezerah, another protective law for this original one, because it is enough like a Biblical law to generate protective rabbinic laws.

(A reminder: his idea here depends on his consistent acceptance of Rambam’s view any rabbinic rule has the Biblical support of lo tasur, do not stray from what the rabbis say.)

For two of his many examples, the Gemara supplies a verse for the obligation to give certain honors to kohanim, where Peri Megadim is sure the idea is rabbinic; the Gemara requires being strict about a doubtful case of muktzeh despite its being rabbinic. Without repeating our original discussion of his examples and counterexamples, I do think it is worth repeating the pressing need his idea raises: to know which of the verses the Gemara cites are for which purposes, whether they are full-fledged sources, showing us a Biblical law, significant hints to an idea, an asmachta hashuvah, or more ordinary derivations, closer to homiletical, leaving the rule plainly rabbinic.

Makkat Mardut

A significant marker of rabbinic law was its being punishable with lashes of a different kind than the Biblical ones. Peri Hadash pointed out Hazal had two ways to enforce their rules, these lashes or nidui/herem, shunning. Lashes for an already-completed sin would be a fixed number (39 or 13 were the two views), he thought, where those seeking to bring cessation of an ongoing sin (or to yield observance) had no upper limit. Peri Megadim thinks the former type were also administered less harshly than Biblical lashes.

Ran provided the operative distinction for when to give which type of punishment. Nidui was for rules the rabbis completely innovated, lashes for extensions/protections of Torah law. His idea reminds us again of the value/need to know the sources of ideas, because a person who violates a rabbinic prohibition becomes invalid as a witness at a rabbinic level, where a Biblical violation invalidates him at a Biblical level.

Rabbinic lashes do not require witnesses to have warned the sinner before he committed the violation, and can be administered for some Biblical sins, such as where the Torah did not institute lashes. For rabbinic rules without action (where the Biblical version has no lashes of its own), Peri Megadim was less sure, and certainly knew of some rabbinic sins for which no lashes were ever instituted.

And sometimes, the rabbis instituted or administered lashes without a violation, such as a woman who took a vow and then violated it without knowing her husband had nullified it. She technically had not sinned and yet would be disciplined for it, an idea Peri Megadim suggests should also apply to a Jew who thinks he is sinning (eating fat he and others assumed to be prohibited) and finds out he did not (it was shuman, permitted fat).

The Benefit of a Mitzvah

The Gemara assumes mitzvot lav lehanot nitenu, performance of a mitzvah is not considered a benefit, so that if someone blows shofar on my behalf, he has not benefited me financially (an idea mostly important for situations where I am not permitted to gain benefit from that other person, usually because one of us made a vow to that effect). Ba’al Ha-Ma’or thought the idea included only Biblical rules, where Ran assumed it extended to rabbinic ones as well. For Ran, I could have someone else perform a rabbinic mitzvah for me without worrying about the vow between us.

Mishneh Le-Melech thought Rambam allowed this idea only bedi’avad, when it has already been done or there are no other choices, such as when the only Jew available to blow shofar is not allowed to give benefit to a particular Jew. Shulhan Aruch ratified the idea, the other Jew may only benefit if the shofar blower is blowing anyway.

The idea might also allow using items prohibited in benefit for mitzvot, such as orlah oil, produce of the first three years of an olive tree, for Hanukkah candles, as long as it is a bedi’avad situation (for Rambam; Tosafot allowed it even le-chathillah).

The Strength and Intent of Rabbinic Law

Sometimes, the Gemara says Hazal enforced their rules at a level similar to, or occasionally greater than, Torah law. Peri Megadim thinks the idea worked only for original rabbinic legislation, laws they made with some purpose in mind. Hazal also occasionally said lo pelug, this case does not really fall under the rubric of our concern, but to leave it out of the rule would blur the issue. For those lo pelug rules, Peri Megadim says Hazal would never hold the line more than for a Torah law.

Magen Avraham said rabbinic laws do not require intent, although berachot seem to be an exception, and Peri Megadim notes women are generally exempt from rabbinic rules with a time component, as they are with Biblical ones.

