Wednesday, May 24, 2006

Divrei Sofrim and Dinei Derabbanan (III)

A zakein mamre is one who violates the issur of lo tasur by giving a hora’ah/psak that conflicts with the ruling of Sanhedrin on an issue which can lead to an issur kareis. The Rambam in Hil Mamrim (1:2) writes that even if the disagreement revolves around an issur derabbanan, one can still become a zakein mamre – for example, if one paskens that chameitz during the sixth hour of the day on erev Pesach (which is only assur m’derabbanan) is permitted b’hana’ah, that chameitz might be used for kiddushin, creating an eishes ish status with issurei kareis for an adulterer all based on a psak that contradicts the Sanhedrin. Even though the law enacted by the Sanhedrin is not a Torah law, one can still be in violation of a d'oraysa of lo tasur by disagreeing with such a din.
The Ramban in his hasagot to the first shoresh in Sefer haMitzvot attacks the Rambam’s position. If indeed every derabbanan hinges on a d’oraysa obligation of lo tasur to obey the Sanhedrin, why are we more lenient with respect to dinei derabbanan – ultimately, the violation of a derabbanan is itself a violation of the d’oraysa of lo tasur? Why are we lenient by a safek derabbanan but not a safek d’oraysa when every derabbanan itself is a potential safek violation of lo tasur?
According to the Ramban, one is forced to say that dinei derabbanan are not connected with the command of lo tasur or any other specific mitzvah, otherwise one cannot avoid the questions raised by his hasaga. If so, why is one ever obligated to follow the enactments of Sanhedrin? R’ Elchanan’s suggests that one can understand the Ramban in light of his chiddush (quoted yesterday) that the ‘ratzon Hashem’ must be obeyed even without a specific command to do so. A din derabbanan by definition reflects the Sanhedrin's understanding of the ratzon Hashem, which itself, even without a specific mitzva, requires being obeyed.

It is worth noting that the Meshech Chochma in P’ Shoftim defends the Rambam by proposing the exact opposite thesis as R’ Elchanan – i.e. although the Sanhedrin is granted legislative authority through lo tasur, one cannot say that each specific law they create is the ratzon Hashem the way a mitzvah is. It is worth taking a look at the machlokes Rambam/Ramban in greater depth, but for now, more to say on this chiddush of R’ Elchanan. Stay tuned…..

12 comments:

  1. Bill Selliger11:51 AM

    A din derabbanan by definition reflects the Sanhedrin's understanding of the ratzon Hashem, which itself, even without a specific mitzva, requires being obeyed.

    By what grounds? Who says? If one of the Sanhedrin comes home and asks his wife to do the laundry, is that "ratzon Hashem"? Probably not. So where is the line of demarcation, and how is it established? Ultimately, at some point, it's going to point back to the Torah. No?

    ReplyDelete
  2. I think you have to limit it to hora'ah, but hear the kashe. Correct me if I'm wrong, but you are assuming that lo tasur is limited to hora'ah and not just stam an instruction?

    ReplyDelete
  3. Bill Selliger1:35 PM

    What is the difference between hora'ah and a mundane instruction? Is it the subject matter? Is it the source (speaker)? Is it the context?

    The end of the pasuk of "lo sasur" talks about "yamin u'smol", and the chachomim darshen "even on the right that it is the left", which leads me to believe that it's not just talking about "hora'ah", as you put it.

    I don't have an answer, and I'm not trying to give you (or Rabbi Wasserman) a hard time. The question needs to be asked, though. Like the Rambam and M"CH, it's not shver, because the bottom line is that there's a tzivuy in the Torah to listen to the chachomim. (The parameters of that chiyuv can be debated, but a chiyuv exists). Even like the Ramban (without REW) it can make sense. But REW changes the whole equation when he introduces this "ratzon Hashem" business. What the heck is that? And who died and made these people (the Sanhedrin/chachomim) king? Which brings me back to my point: At some point, REW is going to have to open a chumash and point to a pasuk to prove his point, which would then defeat his purpose.

