the takanah of tefilah -- Avos or Anshei Knesses haGedolah?

The gemara (Brachos 26b) quotes a machlokes whether tefilah is k’neged korbanos (Rashi: and were established by Anshei Knesses haGedolah) or tefilos avos tiknum. Yesterday we noted that the Rambam seems to quote both views: in Hil Melachim he writes that Avraham davened shacharis, Yitzchak davened mincha, etc, but in Hil Tefilah he writes that the nusach and zmanin of tefilah were established by Anshei Knesses haGedolah. How could the Rambam take both sides in the dispute?

The simplest explanation is that the Rambam is addressing two different issues: 1) the historical question of when tefilah originated; 2) the halachic question of when the obligation to daven originated. The Rambam in Hil Melachim is giving is a historical retrospective; the Rambam in Hil Tefilah is giving us a legal analysis (see P.S.'s comment to the previous post). What about the gemara? The debate in the gemara is whether the historical metziyus was itself a takanah (or the basis for a takanah which originated later), or whether the takanah of tefilah is distinct from it historical antecedents.

You can stop reading here if you like, but the truth is that it’s a little more complicated than that. To say the Rambam in Hil Melachim is addressing metziyus while the Rambam in Hil Tefilah is addressing din is not exactly correct. The Rambam in Hil Melachim writes:

ג וכן היה הדבר בכל העולם, עד אברהם נצטווה יתר על אלו במילה, והוא התפלל שחרית. ויצחק הפריש מעשר, והוסיף תפילה אחרת לפנות היום. ויעקוב הוסיף גיד הנשה, והתפלל ערבית. ובמצריים נצטווה עמרם במצוות יתרות, עד שבא משה רבנו ונשלמה תורה על ידו.

Avraham was commanded and obligated to do milah – it was not voluntary or optional for himself or his descendents. The Rambam’s lumping of tefilah in the same category suggests a similar level of binding obligation. The contrast between Hil Melachim and Hil Tefilah is not historical metziyus vs. din, as both sets of halachos deal with legal obligations. But this begs the question (again): why do we need two overlapping sets of takanos?

The answer can be gleaned from another Rambam that Havolim discussed recently on his blog (link - second week in a row that I'm stealing his material). The Rambam opens Hil Aveilus by saying that seven days of aveilus, although practiced by Yosef and his brothers, is not a din d’oraysa but rather a takana originating with Moshe Rabeinu:

אבל שאר השבעה אינן דין תורה, אף על פי שנאמר בתורה "ויעש לאביו אבל, שבעת ימים" ניתנה תורה, ונתחדשה הלכה; ומשה רבנו תיקן להם לישראל שבעת ימי אבילות, ושבעת ימי המשתה

Havolim explains: “…The events that preceded Matan Torah cannot have the force of law. Only the Torah is the source of the law. But…the Torah is stating a truth, a fact, a reality. The reality is that a life-changing discontinuity, an emotional upheaval, necessitates a week of adjustment and assimilation. This is not a halacha, it is a statement of fact…”

Apologies if I may be misreading him, but it sounds like what he is saying is that aveilus of Yosef is a metziyus, not a din. But b’mechilas kvodo, that’s not exactly what the Rambam says (and I’m no smarter than Havolim is - I just happened to see the diyuk in Shiurim l’Zecher Aba Mori by the Rav, vol II, p. 204) The Rambam uses the expression “nitna Torah v’nischadsha halacha.” We find this idea applied in halacha to mitzvos ben Noach which apply post mattan Torah, but which take on different parameters. The Rambam here is mechadesh that the same reasoning applies to takanos derabbanan. There was indeed a legally binding obligation of aveilus created by Yosef. However, that legal obligation took on a new character post-mattan Torah and was only binding as re-ratified by Moshe Rabeinu.

In other words, there are two types of takanos. There were gezeiros and legal obligations which existed pre-mattan Torah and carried the weight of law in their time. However, Mattan Torah transformed things. Old takanos may have continued as minhag (I can’t imagine everyone stopped davening), but they had to be reintroduced and formally incorporated into the new system to gain the stamp of authority as Rabbnic law. The former type of takanah is what the Rambam was speaking of in Hil Melachim. The latter type takanah, relevant to our behavior, is what the Rambam was speaking of in Hil Tefilah.

Let me end off with this: we once discussed (link) R’ Elchanan’s question of how takanos existed pre-Mattan Torah when there was no pasuk of “lo tasur” binding anyone to follow them. R’ Elchanan answers based on the Ramban, who rejects "lo tasur" as the basis for the authority of takanos derabbanan, that takanos are binding because they in essence are the ratzon Hashem. I think the Rambam (perhaps l’shitaso) might answer that question a little differently. Looking for the smoking gun of "lo tasur" is pointless because the requirement of "lo tasur" is a product of nitna Torah v’nischadsha halacha, a post-mattan Torah perspective on legislative process and authority. It simply did not apply to earlier periods. Perhaps pre-mattan Torah ain hachi nami, there was nothing other than communal consent which held takanos in place.