Not to Add to the Torah

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by R. Gidon Rothstein

Parshat Re’eh

Apparent simplicity lulls us to undue complacency. Devarim 13; 1 says not to add to the Torah, a phrase rishonim took varyingly. Rambam’s Prohibition 313 renders it most simply, not to add to the Torah, neither the Written nor the received tradition of what it means. But not to add what? Therein lies a tale.

Add Within or From Without

In his commentary to Devarim 4;2, Ramban notes Rashi’s version, taken from Sifrei to our parsha, the prohibition refers to adding a section to tefillin, putting a fifth species in the lulav, extra strings to the tzitzit, and so on. Sifrei also had the example of a kohen who recites another verse of blessing beyond the three the Torah wrote.

Hashem gave those three verses, so saying any other—even of Scripture, so the kohen is not claiming any right to formulate a blessing—violates this rule, too. Minchat Chinukh points out Rambam placed this example in the fourth chapter Laws of Prayer, and in the second chapter of Laws of What Invalidates Sacrifices recognized the problem of sprinkling the blood of sacrifices more times than the Torah said, showing he accepted this aspect of bal tosif, too.

All fine, says Ramban, except the prohibition also involves innovation, such as I Melakhim 12;33, where Yerov’am made up a new holiday. Megilla 14a tells us Mordechai and Ester struggled with their right to establish Purim, because of worries over bal tosif, and only allowed themselves to do it when they found Scriptural basis.

At the same time, Rambam reminds us the Torah itself gave Chazal the power to institute protective measures, as long as we identify their rabbinic origin. Minchat Chinukh says rabbinic obligations such as washing one’s hands before eating and the mitzvot of Chanukah are included here, too.

A Digression on Chaya Meat in Milk

For an example Sefer HaChinukh 454 cites from Rambam’s Hilkhot Mamrim 2;9, the prohibition to cook fowl in milk (chicken, duck, etc.) is rabbinic. Were someone to claim it was Biblical, that person would be adding to the Torah, knowingly or not. Sefer HaChinukh throws in that should the person say the problem with milk used to cook chaya, nondomesticated animals, is only rabbinic, s/he would have violated bal tigra, taking away from the Torah. Minchat Chinukh notes this is a fraught example, since Rambam in Laws of Prohibited Foods 9;20 in fact says this, besar chaya be-chalav, meat of nondomesticated animals cooked in milk, is a rabbinic issue, not Biblical. Sefer HaChinukh apparently wrote here based on Hilkhot Mamrim 2;9, where Rambam said it was Biblical.

[I don’t usually deal with such issues here; in this instance, years ago I heard mori ve-rabi R. Dr. Haym Soloveitchik suggest Rambam had originally thought this prohibition was Biblical, later came to understand it was rabbinic. That’s no so revolutionary, he many times changed his mind between the time he wrote Sefer Ha-Mitzvot to when he wrote Mishneh Torah. R. Dr. Soloveitchik thought perhaps Rambam remembered to change it in the central discussion, Ma’akhalot Asurot, but did not (or forgot to) go back and change Mamrim. ]

Now we see Minchat Chinukh says much the same! (I do not remember Dr. Soloveitchik referencing Minchat Chinukh but no one went broke betting against my memory.) Minchat Chinukh says it is a matter of not bothering with the details where it is not the main discussion, and points out Sefer HaChinukh did it, too, because in Mitzvah 113 he says clearly the prohibition on chaya meat in milk is rabbinic, where here, he happily uses it as an example of how bal tosif or tigra, taking away, works.

Adding Only Within

Sefer HaChinukh thought the consensus view, though, limited bal tosif to where one adds to existing mitzvot. This could be wearing two pairs of valid tefillin, including a fifth section of the Torah in those tefillin, but it also can involve deciding to perform a mitzvah, as a mitzvah, when not the correct time—sitting in a sukkah, to fulfill the mitzvah, after the holiday is over.  For these kinds of violations, the person would  need to be aware it was no longer the time and intend it as a mitzva anyway; otherwise, sitting in the sukkah when not the holiday is meaningless, mitzvah-wise.

As opposed to shaking a lulav extra times during the day, blowing the shofar beyond what was required, and so on, all of which are fine.

Minchat Chinukh made the opposite explicit, Ra’avad rejected the possibility of bal tosif for a prohibition, thought even if rabbis innovated and claimed it was Torah law, they would not violate bal tosif. Once the Torah allowed them to legislate protectively, based on u-shmartem et mishmarti, there is no way to overstep so much so as to violate the Torah, this view held. Later, Minchat Chinukh explains their view further, that when Chazal add something clearly not in the Torah, these views say there is no bal tosif since it is so obviously not part of the verse.

(He calls it zil karei bei rav, schoolchildren know this is not true. I accept his main point, that an attempt to add completely new material to the Torah will fail, but his specific example seems problematic, given the elasticity offered by Rabbinic inference. After all, Rambam did think chaya meat was Biblical at some point, it seems, so it wasn’t blindingly obvious that it was not. If so, someone who held fast to that view seems also to have fallen prey to what Minchat Chinukh declared impossible.)

Sefer HaChinukh stresses how hard his teachers had worked to cull these conclusions from the Talmudic evidence—achar yegi’ah rabbah, he writes, after great toil.

The Reason

I could imagine many ways to articulate the reason for such a mitzvah, all circling the same idea. Sefer HaChinukh focuses on the implied imperfection of what came before—if we need to add Biblical elements to the Biblical corpus, it must have been lacking.  He obviously can’t mean that fully, because he is well aware of what we have said here a few times already, Chazal were empowered and commanded to institute new ordinances as needed.

It seems to me he must mean that adding to the Torah, as Torah law, says the Torah was imperfect in what it strove to do. The Torah didn’t try to legislate in many areas, it left room for later rabbis to see a need and address it. There is no implied insult in adding there.

But where the Torah did make a rule, if someone decides to supplement, s/he is saying the Torah misunderstood its own goals, needed to have this as part of Torah as well. And that says God’s Torah was imperfect.

People can chew over the topic, and its many subsections, productively and endlessly; we’ll stop here, with the bare minimum.

About Gidon Rothstein

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