af hein ha'yu b'oso hanes -- kiddush, matzah, 4 kosos, etc.

There is a teshuvah from the Mahara”m m’Rotenberg (I’m not such a baki – R’ Ovayda z”l quotes it in Yechaveh Da’at 2:65) that asks why we need the hekesh of zachor to shamor to obligate women in the mitzvah of kiddush – why not say they are obligated because of af hein ha’yu b’oso ha’nes?  We say in kiddush that Shabbos is zecher l’yetzi’as Mitzrayim and women also experienced the nes of being taken out of Egypt.  The Mahara”m m’Rotenberg answers that “oso hanes lo shayach l’kiddush.” 

Before getting to what he means by the answer, it’s clear from the question that the Maharam m’Rotenberg held that the sevara of af hein can create a chiyuv d’oraysa.  By way of contrast, Tosfos (Meg 4b) explains that we need to learn that women are obligated in the mitzvah of matzah from a hekesh to chometz because af hein can create only a chiyuv derabbanan, not d’oraysa.  Tosfos gives another answer as well (see also Tos Pesachim 108), perhaps because other ba'aleu Tos. disagreed and held like this Maharm m'Rotenberg.  

It sounds like what the Maharam m’Rotenberg means by his answer is that although there is a chiyuv to mention yetzi’as Mitzrayim in kiddush, yetzi’as Mitzrayim is not the mechayeiv of kiddush – Shabbos is the mechayeiv.

Rav Soloveitchik independently developed the same idea in a letter to his father (quoted in the Igros haGRI”D, Hil Chanukah).  Why is it that if one has only enough funds for either kiddush or ner Chanukah, ner Chanukah takes precedence because of pirsumei nisa [see Shu”T Avnei Nezer #501] –- is there not also an element of pirsumei nisa in reciting kiddush and mentioning yztei’as Mitzrayim?  RYBS answered that although kiddush may incorporate a kiyum of pirsumei nisa in that yetzi’as Mitzrayim is mentioned, pirsumei nisa it is not the mechayeiv of the mitzvah.  Only the mitzvos of 4 kosos, ner Chanukah, and mikra megillah share that quality.

This sevara answers Tos question as to why we cannot use af hein to create a chiyuv of achilas matzah.  Achilas matzah may incorporate a kiyum of pirsumei nisa in that it reminds us of the nes of yetzi'as Mitzrayim, but the mechayeiv of the mitzvah is not pirsumei nisa. 

duchening on Yom Tov sheni for a kohen visiting chu"l from Eretz Yisrael

M’inyan l’inyan from Yom Tov to the parsha:


The Sha’arei Teshuva at the end of O.C. 495 quotes a machlokes achronim whether a kohen who comes to chutz la’aretz from Eretz Yisrael to visit and therefore observes only one day of Yom Tov can go up to duchen on Yom Tov sheni. At first glance the safeik seems a bit hard to understand. I can understand why achronim might debate issues like what tefilah a ben Eretz Yisrael visiting chu”l should say on Y”Y sheni, as the tefilos of chu”l on Yom Tov are completely different than what a ben Eretz Yisrael would daven if he were home. However, when it comes to duchening, the minhag in Eretz Yisrael is to duchen every day anyway. M’mah nafshach: if the kohen follows minhag Eretz Yisrael, he should duchen; if he follows minhag chu”l and it is Yom Tov, he should also duchen – so what’s the safeik?
I think we see from here proof to a yesod that the Rav has in Shiurim l’Zecher Aba Mori that there are 2 dinim in birchas kohanim: 1) an independent mitzvah; 2) part of the cheftza of tefilah.

There is an interesting Yersuahlmi at the beginning of the 4th perek of Ta’anis:

מניין לנשיאות כפים (במדבר ו) כה תברכו את בני ישראל. עד כאן בשחרית במוסף (ויקרא ט) וישא אהרן את ידיו אל העם.

The Yerushalmi actually has two separate sources for birchas kohanim, one from parshas Naso, one from our parsha (Shmini) where birchas kohanim (see Rashi, Ramban) is mentioned as a concluding element of Aharon’s avodah. These two sources may reflect these two dimensions of the mitzvah. The chiddush of our parsha and the reason that we situate birchas kohanim in “retzeih” is because birchas kohanim must take place in the context of avodah/tefilah.

The Gilyon on the Yerushalmi at the beginning of that perek reflects the same idea. He is mechadesh that the reason we do not do birchas kohanim at night is not because avodah is never done at night, but rather it is because tefilas arvis reshus – we do not have a formal obligation of tefilah at night and therefore birchas kohanim has no context.

