THE MAGIC 613
It is a well-known fact in Judaism that there are 613 commandments that were given to us in the Torah (mitzvot d’oraita). While several gemarot (most notably Makkot 23b) search for references to this figure, it seems somewhat clear that the number was not arrived at at a given point in history, but rather that it is a received tradition from Mount Sinai that such is the number. The issue that arises in this regard is exactly what those 613 commandments are. While reading through the five books of the Torah is the seemingly obvious way to tally them, it is not as simple as it seems. While many verses clearly state a commandment (e.g. "Thou shalt not steal"), there are many others that may or may not qualify as commandments, and others that may contain more than one. This problem is fleshed out in the different list of commandments arrived at by various Rishonim. Rav Sa’adiah Gaon, theBa’al Halachot Gedolot (Behag), Rambam, Semag, Semak, and others compiled Sifrei Ha-Mitzvot, Books of the Commandments, yet while their lists are identical to a very large extent, there are many differences between them (the particular differences are not our concern here). How did each one arrive at their particular list?
Rambam, for his part, provides us with an answer. His Sefer Ha-Mitzvot begins with fourteen shorashim, principles, in which he states what qualifies or does not qualify to be included among the 613. It is the first of these principles that will be our focus here.
NO RABBINIC LAWS NEED APPLY
Rambam states that the first type of commandment that cannot be included in his list is any commandment of Rabbinic origin (mitzva d’rabbanan). While this would seem to be an obvious criteria when trying to list only those commandments that are found in the Torah, Rambam is responding to the list of the Behag, who listed, among other things, the commandment to light candles on Chanukah and to read the Megilla on Purim, two commandments that were clearly made by the Rabbis at the appropriate times in history.
Before proceeding, we must ask what prompted the Behag to include such laws that clearly do not belong in such a list? As Rambam notes, Behag relies on Devarim 17:11. The verse there, speaking of the authority of the Sanhedrin states that one "should not deviate (lo tasur) to the right or to the left" from that which he is instructed by the Sanhedrin to do. According to Behag, this verse commands us to follow the words of the Sages, and thus any commandment put forth by them falls under the rubric of this Torah injunction. As such, it is fair to include Chanukah candles and the reading of the Megilla in a list of mitzvot d’oraita.
Rambam vehemently protests against this line of reasoning. If the rationale of the Behag were to be followed to the nth degree, that would result in a situation where all Rabbinic injunctions are deemed to be mitzvot d’oraita. More than just swelling the list of mitzvot way beyond 613, such a move would collapse several important criteria that arise in the would of halacha. The notion of following a lenient path in a case of doubt, the general rule by mitzvot d’rabbanan, would be void, and we would be forced to always take the stricter option in such cases, as is the rule for mitzvot d’oraita! The concept of following a Torah-ordained law over a Rabbinic one when the two come head-to-head would similarly be rendered meaningless. Several other examples may be given for the effects of this notion, but these two are enough to give an idea of how far-reaching this would be.
So, all is fine and well for Rambam. He blasts the Behag and leaves Chanukah and Purim off of his list. But what about the Behag himself? How is he to explain his position?Ramban, in his commentary on Rambam, gives several lengthy responses to the attacks of Rambam. While they are interesting, the are particular to the specific claims of Rambam. Our goal now is to understand what exactly a mitzva d’rabbanan is and why it may or may not be viewed in a d’oraita light.
LO TASUR - WHAT DOES IT MEAN?
We mentioned above the verse from Devarim 17:11. What exactly does it mean when it commands us not to deviate from that which the Sanhedrin/Sages tell us?Rashi cites the Sifrei, which states that we must follow them even if it appears to us that what they tell us is right is really left and what they tell us is left is really right. In other words, the Sanhedrin have absolute power over interpreting the law, and even if we think that they are wrong, it is our obligation to support their position and follow their ruling. The Yerushalmi in Horayot debates this point. It claims that we should follow them if they tell us that right is right and that left is left. However, it would seem, if we know that they are wrong we are under no obligation to blindly obey them. The Yerushalmi limits somewhat the power of the Sanhedrin, giving them a large degree of power, but not absolute and total power.