    ReplyDelete
  4. The Minchas Chinuch (new edition? : ) has a chakira with respect to the mitzvah of obeying a Navi whether it applies only to what he hears from Hashem or to good advice he gives. You are in effect raising the same question about Sanhedrin. My impression was lo tasur is far more limited - only to B"D hagadol when sitting b'mekoman, etc. like the Rambam sets out in Mamrim.
    Without REW, how do you defends the Ramban? If you come back to a tzivuy, then you also come back to the Ramban's own kashe that you should say sefeika derbbanan l'chumra and never be meikel because of the underlying d'oraysa? A Brisker would not like the metaphysics of intuiting ratzon Hashem either - R' Chaim has a different hesber. Maybe I'll get to it bl"n.

    ReplyDelete
  5. Bill Selliger6:04 PM

    Without REW, how do you defends the Ramban? If you come back to a tzivuy, then you also come back to the Ramban's own kashe that you should say sefeika derbbanan l'chumra and never be meikel because of the underlying d'oraysa?

    You could say that there is bichlal a chiyuv d'oraysa to listen to the chachomim, but that doesn't carry over to any specific tzivuy. Exactly like what he holds by "kedoshim tihiyu", or "va'sisa hayashar v'hatov". (Of course, then you have the problem we discussed earlier - about what differentiates a specific d'oraysa from a general k'lal).

    The bottom line is, the pasuk says "lo sasur", and it's referring to the chachomim. According to REW, you have nothing.

    ReplyDelete
  6. You are mechavein to R' Chaim Brisker.... bli needer I will catch up with you.

    ReplyDelete
  7. Tal Benschar10:29 AM

    Chaim and Bill, don't you have to distinguish between a horaah of the chachamim interpreting a deoraysa and a takkanah (or gezeira) derabbaban? The former is what the peshuto shel mikra is talking about -- someone does not understand a din in the Torah, and then the beis din ha gadol paskens. I think even the Ramban would agree that in that case listening to the chachamim is a chiyuv deoraysa and one who does not violates lo sasur (and may even be killed as a zaken mamrei!).

    The question is in takkanah's derabbanan -- which are not interpretive but legislative -- whether failure to listen is lo sasur.

    Or was this distinction a davar pashut to your discussion?

    ReplyDelete
  8. Bill Selliger10:59 AM

    Tal:

    I don't see why that distinction needs to be made (and it could be a gemara - I just don't remember it. If you have a source proof, please provide). Also, the case that Reb Chaim (Brown) brought REW's explanation to was Moshe (our Rabbi) adding a day on his own - which is not "interpreting a deoraysa", as you put it.

    Even if it is made, though, we can steer our discussion to the 'takkana' side of the coin. The argument against REW still holds true: What binds me to listen to the Rabbis when they are making takkanos?

    ReplyDelete
  9. The Rambam lumps everything under lo tasur, even right down to creating minhagim. I think you are right in the Ramban, that there is a chiluk between derashos and real takkanos. According the Rambam a derasha has din d'oraysa status; the Ramban asks his kashes on on pure derabbanans.

    ReplyDelete
  10. Tal Benschar3:34 PM

    "What binds me to listen to the Rabbis when they are making takkanos? "

    Well, there are other makoros besides lo sassur for derabbanans. There is a derasha (which I am sure I am about to butcher) on the possuk ve-shamru es mishmarti -- vaasisem mishmeres le mishmarti -- that one makes a fence around an issur, aka gezeiros. There are also other similar derashos which I cannot remember now. The point is there might be other sources for derabbanans (or certain types of them) apart from lo sassur. Presumably the Ramban would rely upon these other sources of authority.

    ReplyDelete
  11. Bill Selliger3:48 PM

    Exactly! But what I understand REW as saying is that you should listen to the Rabbis because "they know ratzon hashem", not because Hashem ever told you to. As long as REW has to come back to a pasuk ("lo sasur" or any other one), his theory is shot (if I understood it correctly).

    ReplyDelete
  12. Anonymous8:46 AM

    Enjoyed a lot! » »

    ReplyDelete