Returning to our issue, since a kohen who is a ben Eretz Yisrael would not daven a tefilas musaf on Yom Tov sheni, he lacks a cheftza shel tefilah in which to incorporate birchas kohanim (note that the second source quoted by the Yerushalmi addresses itself specifically to musaf!) and is therefore exempt from the mitzvah.

issur for a ben noach to hit a yisrael

The Rambam writes that a nochri who strikes a yisrael is chayav misa, but is not killed -- i.e. it is a chiyuv misa b'ydei shamayim (Melachim 10:6). The Rambam himself (Chovel u'Mazik 5:3) cites the gemara's proof: in our parsha Moshe strikes down the Mitzri who was hitting a yisrael. This is a very strange proof for a chiyuv misa b'ydei shamayim considering that Moshe actually killed the Mitzri in question!

In the Igros haGR"ID there is a shtickel torah that R' Ahron Soloveitchik said on this when he was 10 years old (!) Rashi writes that Moshe Rabeinu killed the Mitzri using the shem hameforash. R' Ahron suggested that this method of misa is at best a gerama, not a true action, and therefore does not constitute a ma'aseh of misas beis din. His proof: the Ritva writes that asking someone to commit murder is a gerama, not a real act of murder. We see that speech is not the same as action; QED that in our case as well, killing through speech is not the same as an act of misas beis din.

R' Moshe Soloveitchik wrote this shtickel to the Rav in a letter along with a he'ora of his own, and the Rav responded with a number of additional observations. I feel sorry for R' Ahron, who probably worked pretty hard on saying his chiddush, something any 10 year old could be proud of, yet it gets swallowed up in the complex give and take between the Rav and his father. The Rav rejected the proof from the Ritva, arguing that there is a difference between asking someone else to take action (=gerama) and a case where one's own words produce an effect, which is itself equivalent to action. The Rav also noted in passing that the chiyuv misa b'ydei shamayim in the case of murder is unique. With respect to other chiyuvei misa b'ydei shamayim, e.g. a zar who eats terumah, there is no obligation except k'lapei shemaya; however, with respect to hitting, there is real chiyuv misas beis din that at least should theoretically be carried out, but for technical reasons is transformed into a lesser punishment b'ydei shamayim. Finally, the Rav noted that this is not the only case of misa b'ydei shamayim given to a nochri. Similar chiyuvim exist for a nochri learning Torah, keeping Shabbos, and other cases. Although any violation of the 7 mitzvos is punishable by misas beis din, apparently these other violations, including striking a yisrael, are categorically different. The question is why, but I'm short of time, so we'll leave that discussion for another time.

the multiple facets of talmud torah

I wrote earlier about the focus of Brisk on the “4 amos of halacha.” It would be wrong to assume that this focus, for all its narrowness, excludes an appreciation of devikus, of avodah, etc. While these might not be viewed as independent values (as they are in the world of chassidus), they nonetheless still exist, subsumed under and part and parcel of the experience of talmud Torah.

The Rambam counts tefilah as a mitzvas aseh d’oraysa (Sefer haMitzvos #5). In addition to citing the derasha of “Ul’avdo – zu tefilah,” the Rambam also cites a derasha of, “U’lavdo – zu talmud.” Rav Soloveitchik (Shiurim l’Zecher Aba Mori – Birchas haTorah) notes that the implication of the Rambam is that talmud Torah itself is a kiyum in avodah. Study of Torah is not merely an intellectual endeavor, but is an act of devotion.

The Rambam writes in ch 3 of Hil T”T:

אף על פי שמצוה ללמוד ביום ובלילה, אין אדם למד רוב חכמתו אלא בלילה; לפיכך מי שרצה לזכות בכתר התורה, ייזהר בכל לילותיו, ולא יאבד אפילו אחת מהן בשינה ואכילה ושתייה ושיחה וכיוצא בהן, אלא בתלמוד תורה ודברי חכמה. אמרו חכמים, אין גורנה של תורה אלא לילה, שנאמר "קומי רוני בלילה"

If the pasuk of “Kumi roni ba’layla” refers to Torah study, how are we to interpret the end of the pasuk, “Shifchi kamayim libeich?” What does this pouring forth of the soul have to do with the heady intellectual experience of learning? This is exactly the Navi's point -- the stirring of the neshoma is as much a kiyum and part of talmud Torah as it is of tefilah.