Beyond that issue, we have to ask what the force of this verse is? It appears that there are three potential answers. The first is that the verse has the power that Rambam fears - it is a positive commandment to listen to the words of the Sages, and even further, this commandment has the power to imbue anything that they say with the status of being a Torah-ordained law. The other extreme is to claim that this verse has very little significance, i.e. that it is not an actual commandment, but rather what is known as an "asmachta," a verse used after the fact to lend textual support to a law or concept that is known from elsewhere. The third option will be the main focus of our investigation. Perhaps this verse does have the force of a mitzva d’oraita, but not to the full extent that we envisioned previously. However, if this is the case, then what exactly is the power of this verse? How far-reaching is this commandment?
THE POWER OF THE RABBIS
One of the first notions that there is a d’oraita aspect to the laws of the Rabbis comes from the gemara in Shavuot 39a. There, the gemara asks how we know that all commandments that were created after Sinai are included in the "oath" taken by the Jews at Sinai to uphold the Torah. The gemara responds by citing a verse from Esther "The Jews kept and accepted (the laws of Purim)." The gemara learns from this verse that they "kept that which they had already accepted," meaning that by keeping the laws of Purim at the time of Esther, the Jews were in fact keeping something that they had already accepted upon themselves at Sinai to do. Obviously, there is no explicit command in the Torah to read the Megilla, and thus this may be viewed as a veiled reference to the injunction of lo tasur.
More significant is the gemara on Horayot 2b. The mishna there discusses the case when Sanhedrin err in a ruling and a majority of the people follow them and thus sin. When the error is later discovered, assuming all conditions are met it is the responsibility of the Sanhedrin, and not the individuals, to bring the sin-offering. However, if a person is deemed to be a "student fit to teach," he may not claim protection along with the rest of the nation and thus must bring his own sin-offering. The gemara tries to establish exactly what type of person fits into this category. If he is someone such as Shimon Ben-Azzai or Shimon Ben-Zoma, i.e. a person extremely well-versed in all of the Torah, then he would not bring a sin-offering as his action would be judged to be intentional (for which one gets the primary punishment). After some discussion, the gemara concludes that the sin-offering is brought because this person erred with regard to the mitzva to listen to the Sages. In other words, he felt that he was obligated to follow the Sages even if he knew them to be wrong, when in fact their power is not so total and he actually was obligated to ignore their ruling and not follow it (interestingly, while this applies for his own actions, were he to teach others to act counter to the Sanhedrin he would be tried as a Rebellious Elder and potentially be subject to the death penalty). There are two main points to be made here. First, we must note that what he is punished for is not for the content of the ruling of the Sanhedrin. He does not bring a sacrifice because he did something against what they had told him to do. If that were the case, it would imply that WHAT they say can gain the status of a d’oraita law to the extent that one would have to bring a sacrifice for violating their words. Instead, he is punished for the fact that he erred with regard to the more general concept of adhering to the words of the Sages. Further, we note that this concept is itself considered to be Torah-ordained, as the punishment for his error is a sin-offering, something brought only with regard to Torah laws.
Our next test-case is the gemara is Shabbat 23a. After discussing many of the laws related to Chanukah, the gemara finally reaches the question as to what blessing is made on the lighting of the candles. The answer given is that the blessing is "asher kideshanu b’mitzvotav v’tzivanu l’hadlik ner shel Chanukah" - that Hashem sanctified us with his commandments and commanded us to light Chanukah candles. The gemara then asks the obvious - where is this commandment to be found? Two suggestions are offered. The first is our verse of lo tasur; the second is the verse in Devarim 32 of "she’al avicha ve-yagedcha" - ask your father and he will tell you. The reliance on this second verse is somewhat strange. Lo tasur at least appears to have to potential to serve as a commandment of some sort, however this second option comes from the song of Ha’azinu - not a usual source for laws! Why would someone choose the latter option over the former?Ritva offers an answer for this. He claims that the opinion that favors the latter verse does so because he does not believe that lo tasur can work in all cases. Only when a Rabbinic law comes as a function of a Torah law (such as laws established as "protective fences" around pre-existing Torah laws) can we rely on lo tasur. However, when the Sages establish a law from scratch, as they do by Chanukah, that power is not one derived from lo tasur. Rather, we rely on the verse of "she’al avicha" as advice that we should follow the Sages. Thus, the "commanding" that we refer to in the blessing may not be an actual commandment but rather a verse in the Torah (which in and of itself is a significant source) advising us to follow the laws set down by the Sages. Thus we see that at least according to one view, lo tasur is somewhat limited in its scope. While it does grant some power to the Sages, it does so only when they work with pre-existing laws. It does not, however, grant them the full power of creativity.
