by R. Gidon Rothstein
Ok, I broke this week. Normally, with a double parsha, I try to find a mitzvah from each. To my chagrin, Nitzavim/Vayelekh is very short (the two together are still in the twentieth percentile of parashiyyot by length). In addition, last year, I covered both mitzvot found in the two. Instead of a mitzvah de-oraita, then, I will investigate the halakhic application of Devarim 30;12, lo bashamayim hi, the Torah is not in heaven.
A Prohibition on Innovation or Addition
Probably, the verse is best known for its appearance in Baba Metzi’a 59b, where R. Yehoshu’a rejects a Heavenly Voice that seemed to have urged accepting a certain ruling of R. Eliezer’s. More broadly, the verse is taken to mean the halakhic process has left “heaven,” is now purely human.
Rambam codifies the idea in Yesodei HaTorah 9;1. Along with mitzvot such as bal tosif and bal tigra, not to add or take away from the Torah on our own human volition, he cites our verse to teach that a prophet may not add to the Torah, a rule so clear that if a prophet claims to have been sent to add, subtract, or share the authoritative interpretation of the Torah, s/he ipso facto shows him/herself to be a false prophet.
[Rambam balances his presentation carefully—a navi cannot in his/her prophetic role weigh in on the meaning of Torah, leading to the Talmudic idea of chakham adif mi-navi, a scholar is greater/better than a prophet, yet elsewhere makes clear prophecy is the highest human achievement.]
Shibbolei HaLeket, an halakhic compilation from Rome in the thirteenth century made the same point—many times—in a much more practical context. He was familiar with a new book called Shu”t Min HaShamayim (Responsa From Heaven), by R. Jacob of Marvege, who reported answers given him in dreams to questions he had posed. In the section on blessings, 157, Shibbolei HaLeket disputed Shu”t Min HaShamayim’s claim that we should mention God’s Name in the zimmun opening to Birkat HaMazon, the part of the Grace After Meals we say only when three Jews of the same gender eat together.
R. Ya’akov had been told that everyberakhamust include an announcement God’s rule over the world (elokeinu melekh ha-olam, our God, Master of the Universe), including this opening. Shibbolei HaLeket disagrees, partially because if we did that, we should not start the next berakha with those words, as it would be connected to the previous blessing). More relevant to our discussion, he sharply rejects the idea of taking divine counsel on halakha, because lo bashamayim hi.
A Character Requirement
Eruvin 55a records R. Yochanan’s somewhat homiletical reading of our verse, the Torah is not found among the arrogant (it is not “in Heaven,” with those who see themselves as above all others), nor among those who travel across the seas (the next part of the verse, it is not across the sea, taken here to mean those who choose to go there). Rambam adds the view of R. Meir from Avot 4;10, one should minimize one’s business involvements and study Torah.
[A pause for a memory from my graduate school days. Prof. Twersky, z”l, would point out how Rambam included seemingly philosophical statements in Mishneh Torah, generally viewed as primarily an halakhic work; it was a part of his academic legacy I have heard others note for its importance. Academics before him were sure there were two Rambams, the halakhist of the Mishneh Torah and the philosopher of the Guide for the Perplexed.
Prof. Twersky thought this was deliberate, Rambam wanted all Jews to know that these ideas, too, buttressed by statements of Chazal others might consider “just” aggadic, had all the same force of halakha, because they, too, were authoritative statements of Jewish tradition. For our example, it would mean Rambam thought we should not expect to find true Torah in those who are gasei ha-ruah, conceited.
We might discuss the definition of “conceited,” and whether Rambam meant to be absolute—Torah will not be found, meaning if we see someone who is conceited who also seems to know a lot of Torah, there must be a fatal flaw in that Torah—or was sharing a tendency, a way to bet.]
Leave Hidden Mamzerim Lie
Arukh HaShulchan Even HaEzer 2;14 understands our verse and the principle we get from it to explain an halakha in force today. Kiddushin 71a reads Malakhi 3;3 to predict a future cleansing of kohanim and Levi’im, where only those who could demonstrate their lineage would be eligible for service in the rebuilt Beit HaMikdash. (The ones who cannot will be relegated to Yisrael status, non-Temple functionary Jews.)
The end of the verse speaks of those who offer a flour offering bitzdaka, in charity, leading the Gemara to suggest the charity is Hashem’s not pursuing the lineage of the rest of the Jewish people. Even those who have managed to hide a significant problem (mamzerut, children who are the product of illicit relationships, such as where the mother was married to another man at the time, who would not be able to marry other Jews), even if they have used their money to get the problem covered over, will be allowed to stay hidden.
For ordinary Jews, lineage searches will be limited to the tribe, as Rambam wrote in Laws of Kings 12; 3. Although Rambam relegated the idea to the end of his work, in a section addressing the Messianic era, Arukh HaShulchan points out that most rabbinic authorities accept the idea already today, we do not seek out or reveal lineage problems that have already been forgotten.