The gemara (BK 81) derives from pesukim in Parshas Beshalach that Moshe Rabeinu instituted kri’as haTorah on Monday, Thursday, and Shabbos so that three days should not pass without Torah study. What was the nature of this takanah of public Torah study? Parshas Beshalach is pre-mattan Torah – there was no mitzvah of talmud Torah; there was no formal corpus of Torah to study!? Apparently this study of Torah was not done in fulfillment of any technical requirement of the mitzvah talmud Torah, but was a means of the people forging a relationship with Hashem (compare with the Shem m'Shmuel we discussed here.)

This notion can help us answer Tos. (Brachos 11) question of why we do not recite a new bracha every time we sit down to learn just as we recite a new bracha every time we (to take one example) enter the sukkah. The bracha on sukkah relates solely to the ma'aseh mitzvah of sitting in sukkah. Not so birchas haTorah, which relates more generally to this relationship between man and G-d forged by Torah. Even when one closes the gemara, the roshem of this relationship remains intact and reverberates throughout the day.

This is the meaning of the term “crown of Torah” used by the Rambam, similar to the crown of kehunah and malchus. Just as kehunah and malchus endow the individual with special qualities others lack, the study of Torah is not just a mechanical act of study, but produces a trans formative effect on one’s personality and character.

pirsumei nisa through hadlakah b'tzibur

Lighting menorah in shul is done to fulfill the mitzvah of pirsumei nisa b'tzibur. The minhag in many shuls is to light between mincha and ma'ariv. Why not light before mincha, as the menorah in the mikdash was lit before the korban tamid shel bein ha'arbayim, or after ma'ariv, when it is dark? Rav Soloveitchik explained that the idea of tzibur means more than 10 people who happen to be standing around in the same place. There has to be some halachic "glue" that joins these 10 people into one entity and creates tziruf. Tefilah accomplishes that task. Rather than light before mincha when tefilah has not yet started, or after ma'ariv, when the tzibur is breaking apart, the lighting is done in between, when that shem tzibur is in place. (I have never been happy with this idea -- where do we find a makor that the kiyum of pirsumei nisa demands a formal shem tzibur? To the contrary, we find by other halachos of pirsumei nisa, e.g. kri'as hamegillah, that the idea of 10 is pattered after the mitzvah of kiddush hashem b'rabim, which simply demands a public audience. I am wondering if this idea of hadlakah b'rabim may in fact not be a chiyuv b'tzibur, but a chiyuv on the tzibur, and that may create the more formal need for tziruf.)

when to light menorah

There is a machlokes between the Shulchan Aruch and the Rambam/GR”A as to the proper time to light chanukah the menorah. The S.A.’s view is that the menorah should be lit only after bein hashemashos, at dark, somewhere around 5:10 or 5:20ish in the NY area. The Rambam/GR”A hold that the menorah should be lit immediately after shekiya, around 4:30ish in the NY area.

Since bein hashemashos, twilight, is a period of safeik (it’s unclear whether it counts as day or night), we normally wait until after bein hashemashos to fulfill a mitzvah whose chiyuv starts at night/ the following day, e.g. reading megillah on Purim, eating matzah on Pesach, sitting in sukkah are all done after bein hashemashos, when we can say with certainty that it is dark/the next day. Why should menorah be different?

Rav Soloveitchik explained that with respect to other mitzvos, the chovas hagavra begins only after nightfall. Not so with respect to Chanukah. The reason we can't light earlier than nighfall is because, “Shraga b’tihara mai ahanei,” what good is a candle when you have daylight to see by -- a candle that serves no function is not a candle. The cheftza shel mitzvah, not the chovas hagavra, is lacking before dark. Since a candle provides noticeable illumination even during twilight, the GR"A held that the menorah should be lit immediately after shekiya. (We touched on this idea once before here.)

The Rav held that even the S.A. agrees in principle with this idea. The reason the S.A. says to wait until later is because while a candle lit during bein hashemashos does help us see better, it is not an absolute necessity.

The catch to the GR"A approach is Motzei Shabbos, when you have no choice but to light after bein hashemahos. The problem is your "ad she'tichleh regel min hashuk" clock after which you can no longer light begins ticking at shekiya. Ma'aseh Rav brings down that the GR"A would daven ma'ariv as soon as possible on this Motzei Shabbos to avoid this problem. On an ordinary Shabbos many people are inclined to wait extra time before ending Shabbos in deference to the view of Rabeinu Tam. However, because on this Motzei Shabbos that chumra turns into a kula with respect to Chanukah candles, it seems that (assuming you hold that the GR"A's view regarding nightfall is correct) it would be better to daven at whatever you hold the correct time for ma'ariv is m'ikar hadin. (I have seen written that Rav Soloveitchik held that nightfall is about 40 minutes after shekiya, and ma'ariv can be davened even earlier than that.) Of course, don't pasken issues based on a blog.

