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by R. Gidon Rothstein

Parshat Shofetim hosts 17;11, lo tasur, the verse Rambam famously held established a Biblical prohibition against any violation of rabbinic law. Ramban demurred, and Meshech Hochmah—like many before him—took a shot at explaining Rambam’s position.  

An Adjustable Torah

Meshech Hochmah says the Torah wanted a flexibility within its system of fixed rules, a mechanism for new issues or ordinances, to address what might arise during the course of history. These rules would not have the same force as Torah law, would be amenable to being changed/revoked by a later court greater than the original in wisdom and number.

[He does not go into vital details such as what laws are changeable and what not, what constitutes greater in wisdom, and more.]

The idea of people legislating brings the danger of an individual or group who is sure s/he/they know better, and act on their certainty, dividing the nation. God wants a unified Jewish people, though, hence lo tasur, to require people to follow Hazal, regardless of how convinced they/we might be of our superior insight.

[Another topic begging for clarification, where the Torah and/or Hazal insist on one unified Jewish people, and where we allow or welcome diversity.]

Not Permanently

Granted their right to legislate, Meshech Hochmah explains why the Torah left a way to then change/revoke/amend the legislation. First, the rabbis who advance the new rule might be mistaken, might have misunderstood God’s Will, and we want a later court to have the ability to clarify. Alternatively, their idea might have worked in theory, but not one people were able to fulfill in practice [the Gemara has a clear principle nullifying rabbinic rules the community cannot sustain, but it needs that or a later court to ascertain this rule was not community-sustainable].

Even where the rabbis got it right, God did not want human legislation to be irrevocable, for reasons hidden in the deepest understanding of God, he says [which I find surprising, because I can think of an easy one, not at all hidden, that God wanted the Torah itself to be different than anything Hazal advanced.]

Shlomo as an Example of Suboptimal Legislation

One of his examples suggests rabbis might make incorrect ordnances despite following all the rules. He notes Shlomo forbade Shim’i ben Gera from leaving Jerusalem (Shim’i had mistreated David during Avshalom’s rebellion; David chose not to punish him, then urged Shlomo to ensure he got what he had coming). When Shim’i eventually left, briefly, Shlomo put him to death.

Shim’i did disobey his king, a crime deserving of death, but only because Shlomo chose to command him to stay. Meshech Hochmah argues God did not necessarily want the original command, especially because sources linked this incident to the eventual destruction of the Temple. [In his view, David also seems to have evaluated the situation incorrectly.] Human beings—kings and Hazal—are not always aware of the ramifications of their legislations, and therefore God left room to adjust those rules.

The Role of Asmachta

After refuting Ramban’s arguments against Rambam’s idea (they’re too long to summarize here), he returns to the issue of rabbinic law, asking what the Gemara means when it says (often) some idea is rabbinic, and the verse quoted was “an asamachta.” To start, he reminds us of the story in Menachot 29b, where Moshe is shown all future teachers of Torah. When he saw R. Akiva, the man’s profound brilliance put him beyond Moshe’s comprehension. To allay Moshe’s distress over his inadequacy, God shows him the students asking R. Akiva about another issue and being told it was an halachah le-Moshe mi-Sinai, a law that came down orally from Sinai.

Mollified, Moshe still wonders why God did not make R. Akiva the Lawgiver, and God shuts down the conversation, says it is a matter of His inscrutable Will.

For one more piece of the puzzle, Meshech Hochmah offers Rambam’s answer to the paradox between divine foreknowledge and freewill, that God’s knowledge is external to our world and does not impact freewill [I am not going to discuss the philosophy, only his idea about asmachta]. Were people to know what God knew, their freewill would certainly suffer. Thus (his example) God knew the Jewish people would be exiled to Bavel, assimilate to the point their Bavel-born children would not be fluent in Hebrew when they returned (Ezra/ Nehemiah tells us the returning generation spoke a pidgin, Hebrew, Ashdodit, and other languages).

