The Intricacy of Halachah

by R. Gidon Rothstein

The End of This Time Through Peri Megadim’s Petihah Kollelet

The wells of Peri Megadim’s mind are not easily dried, and as we take our last stab at some of his additional comments in the fifth part, I am acutely aware of how much more we could have done with this material, the reason I always leave open the possibility I will return to this work in the future (although, to be honest, I’d probably work my way through some of his other books first).

For now, let’s see what more he will say here before we move on to the next project.

The Size of an Item Slated for Burning

He has earlier discussed ketutei mehtat shiurei, the idea an item halachah requires to be burned, is considered as if it has no substance anymore, and therefore cannot be used for any endeavor that needs a minimum size [such as a shofar on Rosh HaShanah, because the shofar has to be bigger than an average sized hand].

Except halachah does seem to accept a lehi—the post placed along a wall as a symbolic third or fourth wall enclosing a space for Shabbat or sukkah reasons– made from an Asherah tree. A tree used for idolatry is a classic example of an item we are supposed to burn, so we should have said the lehi has no substance to it, halachically. In contrast, a korah—a beam placed across the opening to an area, an alternative to a lehi as a way to close off a space– cannot come from such a tree, seemingly because it lacks a shiur, by virtue of its future as ashes.

To explain, Tosafot Eruvin 80b argued a lehi only needs a little shi’ur (a korah must be a tefah by a tefah, and substantial enough to hold some weight, where a lehi only needs to be a standing pole, with some width). By that standard, we should have been able to use a lulav off an Asherah tree for all of Sukkot after the first day, because the obligation is rabbinic, with a similarly minimal size issue. Tosafot says mitzvot have more stringent rules (I think because using such an item to fulfill a mitzvah is a more significant matter than for it to serve as a symbolic wall).

Magen Avraham argues that fulfilling a mitzvah should have been easier in one way, because we always say mitzvot lav lehanot nitenu, mitzvot do not have a benefit aspect. Fulfilling the rabbinic mitzvah of lulav is not taking benefit from an Asherah, where using it as a lehi—not itself a mitzvah—seems to be gaining a benefit. Magen Avraham resolves the problem by saying mitzvot lav lehanot applies to all ideas related to mitzvot, such as a lehi, whose only purpose is to allow us to see a space as enclosed.

Peri Megadim floats the idea a lulav actually has more of a specific shiur (not just height and minimal width) because it has to be able to support leaves, meaning there is a real width requirement.

The Assumption of Pregnancy From a Husband

Given the reality of infidelity, the Gemara wondered how we take for granted the paternity of babies. It posited a hazakah we have seen before, most of a married woman’s acts of marital relations happen with her husband. Taken fully literally, the idea leaves holes where we might have to suspect a child is not his/her father’s. First, were a man to consummate his marriage once and leave [for war, if this were a movie], any subsequent pregnancy of hers would not have this necessary underpinning of a majority of acts being his [had she been unfaithful, it would be one to one for the husband and at least one for the adulterer].

Maharshal gave another example when Pesahim 87 describes Gd as sending Hoshe’a to marry an unfaithful woman, to give the prophet some sense of Gd’s continuing the connection to the Jewish people despite their unfaithfulness. The Gemara has Gd say, what will I do with this old man, I’ll have him marry and produce children of infidelity. Rashi thinks the children were not going to be definitely from an affair, only possibly (and Hoshe’a would love them, as Gd loves the faithless Jews). The logic does not work, however, if we always assume a woman has the majority of her sexual encounters with her husband; Hoshe’a would be correct to assume the children are his. Maharshal suggested an old man will not sleep with his wife often enough to create that majority.

Leaving us to wonder if the Gemara’s idea meant a literal majority, or was an assumption about the likelihood of a married man’s paternity.

Hazal’s Legislative Powers

In an earlier section [III;1, R. Eisenberger tells me], Peri Megadim argued Hazal had the power to legislate to ensure fulfillment of a mitzvah. Here, he suggests it might be a matter of dispute between Rambam and Tosafot, based on their views of whether bal yera’eh, the prohibition of owning leaven on Pesah, is nitak le-aseh, is linked to an obligation (to get rid of the hametz).

They agree that in the fifth hour of the fourteenth of Nisan, the rabbinic rule to no longer benefit from hametz does not include an obligation to burn it. Tosafot Pesahim 29b thought of the prohibition of owning hametz as connected (and therefore not fully violated until the person has no way to get rid of the hametz). A ramification of that, however, is that Hazal had no need to institute an extra precaution, because this was not going to be violated right then. For Rambam, who reads bal yera’eh as an ordinary prohibition, Hazal’s not instituting burning early suggests they did not make protective rules for obligations.

Four Areas to Address

Rambam introduced his enumeration of the 613 commandments, Sefer Ha-Mitzvot, with shorashim, rules for how to decide what counts as a mitzvah. In the ninth shoresh, he pointed out Gd’s commandments all addressed one of four areas: thought, action, character, or speech. Peri Megadim suggests each of those works with rabbinic rules as well; for mahshavah, I think his example is that Jews sometimes take on obligations.

They are not rabbinic, because Hazal never legislated them, they are a matter of Jews’ deciding these should be considered prohibited. His example is the fat around the gid ha-nasheh, the sciatic nerve. The Torah prohibited only the nerve itself, and while there was some debate about whether the nerve has taste (in which case the fat should be prohibited for its having absorbed that taste), we assume it does not. If so, the rule against this fat is a matter of acceptance by the Jewish people.

Actions are obvious, like lighting Hanukkah candles, and speech is, too, reading the Megillah or prayer. For thought, he points to rabbinic rules (or dicta) about avoiding inappropriate thoughts, and for character, he tells us to consult Rambam’s Laws of Character, and also expresses an intention (not fulfilled here) to list many aspects of character the rabbis promoted

[Allow me to pause for a moment of self-promotion; I have in manuscript a book on halichah bi-drachav, the mitzvah to walk in Gd’s ways, that I’m not sure what to do with. It’s available by email to whoever wants.]

Concluding Thoughts and a Teaser

And that’s how he ends it. It encapsulates for me the wonders and frustrations of this Petihah. It is the work of an extraordinary mind, plumbing the depths, finding the nooks of halachah that are a) essential to our understanding of the system and b) had not been well investigated. He also has complete mastery of his own writings, which all kind of overlap, the reason he so frequently sends us to other of his works.

At the same time, the Petihah shows some of his weaknesses. First, he assumed we all know the halachic literature as well as he did, so his references are hard to track [the reason R. Eisenberger’s volume is so helpful]. Second, and more crucially, Peri Megadim either did not or could not organize (as this Part Five shows) his presentation to make his points even clearer.

Each time I notice this, though, I think I would gladly take his strengths even if they come with those weaknesses. More, I find his ideas particularly enriching in helping us glimpse the structure of halachah, whom it affects and how it works. Maybe next time I study it, I’ll understand it better.

Next week in this venue, we’re going to start a project I see taking us quite some time: trying to figure out what the Torah itself commanded. I want to introduce it in time to start with some mitzvot for Parshat Bo, so I’ll take the next two weeks exploring what it means for the Torah to command something, and why it matters.