Monday, October 21, 2013

can we learn halachos from sefer Braishis (ain l'meidin m'kodem mattan Torah)?

I want to come back to the Meshech Chochma I ended off lastweek with.  Summary: the Meshech Chochma writes that the pasuk “ki yidativ l’ma’an asher yitzaveh es beiso acharav” is new din d’oraysa that teaches us there is a mitzvah of chinuch.  I asked how we can use this as a makor when the Rambam in Peirush haMishnayos in Chulin writes that the reason we observe milah is not because Avraham was commanded to do milah, and the reason we observe gid ha’naseh has nothing to do with Ya’akov – mitzvos are done only because they were commanded at Sinai.  So Shouldn’t you need a source post-Sinai – not just the behavior of the Avos – to establish a mitzvah of chinuch?

Before getting to what I think the answer might be, a few other side issues.  My son and others objected that we see from many gemaras that chinuch is only a din derabbaban, e.g. a katan she’higiya l’chinuch cannot be motzi a gadol who has a chiyuv d’oraysa because the katan’s chiyuv is only derabbanan.   I don’t think this is a problem.  The Meshech Chochma is not talking about the *katan’s* chiyuv – he is talking about the *father’s* chiyuv to educate his children.  Different thing entirely. 

Secondly, the Ms”C is halacha, not derush, as there are real nafka minos involved.  The Meshech Chochma holds that chinuch applies to both boys and girls since the pasuk uses the word “beiso,” which is inclusive of all members of the family.  See Nazir 29 and the Achronim on OC 343 for a discussion of whether this is true.

As far as my question goes, kushya m’ikara leisa, the question is not really a question.  What I have to say is completely based on ch 6 of Rav Kopperman’s introduction (“Pninei Meshech Chochma) to the new edition of the Meshech Chochma and you are better off seeing his words than mine if you have access to it.  The issue I raised is based on my confusing a question of history with a question of textual meaning.  The Rambam in the Peirush haMishnayos is dealing with a historical question: when did bris milah or gid ha’nasheh become a mitzvah – when it was commanded to Avraham or Ya’akov, or later, at Sinai?  The Rambam answers that historically, there were no binding commandments until Sinai.  However, once the historical event of mattan Torah happened and we were given Torah and mitzvos, that entire corpus of Torah text that we were given, from Braishis to the very end, is fair game to be used as halachic source material, with one caveat: the text had to be written for that purpose.  Rules like “ain lemeidim m’kodem mattan Torah,” (Tos Moed Mattan 20a d"h "mah") the principle that halacha cannot be learned from pre-mattan Torah episodes, have nothing to do with the historical causality of mitzvos (the Rambam’s issue).  That principle is a textual rule of thumb – since the majority of the Torah text in Braishis is meant as narrative, it is generally not good source material for law -- it was not written for the purpose of teaching us law.  However, even in sefer Braishis, where the text drops the narrative mode, switches gears and uses legal mitzvah terminology, e.g. the parsha of milah by Avraham, those sections are fair game for deriving halacha.  Furthermore, even in a narrative section, where the pesukim use irregular expressions that suggest diyukim that have halachic import, even these pesukim are fair game for deriving halacha. 

So to answer my question, the Rambam is telling us that until the historical event of mattan Torah, there was no mitzvah of chinuch, of bris milah, of gid ha’nasheh.  The Meshech Chochma is telling us that now that post-Sinai we have a text of Torah, under the right conditions even pesukim that appear in narrative sections, pesukim like “ki yidativ…,” can have halachic import.


  1. Nice. Would this explain לא יעשה כן במקומינו which became a minhag not to let the younger daughter marry before the older daughter? Also, milah is repeated, gid hanasheh isn't. Also hilchos poalim from Yaakov.

  2. Nice. Would this explain לא יעשה כן במקומינו which became a minhag not to let the younger daughter marry before the older daughter? Also, milah is repeated, gid hanasheh isn't. Also hilchos poalim from Yaakov.

  3. I don't know if you'll still see this but I think that if you check the rambam aveilus 1:1 its clear that he understood the yerushalmi of ein lemedin m'kodem limattan torah not as a textual issue but as a substantive issue - which I am afraid seriously undermines a major portion of this thesis.

    1. How does it affect his thesis? 7 days of aveilus from Yaakov is a detail, not the command. Rambam himself says the source of aveilus is a psuk in SHmini, which was after matan Torah!

      The Geonim who say aveilus shiva is min hatorah, they learn the Yerushlami that says "ulemeidin davar min kodem matan Torah" is a statement, not a question as the meforshei yerushalmi say (I heard that from Rav Ahron Soloveichik in a yahrzeit shiur. I think he also published it in HTC's journal Ulpena around 1970)

  4. Say better: something is a mitzvah because it was given at Har Sinai. The pasuk teaching us the mitzvah can be from before matan Torah.
    Proof 1: Where is isur gid hanashe written in Torah after Gid Hanashe? Nowhere. But it was given to Moshe at Sinai.

    Semi proof 2: some dinim of shabbos were given in Beshalach, before matan Torah (maybe aseh of tishbos, maybe even hotzaa [maybe that's why hotzaa is melacha geruah, given before sinai], see kli chemdah, and even you talked about it

    Semi proof 3: hilchos korban pesach are written in Bo. (Yes, there are differences between pesach mitzrayim and pesach doros as the Tosefta lists, and secondly, in Behaaloscha it says v'yaasu es hapasach b'moado which you can claim shows the mitzva, though you can argue and say that was hostory, not chiyuv)