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Nisan 5762

Adding, Uprooting, and Rabbinical Authority


Summarized by students

Dedicated to the speedy recovery of
Alegra bat Rachel

1. Introduction: Rabbinical Ordinances - Says Who?
2. Authority or Correctness...
3. God's Desire or "Tampering from Without"?

   a. Rambam: Perfectly Complete
   b. Ravad: Not a violation of "You shall not add..."
   c. Haikkarim: The Torah is subject to change
   d. Rabbi Yehudah HaLevi: "The Masses shall not add..."

4. Temporary "Uprooting"
5. "It is time to act on God's behalf, suspend your Torah"


Introduction: Rabbinical Ordinances - Says Who?
Some rabbinical ordinances were enacted not for the purpose of protecting the laws of the Torah, but because the Rabbis saw an independent need to enact them; others, though, were enacted as preventative measures , safeguards to prevent people from violating actual commandments of the Torah. At times the Rabbis even saw fit to uproot a Torah law in order to erect one of these safeguards. Let us begin, at any rate, by examining the nature of independent rabbinical ordinances.
The rule regarding the separation of priestly tithes from ritually impure produce may be seen as an example of a rabbinical ordinance enacted not for the purpose of protecting the laws of the Torah, but because the Rabbis saw an independent need for its enactment. Though Torah law considers tithing in this manner valid and deems the remaining produce permissible for consumption, the Rabbis decreed that one who performs such an act knowingly be obligated to separate a second time, this time from pure produce. This, then, is not a safeguard to prevent the violation of an actual Torah commandment. Rather, it is a rabbinical ordinance that was established in order to protect the livelihood of the priests; the Rabbis saw an independent need for this enactment. We find many similar rabbinical ordinances in Judaism.
Yet, all of this is deserving of a closer look. On the face of things, it would appear that the Rabbis do not possess the power to enact such ordinances. What gives them the right to add laws to those which the Torah commanded us? Let us, then, turn our attention to this question.

Authority or Correctness...

There exists a discrepancy between two acclaimed authorities - Rabbi Moses ben Maimon, "Rambam" and Rabbi Moses ben Nachman, "Ramban" - concerning the commandment, "You shall not turn aside from the law that they [the Rabbis] declare to you" (Deuteronomy 17:11). According to Rambam, rabbinical ordinances are included in this commandment. He writes, "All who believe in the Torah of Moses are obligated to abide by the [decisions of the] High Court and to rely upon them." In other words, the obligation to abide by the words of the Sages stems from the authority that the Torah itself granted them. Ramban , on the other hand, holds that this commandment does not include rabbinical ordinances. From where, then, according to Ramban, do the Rabbis derive the authority to enact ordinances at all? In addition, what obligates us to abide by their decisions?
It appears that according to Ramban we follow the Rabbis not because of the strength of the authority that the Torah grants them, but by virtue of the correctness of their words. Their strength stems from the fact that their words are true and their advice is good. By virtue of the quality of their advice we must follow them, for one who refuses to accept correct and true council is considered foolish.

God's Desire or "Tampering from Without"?
We might add that according to Ramban the reasoning, conclusions, logic, and correctness of the words of the Rabbis all stem from the Torah itself. When, as in the case brought above, the Rabbis sense a need to protect the rights of the priests by seeing to it that they receive ritually pure tithes, this is because they understand the importance of the priestly status in light of the purpose of the tithes. Therefore, the conclusion reached by the Rabbis is the correct conclusion, and it is fitting to rely upon and cling to it, for it constitutes the truest expression of God's desire in this particular situation. Similarly, when the Rabbis forbid the use of the Shofar on the Sabbath because using it might result in an accidental violation of the Day of Rest, this is simply the result of their penetrating insight into these conflicting values in the Torah; it is an expression of their conclusion that there is greater damage in a number of people accidentally violating the Sabbath than there is value in the fulfillment of the commandment to blow the Shofar.
For Rambam, though, this sort of enactment is not the revelation of God's desire. Rather, it is seen as a kind of tampering from without , a "breaking and entering" into the private domain of the Torah itself. Were it not for the commandment, "You shall not turn aside from the law that they declare to you," such an act would not be permissible.