My son complained that he will be dismissed from yeshiva today at 4:30, too late to get home in time to light by shekiya. I told him to take it up with his menahel. As a sniff l’hakeil I suggested that if he can arrange for one of his free periods to fall out at the end of the day and learn during that time, he may not be mechuyav to stop his seder for the sake of lighting exactly on time (this is a discussion for another time).

rav soloveitchik on the dreams of yosef

I really want to spend time on the lomdus of the Rav, but it would really be remiss not to speak about Parshas VaYeishev, as it served as a springboard for some of the Rav’s seminal ideas. If Parshas VaYishlach is the blueprint for our perennial confrontation with Eisav, the non-Jew, Parshas VaYeishev is the blueprint for dealing with internal conflict, one Jew against another. Ya’akov’s return to Eretz Yisrael, Eisav’s move to the mountains of Seir, might have been the beginnings of the process of ultimate redemption (interestingly, this same theme is echoed in various sifrei chassidus), the final “yeshiva b’shalvah.” Yet, much like the parsha of the spies thwarted Moshe’s anticipated entry into Eretz Yisrael and the bringing of a final geulah, the conflict between Yosef and his brothers thwarted Ya’akov’s plans for ultimate redemption as well.

Why do the brothers hate Yosef? Yosef knows that the "yeshiva b'shalvah", the serene life desired by Ya’akov, will prove transient, he knows the burden of galus awaits. The brothers hate Yosef not only for what he dreams, but because he dreams – he thinks of the future, he makes plans to cope with the changes he sees approaching, while the brothers prefer to focus only on present, the status quo. The binding of sheaves represented a new economic model, different from the shepherding the brothers were used to; the sun, moon, and stars represent powerful outside forces that the brothers will be forced to contend with and interact with. Where will these changes take place? Not on the home-soil of Canaan, but in the cultural milieu of Egypt, making adjustment to change all the more daunting. Yosef saw that planning for change was necessary and unavoidable. Clinging to the way-of-life of the moment will lead only to stagnation and failure.

The Rav identified the personality of Yosef with the Mizrachi movement that he became part of. The dream of life in Eretz Yisrael, life outside the context of European Orthodoxy even while that culture seemed secure and the need for change remote, is what enabled yeshivos and comunities to rebuild and continue after the havoc of the war. Without that planning and vision, how much more would have been lost.

The Rav also identified Yosef’s two dreams as representing two different crucial ingredients for Jewish continuity. The binding of wheat represented material and economic success, physical prosperity. But Yosef saw that Jewish survival required much more than that. The dream of the sun and stars represented heavenly forces – spiritual forces. Yosef envisioned having not only economic and political greatness, but spiritual greatness as well. The kesones passim, the multi-colored coat, represents these multiple facets Yosef dreamed of. Could these two very different ideals, spiritual as well as material/political greateness, be combined in one person, in one people? Yosef challenged his brothers to believe they could.

It is tempting to read into the Rav’s portrayal of Yosef an autobiographical portrayal of his own mission. The Rav saw that rebuilding Orthodoxy on post-war modern American soil required a different outlook than what worked in Lita, in Poland, in the Russian Pale. It was the kesones passim of the Rav’s personality, his multi-faceted intellectual greatness, which gave the Rav the tools to address the concerns of the new face of American Jewry in a way that few others could. The Rav had his detractors. His “brothers,” other Roshei Yeshiva and gedolim, questioned his dreams. The Rav said that we know that Providence sided with Yosef in the dispute with his brothers. I think we can say that the evidence of bnei Torah committed to the ideology the Rav taught shows that Providence has affirmed the value of his dreams as well.

the role of nevuah in the eyes of a Brisker

I did a post last week based on a diyuk of R' Soloveitchik in a Rambam, and it dawned on me that in all the time I've been writing this blog I don't think I ever made a concentrated attempt to focus and review the Rav's torah. Maybe it is time to do so. I never heard shiur from the Rav, but you can glean a lot from what has been printed. I have to see if I can make the effort while being crushed at work with other stuff.

