Feature Tidbit The Elastic Clause Let's take close look at a very special pair of mitzvot in Parshat Sho'f'tim. The Torah commands us to do that which our Sages command us to do, and forbids us from veering from what they tell us, neither to the right nor to the left. What pronouncements of the Sages are considered subject to these two mitzvot, and what Sages are considered to be in the scope of these mitzvot? First and foremost, these mitzvot apply to the transmission of the Oral Torah by the Sanhedrin of laws and procedures that are HALACHA L'MOSHE MISINAI and to the Sanhedrin's definitions of Written Torah mitzvot. (That is definition, not yet legislation, extension, etc.) The Mitzva of Nisuch HaMayim (libation of water onSukkot) is a D'Oraita (Torah Law) that is not written in the Chumash. Its observance falls under the domain of the mitzva-pair in Sho'f'tim that we are talking about. That T'filin are black is also part of them. When Chazal teach us that the prohibition of G'DI BACHALEIV IMO (meat in milk) applies to the meat of cow, goat, and sheep, in the milk of cow, goat, and sheep, even if there is no relationship between the source of the meat and the source of the milk, and that cooking, eating that which was cooked, and deriving benefit from that which was cooked is included in the Torah's prohibition, they are not legislating laws, but are transmitting the Oral Law to us. Violations of that which is not written in the Torah, of that which we would not know without our Sages telling us, are included in LO TASUR (not to deviate...). So far, there is agreement among authorities on the above. What about the Rabbinic prohibition of chicken and milk? Or the prohibition of eating a salami and cheese sandwich, for which no cooking was involved? They are Rabbinic protective measures which Rambam also considers part of the mitzva-pair, and Ramban does not.Ramban sees an inherent contradiction the classifying of Rabbinic law as Torah law, by the inclusion in the domain of the mitzva-pair. Ramban does consider the requirement of compliance with Rabbinic law to be in the spirit of TA'ASEH and LO TASUR. But not more. On the question of Purim & Chanuka (and the like), where the Sages were not protecting existing mitzvot by their legislation, but essentially were creating something new - Rambam puts those Rabbinic mitzvot under TA'ASEH & LO TASUR, giving them Torah-like flavor (see MITZVA WATCH in the ALIYA-BY-ALIYA for more on this). Ramban is adamant about considering them pure D'RABBANAN, as says that our requirement to follow them flows from a different pasuk in the Torah (not as a source, but as an idea) - "Ask your father and he will tell you, your elders, and they will guide you." As to Rabbinic enactments, decrees, and the like - Rambam sees them as part of LO TASUR and the Ramban definitely does not. Rashi, by the way, matches Rambam, except for Minhagim, which the Rambam also includes under LO TASUR, and Rashi does not. A challenge of Ramban to Rambam's approach is that all D'Rabbanans become, in essence, D'Oraita, yet the two categories of halacha are treated very differently. If handling muktza on Shabbat, and making brachot, a fasting on Tish'a b'Av are all equivalent to Torah law, then how come a whole set of leniencies apply to themand not to "real" Torah law. Rabbi Yaakov Moshe Poupko answers in defense of Rambam's position with a nice analogy. A father requests a can of soda from his son. The son is obligated by Torah law to fulfill his father's request. Let's say that at a certain point, the son does not remember if he actually got his father the soda. He is then requiredby the rule - Doubt in a Torah Law must be handled strictly - to get a soda for his father. But let's say that the father asks his son for a can of soda and adds that if he gets distracted at any point and is not sure he got the soda or not, then he should not get one. In this case, it is still a Torah command for the child to satisfy his father's request, but a case of doubt is handled differently. Still a Torah obligation, but a doubt is resolved by NOT getting a soda. This is what our Sages did. They gave us additional things to do and not to do. Those things (in Rambam's view) became Torah law (sort of), but they built in leniencies that don't exist with Torah Law that comes straight from the Torah, Written and/or Oral. What about the Shulchan Aruch, the Mishna B'rura, etc. Is their halachic authority included in the Torah's mitzva-pair that speaks about "the judges who shall be in those days"? And what about your Rav to whom you ask a halachic question? Must you listen to the p'sak you receive? in most cases, YES. Is it a mitzva/prohibition of TA'ASEH and LO TASUR. Not directly. It is within the SPIRIT of those mitzvot that we are to follow recent and contemporary p'sak halacha. But the mitzva-pair in the Torah refers to the undisputed halachic authority for Klal Yisrael - the Sanhedrin. Until we merit the restoration of Sanhedrin, we do our best with halachic sources, Responsa, the rulings of recognized poskim, and our LOR (Local Orthodox Rabbi). The mitzvot of Ta'aseh and Lo Tasur inspire us and guide us to commit ourselves to the "Package Deal" of Torah Law, halacha, and Tradition, to be able to live a Torah-true way of life. [The Sho'f'tim Homepage]
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