The Rambam writes in the first shoresh of Sefer haMitzvos:
וכבר התבאר שכל מה שתיקנו הנביאים עליהם השלום שעמדו אחר משה רבנו, הוא גם כן
מדרבנן.
And the Rambam reiterates:
הנה התבאר לך שכל מה שתקנו אחר משה נקרא דרבנן
I bolded the key words - "achar Moshe Rabeinu" - so you can't miss it. The Rambam says that takanos instituted after Moshe's lifetime are all derabbanan, implying that takanos that Moshe himself enacted have the status of a d'orasya. Why should that be? Perhaps since "Shechina medabares m'toch gerono" every word uttered by Moshe was as if it came from directly from G-d and therefore has a d'oraysa force.
The Rambam writes in Hil Aveilus (1:1):
אבל שאר השבעה אינן דין תורה, אף על פי שנאמר בתורה "ויעש לאביו אבל, שבעת ימים"
(בראשית נ,י): ניתנה תורה, ונתחדשה הלכה; ומשה רבנו
תיקן להם לישראל שבעת ימי אבילות, ושבעת ימי המשתה.
The Rambam tells us that the halacha of having seven days is not based on the pasuk that speaks about mourning for Ya'akov, but rather is a din derabbanan based on a takanah of Moshe Rabeinu.
How can aveilus be only derabbanan be when the Rambam told us in SH"M that takanos of Moshe have a d'oraysa status?
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More comfortable to make the diyuk that everything that was m'tukan after Moshe Rabbeinu was d'rabanan, even by nevi'im, whereas what was decreed in the time of Moshe was sometimes d'Oraysa, sometimes d'rabanan.
ReplyDeleteGranting the point for the sake of argument, can you give me an example of a takanah made my Moshe that is d'oraysa?
DeleteAlso, ktzas kashe, the Rambam in hil Aveil still doesn't flow so well. B'pashtus he is drawing a contrast between d'oraysas and takanos of Moshe, which are only derabbanan, to prove his point that aveilus aside from day #1 is only derabbanan. But if takanos of Moshe might also be d'oraysa, then the contrast fails.
I suspect it goes the other way: because of Moshe’s status he could not establish takanos lest they be mistaken for d’oraysa. But aveilus was a pre-existing minhag, so Moshe could codify it in a takanah that would be recognized as such.
DeleteMoshe did make takanos, e.g. Rambam hil tefilah ch 12:
Deleteמשה רבנו תיקן להן לישראל, שיהיו קורין בתורה ברבים בשבת ובשני ובחמישי בשחרית
It might have to do not with "Hashem medaber mitokh gerono" as much as HQBH canonizing Devarim. Just as HQBH put his imprompeteur on Moshe's final speeches (as He presents them) as valid material for TSBK, so too Moshe Rabbeini's dinim. Efshar?
ReplyDeleteTake a look at the Kli Chemdah in P' Devarim. He discusses this Rambam in that context.
DeleteDoesn't Brisk hold that laining on Monday and Thursday is (or may be) dioraisa?
ReplyDeletePerhaps - and see Rav Yoshe Ber Soloveitchik zt"l in Shiurim L'zecher Baa Mari - Shtei Sugei Mesores - a unanimous takanas sanhedrin can never be revoked by another beis din. Only a non-unanimous decree can be annulled by a later Sanhedrin who is greater in numbers and wisdom. Rambam clearly calls some takanos dirabanana "halacha leMoshe misinai" even though they came much later than Moshe, because anything which cannot be altered or changed has the status of halacha lemoshe misinai.
ReplyDeleteTherefore (I'm suggesting), if Moshe made a takan, and Moshe was like 71 (Sanhedrin 16 is it?), no later Beis Din can ever retract a takan of Moshe. Hence it would be similay to halacha l'moshe misinai. But a Derabanan - takana after Moshe - is dirabanan, even though some have the potnetial to be calle dHalacha Lemoshe Misinai if they owuld be accepted unanimously by the Sanhedrin.
TO BINYAMIN-
No, not midoraissa, Rav Chaim held kriya is a chiyuv on the individual, not a chiyuv on the tzibbur. He got it from the Ramban in the Milchamos in Megilla, and you can read the Milchamos as he did, or you can read it exactly opposite, that it is not a chiyuv on the yachid, as his own Mechutan Rav Elya Pruzhener, and their grandson Rav Yosef Dov did.
I hear what you are saying -- it's like "b'emes amru" in the Mishna, which is sometimes a derabbanan, but Rashi writes it's HlM"M. However, I'm not convinced it fits the context. According to what you are saying Moshe's takanos are still just takanos, albeit ones that cannot be repealed.
Delete