Two Opinions - Revelatory Laws - Rambam and Ramban -

Rambam explains in his introduction to his Sefer Hamitzvot that he plans to write a definitive work on all the Laws of the Torah that will include all the rulings in Mishna, Talmud, Sifrei, Sifra and Tosefta as well as what the later Geonim have extracted (Hotzi’u), clarified and explained. It will cover what is forbidden and permissible, unclean and clean, Passul and Kasher, when one is guilty or innocent, pays or does not, swears or does not. It will be so all encompassing that in addition to the written Law no other book will be necessary for one to know everything in the whole Torah whether De’oraitot or Derabanans (Biblical or Rabbinic Law). To make sure that he does not skip anything he proposes to list all the Laws in the Torah in a systematic way. All related Laws will be listed together so that when he organizes a Halacha he will list at the beginning all the positive and negative commandments that relate to that particular Law. In fact the Mishne Torah is so organized and at the start of each series of halachot Rambam lists all the related commandments. For example at the beginning of Hilchot Shabbat he lists five Mitzvot, (1) to rest on the seventh day, (2) not to work, (3) not to punish on Shabbat, (4) not to go outside the boundaries on Shabbat and (5) to make the day holy by remembering it. He does not list the 39 Melachot as to him they are the practical aspects of #2 above which is the Mitzvah.

To Rambam listing the Mitzvot is therefore very important as an organizing tool but he also sees it as a key in understanding how our laws have evolved as we will see later. By the time Rambam started this work there was already a whole literature addressing this listing, the most extensive and detailed being the Sefer Halachot Gedolot (generally referred to as Behag)by Rabbi Simeon Kayyara (Hebrew: שמעון קיירא) (was a Jewish-Babylonian Halachist of the first half of the 9th century)(courtesy Answers.com). Rambam felt that this work was incorrect containing many mistakes and before starting his own listing, he put together fourteen Shorashim or literally roots, basic rules, that describe the conditions required for Mitzvot to be listed.

The first Shoresh (rule) addresses the fact that Behag lists the lighting of the candles on Hanukkah, reading the Megilah, 100 daily Berachot, consoling the bereaved, visiting the sick, burying the dead, clothing the poor, calculating the seasons and the 18 days one finishes Halel. The Mitzvot that make up the 613 should be only those given at Sinai and may not include Takanot made by the later Rabbis. Rambam takes the number 613 very seriously and literally. The 613 are composed of those Mitzvot that we received at Sinai with their explanations, the ones I defined in the first category in my previous post. When addressing Halel Rambam asks how can one say that Halel was given at Sinai when it is made up of psalms written by David several centuries later? How could one imagine that over a thousand years later, during the second Temple, such and such will happen in our interaction with the Greeks and Hanukah will be established? Rambam considers this to be absurd. He therefore argues that these rules belong in a separate category (#5 in my earlier post) and have no place in the basic listing of Mitzvot.

However Rambam makes an interesting point. He says that the authority the Rabbis have in making these new Takanot are based on the Mitzvah of Lo Tassur. The Torah tells us that we may not stray from whatever each Beit Din establishes. That authority and ruling is enough to allow us to say in the blessings that we make on the Mitzvah “asher kideshanu bemitzvotav vetzivanu”, “Who made us holy with His Mitzvot and ordered us to do such and such”. The Rabbis having established a new Mitzvah, it becomes binding and obligates us to keep it based on Lo Tassur. The same applies to Megilah which was established by prophets. To Rambam the prophet’s authority in establishing a Mitzvah has nothing to do with prophecy. It is based totally on the prophet’s rabbinic authority as a member of a Beit Din. According to Rambam prophecy cannot alter the torah. The prophecy that was required to give the Torah was unique to Moshe Rabbeinu and is what makes the Torah immutable. In fact a prophet who proposes to add, alter or take away a Mitzvah is inherently a false prophet who deserves the death penalty. At the beginning of Mishne Torah Rambam again lists all 613 Mitzvot in a shorter version. At the end of the listing he makes the following comment:

ג כל אלו המצוות שנתחדשו--חייבין אנו לקבלם ולשומרם, שנאמר "לא תסור, מכל הדבר . . ." (ראה דברים יז,יא); ואינם תוספת על מצוות התורה. ועל מה הזהירה תורה "לא תוסף . . . ולא תגרע" (דברים יג,א)--שלא יהיה נביא רשאי לחדש דבר ולומר שהקדוש ברוך הוא ציווהו במצוה זו להוסיפה למצוות התורה, או לחסר אחת מאלו השש מאות ושלוש עשרה מצוות.
ד אבל אם הוסיפו בית דין עם נביא שיהיה באותו הזמן מצוה דרך תקנה, או דרך הוראה, או דרך גזירה--אין זו תוספת: שהרי לא אמרו שהקדוש ברוך הוא ציווה לעשות עירוב או לקרות המגילה בעונתה. ואילו אמרו כן, היו מוסיפין על התורה.
Paraphrasing: After listing all 613 Mitzvot and a smattering of new ones by prophets and sages such as the reading of the Megilah and the lighting of the Hanukah candles, Rambam addresses these later innovations. All these new Mitzvot are obligatory based on the rule of Lo Tassur and are not considered additions. What then does the prohibition of Lo Tossef and Lo Tigrah apply to? [Rambam is referring to the verse in Devarim 13:1 which exhorts us to listen to every Law without adding or subtracting any – in other words the Torah’s Laws are immutable]. It applies only when the prophet claims that he received this new law from God. However if the prophet or the sages of a time add a Mitzvah as a Takanah, as a ruling or a preventative measure, as long as they don’t say that God told them to make an Eruv or to read the Megilah at its proper time. If they do claim that God told them, it would be considered an addition and they would contravene the prohibition.

Here again we get another glimpse of Rambam’s understanding of Torah min Hashamayim. There is an immutable core that is transmitted from generation to generation from Sinai. One of those laws permits later Batei Din to make changes that are binding. However they must be clearly designated as rabbinic additions and not as revelatory Law. There was a unique and only revelation in all history; Moshe’s Torah – both written and Oral. It is very circumscribed and defined.

In his defense of Behag Ramban begins by questioning the seriousness of the number 613. He suggests it is just a Midrash and one should not feel too strongly restricted by it. He then engages in a lengthy discussion addressing each point Rambam makes against Behag. The most striking argument Ramban makes is in response to Rambam’s finding it absurd for a law established during the second temple to be seen as originating at Sinai. Ramban asks is it not true that the Torah text is full of predictions? Did not the rabbis find in the Torah allusions to Megilah? (Ramban himself in his commentary on the Torah interprets the two Tochachot, in Vaykra and Devarim, as alluding to the destruction of the first and second Temples). In Ramban’s words, “the Torah explains orders, predicts and alludes”. The Rabbis as they establish new laws go back to the text of the torah and interpret it. The Rabbis establish the rules based on how they read the Torah text. When they established Hanukah they indeed based it on their interpretation of the Sinaitic text. The current event confirmed the prediction in the Torah and only became understood now after it happened.

This latest argument brings into sharp contrast the two positions of Rambam and Ramban. While Rambam sees a core of immutable laws given at Sinai, and everything else that we do is either an extension or a new Takanah, Ramban sees a flexible text. He also accepts subsequent revelatory Laws. This difference between these two giants will become even more apparent when we address the second Shoresh.

More to come.