The pieces in Shiurim l'Zecher Aba Mori are interesting because, while the shiurim are oriented towards halacha/lomdus, the Rav develops and dwells on certain philosophical ideas that emerge directly from the halachic discussion at hand. Examples: ideas on the meaning of Shabbos emerge from the shiur on kiddush, ideas about teshuvah can be found in the shiur on mechikas Hashem, etc. This element is completely absent from the writings of R' Chaim or the Brisker Rav. I am not sure if the Rav paid more attention to philosophical themes because of the venue (a public lecture is different than a shiur given to close talmidim ) or whether it was more generally part of his thinking process.

These philosophical digressions and shadings are interesting because the Rav follows (obviously) the Brisker tradition of generally eschewing both mysticism and mussar/machshava. The universe of Brisk is defined entirely by the boundaries of the "four cubits of halacha." Perhaps Halakhic Man and Halakhic Mind should be read as the Rav's attempt to integrate his own philosophical quest and interests into these self-imposed boundaries. One passage from Shiurim l'Zecher Aba Mori (vol 2 page 173, excuse my rough translation) struck me as especially illustrative of this narrow Brisker focus:

I have always been troubled by the role and position of the prophet. On the one hand, we rule that a navi is prohibited from introducing innovation in halacha, from adding or detracting "even the crown of a letter yud;" on the other hand, Hashem communicated with the nevi'im, they prophesied, and their prophecy was written for all future generations. What purpose did their prophecy serve, given that they could introduce no halachic chiddush? True, they rebuked the nation, and to give rebuke is certainly one of the reasons prophets were sent. But still, I am troubled by the notion that their message should be completely devoid of halachic content.

The Rav simply could not fathom that there could be a "cheftza" of the dvar Hashem seperate from the narrow universe of halacha. I read this to my son and he was dumbstruck. Kushya m'ikara leisa if you have not bought into the world of Brisk. My wife reminded me that the gemara itself is suggestive of a similar idea -- Chazal tell us that had the Jewish people not sinned, they would only have needed the five books of chumash and sefer Yehoshua (to know the boundaries of Eretz Yisrael). In an ideal world all that exists is halacha.

The Rav goes on in that shiur to answer his question by saying that indeed there is halachic content to the words of navi. A person has an obligation to imitate G-d. The nevi'im teach us G-d's midos so we can fulfill our halachic obligation of modeling our behavior accordingly. Rather than acknowledge a universe outside the narrow world of halacha, the Rav reduces that outside universe to fit into the four amos of halacha. Just as the Chazon Ish in Emunah u'Bitachon erased the separation between mussar and halacha by teaching that ethics is compltely defined by the world of isur v'heter (i.e. there can be no such thing as an ethical wrong which is permitted, or an ethical good which is prohibited -- halacha is the arbiter of just/good), the Rav here reduces all mussar and ethics to kiyumim that fit into his narrow halachic universe.

Some will definitely find the focus of Brisk is too narrow, and their souls will yearn for some poetry to go with the prose. For others, the beauty of the rigor and analysis of Brisker torah forms its own form of poetry.

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.

who made the takanah to daven?

This came up for discussion in the comments to the previous post, but since not everyone reads the comments, I’ll post it:

The gemara (Brachos 26b) debates whether tefilos avos tiknum – shacharis was instituted by Avraham, mincha by Yitzchak, ma’ariv by Ya’akov – or whether tefilos k'neged korbanos, tefilah corresponds to the korbanos of the tamid shel shachar, tamid shel bein ha’arbayim, and the burning of the leftover meat. Meaning, explains Rashi, that tefilos were instituted by the Anshei Knesses haGedolah to correspond to these korbanos.

The Rambam in Hil Melachim (ch 9) gives us a history of mitzvos. He enumerates the six commandments given to Adam, the mitzvos given to Noach, and continues with other mitzvos that were practiced by the Avos, among them the fact that Avraham davened shacharis, Yitzchak davened mincha, etc. It sounds like the Rambam subscribes to the view that tefilos were instituted by the Avos.

Yet, the Rambam in Hil Tefilia (ch 1) writes that our tefilos were composed by the Anshei Knesses haGedolah. The times for tefilah were established by the Anshei Knesses haGedolah. Here the Rambam sounds like he subscribes to the view that tefilos k’neged korbanos, i.e. insitutued by AnK"G.

How can the Rambam quote both opposing views in the gemara at the same time?

Stay tuned for an answer Rav Soloveitchik gave. Until then, think about it : )