Finally, we come to the gemara is Brachot 19b. In discussing the laws of kavod ha-beriot (lit. "honor for living creatures") the gemara states that if a person discovers that they are wearing sha'atnez (forbidden admixtures of wool and linen), they must remove the garment at once, even if they are in public. Why is this so? Since sha'atnez is a mitzva d’oraita it overrides the notion of kavod ha-beriot, since "there is no wisdom, no understanding, and no advice in the face of Hashem," i.e. Hashem’s laws remain firm in the face of other principles that we often rely on to guide our lives. However, later on the same page the gemara notes that the concept of kavod ha-beriot is extremely important, as evidenced by the fact that it pushes aside a Torah-bound commandment. Which commandment is that? None other than lo tasur, and the gemara goes on to note that all Rabbinic laws rely on lo tasur to lend a degree of credence to them. We have a major difficulty to deal with here: if lo tasur really is, as the gemara states, a mitzva d’oraita, then why do we not say, as we did earlier, that there is no wisdom in the face of Hashem and thus that it is not overridden by kavod ha-beriot? Ritva answers that lo tasur is merely an asmachta, but that it is not actually a commandment to follow the Sages. As such, the notion of following the Sages may be pitted on a more equal footing against the notion of kavod ha-beriot and it is thus possible for kavod ha-beriot to prevail. Rashi also notes that lo tasur is not a full-forced Torah law. Rather, it allows us to refer to mitzvot d’rabbanan as positive or negative commandments, but it does not actually confer such status on them to the point where we may say that they are tantamount to Torah-ordained laws. This seems to restrict our conception of lo tasur even further, reducing its power across the board, and not just with regard to new commandments created by the Sages.
THE VIEW OF RAMBAM
Before proceeding, let us sum up where we stand. First, the fears raised by Rambam are largely unfounded. Nowhere have we seen it said that mitzvot d’rabbanan actually gain the status of their Torah-ordained counterparts. The bigger question seems to lie with regard to the status of the actual commandment to listen to the Sages. While Horayot indicates that it is a Torah law, both Shabbat and Brachot offer clues to the extent that while it has some basis or support in the Torah, it does not have the full status of a Torah law.
What about Rambam himself? Forgetting what he said in his Principles, which can be viewed in the context of an attack on the Behag, what is his take on lo tasur? The answer comes from his Hilchot Mamrim 1:2. There, in laying out the powers of the Sanhedrin, Rambam states that anyone who does not follow their decrees, however they are derived, violates the injunction of lo tasur. Indeed, Rambam lists following the words of the Sages as one of the 613 commandments (interestingly, he lists it as a positive commandment based on the first part of Devarim 17:11 and not a negative commandment based on lo tasur). With regard to this, the Mishne LaMelech cites the Maharam Trani who offers an overall view of this notion. He claims that the Torah only commanded us to follow the words of the Sages. However, the Sages were given the right not only to make laws, but also to set rules regarding their laws. Thus, the Sages ordained that in any case of doubt regarding a Rabbinic law one should follow the more lenient approach and that a Torah-ordained law can prevail over a Rabbinic one.
I would like to refine this point a little bit. We take it for granted that there is such a concept that is known as a Rabbinic law. However, where did that concept come from? Hashem gave us the Torah with its laws, and seemingly it would be admitting a deficiency in that system to claim that there exists another body that can create laws and add them on to the divine system. Thus, Hashem stated "lo tasur," and by doing so He effectively created the entire notion of Rabbinic laws. The concept of mitzvot d’rabbanan is thus built into the Torah’s system, but it is left unclear as to what status those laws will have. That is a decision that was left up to the earliest Sages to decide, and they set down the rules for how Torah-ordained laws and laws later set down by the Rabbis would interact with each other. While it is a matter of great debate whether or not the Behag was justified in counting Chanukah candles and the reading of the Megilla among his list of commandments, there is no doubt that all mitzvot d’rabbanan have a certain d’oraita element about them. Rabbinic laws do not exist beyond the pale of the divine system, but rather are an intrinsic part of it and help to keep it dynamic and progressive.
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