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:
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.
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.
"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?"
ReplyDeleteExcept, 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.
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.
Delete