Rambam: Torah Perfectly Complete
According to Rambam, the Torah itself is perfectly complete and there is no need to add anything whatsoever to it; any addition to the Torah must be viewed as a sort of violation of its completeness. Rambam himself wrote in his famous Thirteen Principles of Faith that regarding the Torah, "nothing is to be added to it nor taken away from it." Therefore, were it not for the explicit permission of the Torah itself, any sort of rabbinical addition or abrogation would be unheard of. It is for this reason that Rambam emphasizes that when enacting any sort of decree, the Rabbis must be careful to make it absolutely clear that it is rabbinical; the establishment of rabbinical decrees or ordinances without making it absolutely clear to all that they are rabbinical constitutes a violation of the prohibition against adding any commandment to the Torah, as it is written, "You shall not add to it nor diminish from it" (Deuteronomy 13:1). "If," writes Rambam, "one forbids [the consumption of] poultry on the grounds that it similar to the meat of goat and is therefore forbidden by the Torah, he is [guilty of] adding [onto the Torah]. Yet, if one were to say that while poultry is permissible in the eyes of the Torah, we are forbidding it and informing the masses that this [prohibition] is a rabbinical enactment...[he is not guilty of adding]" (Hilchot Mamrim 2:9). We see that, according to Rambam, it is necessary to protect very carefully the distinction between rabbinical ordinances and actual Torah law. Rabbinical law is, by definition, a kind of assault upon the Torah and not - as Ramban maintained - a completion or perfection of its true intentions and desires.

Ravad: Not a violation of "You shall not add..."
In contradistinction to Rambam, Rabbi Avraham ben David, "Ravad," maintains that rabbinical enactment is not to be considered a violation of the prohibition forbidding the addition of commandments to the Torah: "Any prohibition enacted by the Rabbis in order to safeguard and protect the Torah is not a violation of the commandment 'You shall not add [to it nor diminish from it]' even if it is enacted permanently, made like a Torah law, and based upon a Scriptural passage (Such is the case in a number of places: Rabbinical laws are established and based upon Scriptural passages for support). Temporary [rabbinical] suspension of any Biblical commandment is also considered Torah for, 'It is time to act on God's behalf, suspend your Torah' (Psalms 119:126); such is not a violation of the commandment, 'You shall not add [to it nor diminish from it].'" It is clear, then, that according to Ravad rabbinical enactment does not constitute a violation of the commandment 'You shall not add [onto the Torah].' What's more, it is possible to consider them part of the Torah itself, for we find that rabbinical laws themselves are based upon scriptural verses, and if it were forbidden to add, this practice would not be followed. Ravad explains that the temporary suspension of Biblical commandments when necessary is also to be seen as Torah.

Haikkarim: The Torah is subject to change
Rabbi Yoseph Albo , in his classic religio-philosophical work, "Sefer Haikkarim" (Book of Principles), brings the opinion of Rambam that one of the foundations of faith is that the Torah is unchanging, for "You shall not add to it nor diminish from it." It is forbidden to add to or diminish from that which is balanced and complete; doing so would cause its equilibrium and completeness to be lost. Rabbi Albo then attacks Rambam's opinion explaining that the prohibition against adding to or diminishing from the Torah is actually a prohibition against changing the fine details of the laws of the Torah. In general, though, the Torah is subject to change. For example, it was forbidden for Adam to eat meat, yet for Noah it became permissible. Rabbi Albo continues, saying, "A further difficulty with Rambam's position is that if the words "You shall not add to it nor diminish from it," were meant to imply that it is forbidden to add to or subtract from the number of commandments [in the Torah], how is it that the Sages taught that Torah courts may establish a safeguard even where it would result in the passive violation of a commandment of the Torah. Certainly Torah courts would not violate the prohibition of "You shall not... diminish from it."