[I once had this, was sitting in a room where someone casually mentioned a fact that would have indicated s/he was a mamzer/et, but no one realized. I asked a posek what I should do, and he said, stay quiet.]
How can we do this, asks Arukh HaShulchan, leave this significant error to be continued and multiplied (all the descendants of a mamzer/et incur this status), especially when Eliyahu will one day know it with his ruach ha-kodesh, divine spirit. (I think he is saying this is not a lost fact, it will be known, at least by Eliyahu, so aren’t we willfully ignoring facts?)
Doesn’t matter, says Arukh HaShulchan, because lo bashamayim hi, knowledge Eliyahu receives through prophecy cannot impact halakhic situations. (So we not miss it: although Eliyahu will only be bringing facts, not weighing in on the meaning of Torah or halakha, Arukh HaShulchan thinks we may not use those facts in halakhic contexts.)
Except he will rule on kohanim or Levi’im lineage. Arukh HaShulchan says it is because they serve in the Beit HaMikdash, so Malakhi tells us they will be purified, smelted. [He does not pursue the idea. To me, if lineage of those who serve can be determined prophetically, what other elements of Mikdash service can be governed or guided by prophetic insight? Would Arukh HaShulchan think a navi can tell us the proper ruling on halakhic debates regarding Temple service? He does not say.]
Why We Need an Alternative for Semikha
Rambam famously and controversially suggested a way the Jewish people could renew the original semikha, the ordination of students by teachers, a chain back to Moshe Rabbenu at Sinai broken early in the amoraic period. Rambam cautiously floated the idea that all the Torah scholars of Israel together could confer such semikha, although he said he needed more proof to be certain. The appointed scholar would have the power to judge all kinds of court cases, sanctify the New Moon, and certify others to join him on such courts.
Arukh HaShulchan Choshen Mishpat 3;15 suggests Rambam came to the idea because he could not see how we otherwise would ever recover the semikha, without which we can never restore the Sanhedrin or other elements of a Messianic future. We might think a prophet would do it, except lo bashamayim hi.
[I believe those who are not convinced by Rambam say Eliyahu will do it, and he will not be innovating, he will be passing on the semikha he himself received. Since he never died, his semikha never lost force and can be conferred on someone else.]
Yalkut Yosef’s Vigorous Adoption
In my search for ways to present halakhot related to lo bashamayim, to make this sort of like investigating a Biblical rule, I came across Yalkut Yosef, the multivolume work by the current Sephardic Chief Rabbi of Israel, R. Yitzchak Yosef, where he invokes the idea nineteen times. A sample:
In his laws of waking up in the morning, 6;4, after discussing when one would recite the blessing after relieving oneself if s/he forgot originally, and/or used the facilities again, R. Yitzchak Yosef notes his father, R. Ovadya, zt”l, had called R. Yosef Karo (Maran, our teacher, author of Shulchan Arukch), one in whom the spirit of God spoke, God was with him, and we follow him on all halakhic questions.
R. Yitzchak Yosef goes out of his way to clarify: Sephardim do indeed follow Shulchan Arukh in general, on almost all issues. Not because such was the decision in Heaven, since lo bashamayim hi, only because of his halakhic authority.
In Laws of Tzitzit and Tefillin 34, he quotes a Shu”t Toldot Ya’akov 2 [I could not find who that is], who had rejected a claim of our old friend Shu”t Min HaShamayim. R. Ya’akov had heard that in Heaven they had the same debate as Rashi and Rabben Tam about how to order the sections of the Torah included in the boxes of our tefillin. When asked why we so strongly prefer Rashi, then, Toldot Ya’akov said lo bashamayim. R. Yosef again dismisses ideas of Shu”t Min HaShamayim, for the same reason, in four other places I saw.
Lo bashamayim also tells R. Yosef (and his father, z”l, in Shu”t Yabi’a Omer 2) we follow the codified halakha over any kabbalistic claims (Laws of Pesukei De-Zimra 46), even those of the Arizal, in contrast to those who said if the Ari said it, he must have known it in some valid halakhic way.
It raises the stakes on rabbinic discussions, leading R. Yosef, Laws of Prayer 2, note 110, to read R. Nechunya b. HaKana to have addressed that exact worry in the prayer he recited every morning when he entered the study hall. He requested protection from stumbling regarding a matter of halakha, ve-lo yismekhu bi chaverai, a phrase I think Rashi read to mean they would enjoy his failure. R. Yosef instead thinks R. Nechunya feared they would like his erroneous idea, and would accept it, leading to bad halakha, with no possibility of God sending them a corrective message, because lo bashamayim hi.
The student of halakha has to work hard, study hard, pay attention to what others have said, and arrive at his conclusions. Because that’s all we have, because lo bashamayim hi.