Bal Tosif

Peri Megadim spent more than a little time on the Biblical prohibition of bal tosif, not to add to the Torah, since—as Rambam pointed out—any rabbinic legislation seems to violate the rule. Rambam thought Hazal articulating the distinctions between their legislation and Biblical avoided the problem, an ironic idea given how easily the line blurs, as we have seen.

Ra’avad raised Hazal’s suggesting asmachta’ot, verses to support their ideas, as a counter-proof, since it obviously makes less clear they are legislating rather than expounding. Kessef Mishneh says Hazal say when they are doing that [although I wonder, since it’s not always clear in the Gemara what is an asmachta and what is not]. Kessef Mishneh also said the leniencies in rabbinic law, such as that cases of doubt are treated leniently, were another way for Hazal to show they were not committing bal tosif.

Ra’avad instead thought bal tosif only applied within an existing Biblical law, such as adding another section of the Torah to one’s tefillin. Based on an idea of R. Eliyahu Mizrachi in his supercommentary to Rashi on the Torah, and Tosafot’s permitting repeat performances of mitzvot without any concern about bal tosifPeri Megadim distinguished between adding new or strange materials to a mitzvah (a fourth, different, verse to the kohen’s blessing) and adding more of the original material, which is like doing the mitzvah again.

This latter idea also ties in with the question of intent, a person has to mean to include the extra item or performance within the mitzvah for us to worry about bal tosif.

Rashba escaped bal tosif for rabbinic law by claiming the Torah gave a blanket exemption to the Sanhedrin and the central courts, the right to legislate for the Jewish people as necessary without worrying it seems like adding to Torah law.

Getting back to Rambam, he says the prohibition only comes when the rabbis or others add to Torah law, not (for example) halachah le-Moshe mi-Sinai, laws handed down orally, even going back to Sinai. Although it sounds like he also frees adding to rabbinic law of bal tosif issues, Peri Megadim is sure that cannot be, because Rambam held all rabbinic law comes under the penumbra of lo tasur, and is therefore Biblical. Because, remember, only the Biblical roots of all rabbinic law allow us to make blessings with the word ve-tzivanu, Gd commanded us, as we act rabbinically.

Rambam’s view of bal tosif also explains how people can voluntarily perform mitzvot when exempt; since they do not claim to be obligated, they are not adding to Torah law.

Prescribed Customs and Politeness

There are two more categories for Peri Megadim, custom and derech eretz. By custom, he means practices set up by some authority (prophets, perhaps, or rabbis), such as waving the aravot on Sukkot (not, and I think it bears repeating, whatever people just start doing on their own; for him, that’s not even a custom).

Although Rambam and Rashi seem to agree on a general rule not to recite blessings before fulfilling a custom, there are exceptions. Rambam was consistent in seeing no blessing before the truncated Hallel on Rosh Hodesh, where Ittur thought it would have a blessing when performed communally, and Rabbenu Tam and Rosh thought such customs could be blessed. For these latter two, the custom of hoshanot did not get a blessing only because it was tiltul, carrying an item, not a significant enough action to produce a blessing.

Rambam, Rashi, and Ittur have to explain why we recite blessings when fulfilling the custom of observing the second day of holidays outside of Israel. Fortunately for them, the Gemara said it was to prevent people from treating the second day casually. Peri Megadim is not happy with that alone, argues the blessings of al (al achilat matzah, on eating matzah, for example) are easier to say, because they are praise for the institution of the mitzvah in addition to being preparatory for a mitzvah performance. Ritva also suggested ordained customs achieve some level of obligation, making ve-tzivanu appropriate even for them. Peri Megadim wonders, in line with all this, whether courts might give rabbinic lashes to enforce observance of these kinds of laws as well.

Last, we saw the idea of recommended ways of living, such as guests obeying a host, making blessings on spices and/or a lit fire at the end of Shabbat, in both cases avoiding the word ve-tzivanu, as Gd commanded us.

The first part of the Petihah Kollelet, then, lays out for us the halachic system, what obligates Jews, from the most serious Biblical prohibitions down to the good practices the rabbis told us to follow. Figuring out what parts of our Judaism go where were an important part of observance, Peri Megadim was telling us, with both practical and conceptual ramifications all along the way.

About Gidon Rothstein

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