We find, then, that Rabbi Albo does not agree with the Rambam's position that it is necessary for the Rabbis to make it absolutely clear that a particular ordinance is rabbinical and not the actual Torah law in order to avoid violating the prohibition against adding to the Torah. He holds that when the Sages enact an ordinance or decree, what we are dealing with is, in fact, an addition to the Torah itself. This is only understandable if we follow the aforementioned approach of Ramban, which claims that rabbinical ordinances and decrees do not constitute an "uprooting" of the Torah, but are a natural evolution of the reasoning and desire of the Torah itself.

It appears that Rabbi Yoseph Albo's criticism is triggered by Rambam's position that the Torah is perfectly complete - it will neither change nor be replaced. This being the case, says Rambam, there is no justification for "man-made" additions to the Torah. This is true not only concerning actual additions to the Torah itself but even regarding rabbinical ordinances. It follows that rabbinical ordinances, by their very nature, constitute an assault upon the Torah; they cannot be considered a development of the Torah, for the Torah need not "develop." Therefore, in order to enact ordinances, the Rabbis need special authority. This authority is given by the Torah itself in the form of the commandment, "You shall not turn aside from the law that they declare to you" (Deuteronomy 17:11). Yet, Rabbi Yoseph Albo - and I believe Ravad and Ramban as well - hold that the Torah is, in principle, given to change. Therefore, additions and subtractions through rabbinical ordinances are perfectly justified, for they constitute no less than the natural development of the reasoning of the Torah itself.

Rabbi Yehudah HaLevi: "The Masses shall not add..."
Regarding our question, the response of the wise Rabbi to the question of the Khazar king in Rabbi Yehudah HaLevi's classic work "The Kuzari" deserves mention. "How is it possible" asks the king, "to resolve the apparent contradiction between rabbinical ordinances and the Torah commandment: 'You shall not add to it nor diminish from it'"? The Rabbi answers as follows: "This was said to the masses so that they would not contrive according to their own intellects, philosophize based on their own thoughts, and establish laws for themselves based on their own reasoning. When the Torah says, 'Do not add to the law which I commanded you,' it means that you may not add to or subtract from that which I have commanded you through Moses and through prophecy... or, do not add to those laws which are agreed upon by the priests and judges... for they are aided by the Divine Presence. Furthermore, because there are so many of them, it is not possible that they will arrive at a consensus which is contrary to the Torah..." It becomes apparent from the above that concerning rabbinical ordinances there can be no violation of the Torah commandment not to add to the law - they do not contradict the Torah, and are not to be viewed as deviation from it. We see, then, that rabbinical ordinances must evolve and derive from the Torah itself. Therefore, the wise Rabbi sees the need to emphasize that they are without mistake and do not constitute a violation of "You shall not add to it..." for they do not contradict the Torah at all. Rabbi Yehudah HaLevi, then, joins the ranks of all of the above opinions in disagreeing with the Rambam who, as we have said, holds that rabbinical ordinances by their very nature contradict the Torah.

Temporary "Uprooting"
As we said at the beginning of our study, the Rabbis are permitted to enact safeguards in order to prevent the violation of Torah commandments, even if the safeguard itself "uproots" (i.e. violates) a Torah law. Yet, we find a discrepancy between the sages of the Talmud concerning the nature of this uprooting. According to Rabbi Natan in the name of Rabbi Oshaya, rabbinical safeguards may be enacted in cases where they result in a passive violation of a commandment of the Torah (i.e. to forbid that which the permitted), but not in cases where they would cause an active violation (i.e. to permit that which The Torah forbade). Rabbi Chisda, though, holds that the Sages are even permitted to legislate an active violation. Rabbi Natan in the name of Rabbi Oshaya admits, though, that in a case where the violation is only temporary it is permissible even in the case of an active violation.
This practice deserves a closer look, for, while authority to uproot Torah laws might be understandable in the case of a prophet - there is an explicit verse stating, "You must obey him [i.e. the Prophet]" - from where does a rabbi receive such authority?

