Tuesday, August 13, 2013

Meshech Chochma on Lo Tasur

The Rambam holds that violating any din derabbanan constitutes a violation of the d’oraysa of lo tasur.  Ramban asks the obvious question: so why are there distinctions between dinim derabbanan and dinim d’oraysa, e.g. s’feika derabbanan l’kula, s’feika d’oraysa l’chumra?  Behind every derabbanan is the potential d’oraysa of lo tasur?

There are two basic approaches to answer this question:

1)    The answer the Ramban himself anticipates and which other Rishonim affirm: really there is no difference between d’oraysas and derabbanans -- they are categorically equivalent -- but the Chachamim built into their enactments loopholes like s’feika l’kula so that they should not be confused with real dinim d’oraysa.

2)    The answer of the Meshech Chochma (here) and others: lo tasur is a generic issur of rebelling against the authority of Chazal – it does not mean each individual Rabbinic law takes on the character of a din d’oraysa.

Thanks to B. for his mareh makom in the comments to yesterday’s post on asmachta to the PM”G in the pesicha ha’kolleles who explains that there are two types of asmachtos: an asmachta that is just a hint, and an asmachta that functions like a real din d’oraysa. Where did the PM”G get this idea from?  He adopts the first approach to answer the Rambam, that really every derabbanan should be a d’oraysa if not for self-imposed loopholes, and suggests that an asmachta is just a din derabbanan without the loopholes.  If we accept this idea that there are d’oraysa asmachtos, it’s not so puzzling if the gemara (as we saw yesterday from Sukkah 6) creates an asmachta for a halacha l’Moshe m’Sinai.

However, I don’t think that this answer helps answer for the Meshech Chochma, who did not accept the theory that dinim derabbanan and dinim d’oraysa are functionally equivalent.

Is there any proof from the Rambam which of these two theories he adopted?

R’ Chaim (quoted in R’ Elchanan’s Kuntres Divrei Sofrim) quotes the following proof from Hil Sotah ch 2:

 כל איש שבא ביאה אסורה, מימיו אחר שהגדיל--אין המים המאררים בודקין את אשתו; אפילו בא על ארוסתו בבית חמיו, שאסורה מדברי סופרים--אין המים בודקין את אשתו

Let’s say the ba’al did not wash netilas yadayim before lunch – he violated a derabbanan, but that has no effect on whether the sotah waters work or not.  It’s only because we treat an issur derabbanan of arayos not as some generic violation, like the Meshech Chochma learned, but rather as a particular arayos related crime that the sotah waters are prevented from working. 

 Similarly, the same appears to be true from the Rambam in Hil Na’ara Besula ch 1:

  הייתה אנוסה זו אסורה עליו--אפילו מחייבי עשה, ואפילו שנייה--הרי זה לא יישאנה
It's not just any generic derabbanan that prevents the anus from marrying his anusa – it has to be an arayos related issur.  We again see that dinim derabbanan are categorically equivalent to their d'oraysa counterparts and are not considered just some generic type issur.


  1. "Ramban asks the obvious question: so why are there distinctions between dinim derabbanan and dinim d’oraysa, e.g. s’feika derabbanan l’kula, s’feika d’oraysa l’chumra?"

    Except, Rambam didn't see these Halakhic distinctions as being fundamental. In Hilkhot Tum'at Met 9:14[12], it says( in translation):

    "It is well known that all these and other similar instances which are ruled impure although there is a doubt involved are Rabbinic safeguards. According to Scriptural Law, only one who has definitely contracted impurity is deemed impure. All stringencies stemming from doubt, whether with regard to ritual impurity, forbidden foods, forbidden intimate relations, or the observance of the Sabbath, are only Rabbinic in origin, as we explained in Hilchot Issurei Bi'ah( 18:18[17]) and in other places( see Kil'ayim 10:23[27]). [Nevertheless, when there is a situation where one would be liable for karet for an intentional violation, it is forbidden by Scriptural Law to act in a manner that allows for the possibility that one committed such a violation, as evidenced by the fact that one who performs such an act is obligated to bring a provisional guilt-offering, as stated in Hilchot Shegagot.]"

    ( Cites to other sources, the square brackets representing text not in the Mechon Mamre edition, and the emphasized part, are mine.)

    Also, although generally a Mitzvah de-Oraita sets aside a Mitzvah de-Rabanan, sometimes a Mitzvah de-Rabanan sets aside a Mitzvat Aseh( e.g. releasing an 'Eved Kena'ani to join a Minyan, in Avadim 9:7-8[6]; Mitzvot Aseh are set aside in favor of Miqra Megilah, in Megilah 1:1) or an Isur( e.g. not fulfilling a vow to fast on Chanukah or Purim, in Nedarim 3:9) from the Torah.

    1. Indeed, in light of this Rambam [and the Ra'avad agrees], it is difficult to understand the question of the Ramban on the Rambam in Sefer Hamitzvot.