The Example of Non-Jews Cooking for Jews

At that point, the Rabbis would need/decide to prohibit bishul akum, food cooked by non-Jews, to dial back Jewish/non-Jewish fraternization and intermarriage. The Torah hinted the idea in Devarim 2;28, where we were told to buy food from local nations, communicating the Torah’s preference we keep our food interactions with idolaters on a purely commercial level, not with the greater intimacy of a non-Jew cooking for us. [Bishul akum applies to prepared food we buy as well, a hole in his theory he does not address.]

The Torah purposely did not legislate this prohibition, to keep intact Jews’ freewill about how to interact with idolaters; it instead gave us verses which, with hindsight, we could see were pointing us in a certain direction, hence asmachta.

I am not as comfortable with his version of the resolution of the freewill/foreknowledge paradox, but his point about asmachta resonates: Hashem included in the Torah ideas about the future we understand only after the fact. At that point, they offer guidance, but could not be de-oraita because they were not yet realities when the Torah was given.

Similar to the Torah Codes that used to be popular: we could imagine Hashem included codes in the Torah intelligible only after history occurred [I don’t believe history is predetermined, so from my perspective there would be other Codes and/or asmachata’ot whose ramifications never became clear, because history went a different way.]

Shmuel’s Fear of Shaul Justified in Our Parsha

From the Torah’s doubling of the verb som when it tells us to have a king, som tasim, you shall surely put, 17:15, Kiddushin 32b deduced an obligation to cultivate awe/fear, eimah, of the king. Meshech Hochmah wondered about the idea in the context of a Mishnah on Nazir 66a, where R. Nehorai and R. Yose disagree over the meaning of I Shemuel 1;11, no mora went on Shmuel’s head.

R. Nehorai understands the verse to say Shemuel was anazir, never took a haircut (morabeing a scissors), where R. Yose held the word mora is more easily read as fear (although, as Meiri points out, it should have been spelled with an aleph), to tell us Shemuel had no fear of people. Rebuts R. Nehorai with I Shemuel 16;2, Shemuel resists God’s command to go anoint David because Shaul would hear and kill him.

The Mishnah seems to assume fear of Shaul would justify R. Nehorai’s refusal to read the verse to mean he did not fear people. Yet our verse requires fear of a king! Meshech Hochmah answers that Shemuel refers to Shaul by name because his failures had already forfeited his regal status, he was now an ordinary human being whom Shemuel would not have feared had that been what the verse meant.

Similarly, Mishlei 21;1 asserts that kings’ hearts and choices are directed by God; had Shaul still been a king, Shemuel wouldn’t have worried about Shaul’s reaction to his anointing David, because whatever Shaul did would be God’s Will. Once he was no longer a king, there was room for fear Shaul would do what God did not want.

You’re Not a Witness If You’re Invalid

When the Torah discusses edim zomemim, witnesses proven to have lied, 19;18 says “and behold, the ed is a false ed.” The double use of the word for witness, tells us an ed zomem must be a technically valid witness. Were a court to realize the witness was a relative or a rasha, an invalid evildoer, when he testified, he could not be an ed zomem.

The idea founders on verse sixteen, where the Torah called the witness an ed hamas, the latter word usually meaning theft or robbery. A thief is not a valid witness, so the verse should not have referred to him as an ed, in Meshech Hochmah’s theory.

Onkelos translates sahid sheker, a lying witness, allowing Meshech Hochmah to say the phrase relates to what this witness will be, should his testimony be accepted. At the moment, he has not yet been invalidated and is still an ed.

The Importance of Definitions

In the three comments we saw this time, Meshech Hochmah focused on labels: what counts as rabbinic rather than Biblical, despite God paving the way for it with lo tasur as well as with asmachta hints we discover as they become relevant; on when Shaul went from being a king, with the awe/fear that involves, to being a regular person Shemuel should not have feared; and the need for a valid witness to become an ed zomem, a false one.

We often resist or dislike labels for their broad brush, but in many instances, they let us see more clearly how to handle a situation.

About Gidon Rothstein

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