Rambam likens rabbinical safeguards that result in the temporary violation of Torah commandments to a medical operation that calls for the amputation of a patient's limb in order to save the rest of the body. He writes that this is the case with both positive and negative commandments, but only temporarily. "Just as the doctor," writes Rambam, "amputates the hand or leg of his patient in order to save the life of the body as a whole, so a Torah court must sometimes abrogate a few laws of the Torah temporarily in order to preserve the entire body of Torah commandments. This is reflected in the words of the Sages: '[It is sometimes necessary to] desecrate one Sabbath in order to observe many Sabbaths.'" Rambam further writes that this is not to be considered "adding" to the Torah. Rather, these are preventative measures, safeguards designed to prevent people from violating actual commandments of the Torah.

The enactment of safeguards that result in temporary violation of Torah appears to me to be a sort of response to existing situations with the purpose of protecting the Torah. Therefore, it would seem that what we are dealing with here is not a "tampering from without" or abrogation of the Torah. What we have is an accurate appraisal of the necessity of the hour, and a conclusion based upon the true desire of God and of the Torah. Just as a doctor must take into consideration the overall and long-term good of his patient, so too, from the verse, "You must obey him," we learn that Torah scholars posses the right to take into account all relevant considerations, seeing the entire picture and not taking a narrow view of things. Therefore, this temporary uprooting does not constitute an intervention into Torah matters. Rather, it is a revelation that such is the way of the Torah itself. Accordingly, even Rambam would agree that there is no violation of "You shall not add to it" here.

It seems that when it comes to these sorts of safeguards Rambam agrees with the reasoning of Ramban that we mentioned above concerning the authority of the Rabbis in general. There, in the case of independent rabbinical ordinances, Rambam writes that the authority of the Rabbis rests upon a Scriptural verse. Here, though, he would agree. The enactment of safeguards which result in temporary violation of Torah law is relevant in all generations while, on the face of things, the prohibition "You shall not turn aside from the law that they [the Rabbis] declare to you" is relevant only with regard to High Court decisions. For this reason, Rambam writes that such safeguards are reason-based, and not to be considered abrogation of the Torah, for, after all, they are only temporary.
Rabbi Chisda drew implications from here to all rabbinical law. For the sake of the Torah, the Sages are even permitted to enact permanent active violations of the Torah. After all, all rabbinical law rests upon the fact that the Rabbis evaluate things in accordance with Torah values. They say that these evaluations are actually part of the Torah itself, within the framework of the Torah, and that they are the natural development of the desire of the Torah. The Rabbis did not simply enact decrees and ordinances for the fun of it. They enacted them according to the needs and necessities of the Torah. This being the case, it is permissible to legislate a violation of the Torah, for this is not really a violation as such, but the preference of one Torah value over another. Based on the words "You must obey him" Rabbi Chisda learned that the Sages possess the authority to make these judgements. This being the case, what we have here is not violation of the Torah but the unveiling of God's desire. Rabbi Natan, though, disagrees. He holds that there is a difference between the sort of legislation which causes a temporary violation of the Torah on the one hand, and rabbinical law in general on the other.

"It is time to act on God's behalf, suspend your Torah"
We find that there are situations that the Sages refer to as "It is time to act on God's behalf, suspend your Torah" (Psalms 119:126). In these situations, the Sages permitted the legislation of active Torah violation on a permanent basis - for all generations. One example of this sort of ruling is the allowance to record the Oral Tradition, an act that the Torah itself forbade. It is possible to say that here, it is all the more clear that such legislative sanction is the true desire of God and His Torah. The reason that it is forbidden to write down the Oral Torah is so that people will learn the Torah, and know it. Yet, if by refraining from writing the Oral Torah the opposite results and everything is forgotten, then clearly the Torah prohibition has not served its intended purpose. Therefore, it appears to be better to establish a safeguard to the Torah - allowing the Oral Tradition to be recorded - even where it results in the active violation of a Torah law on a permanent basis.


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