The gemara has a hava amina that we only apply this rule to dinim derabanan, but ultimately, rejects this position. Whether the sin being transgressed is dioraysa or drabanan, better to let someone sin unintentionally then rebuke them and lead them to sin bimeizid.
The Ran, however, adds an important caveat (cited in shulchan aruch orach chaim 608):
בכל דבר איסור (ה) אמרינן: מוטב שיהיו שוגגין ולא יהיו מזידין; * ודוקא (ו) שאינו מפורש בתורה, אע"פ שהוא דאורייתא; אבל אם מפורש בתורה, * (ז) מוחין בידן (ר"ן דביצה ורא"ש בשם העיטור
While the gemara says that we apply the principle of mutav... even to dinin dioraysa, thats only true for those dinim which chazal darshened using the yud gimmel middos. The principle does not apply, however, to a din which is mefurash bakra.
This is very difficult to understand, for several reasons. First, why does the logic of the principle of mutav not apply to dinim that are mefurash bakra? Shouldn't we still say that it is better to let the violator transgress bishogeg and therefore to not rebuke him and thereby lead him to transgress intentionally? What is the difference whether the din is mefurash bakra or not?
The Mishna Berura has a very dachuk pshat in this:
שאינו מפורש בתורה - ר"ל [ו] דאז אנו יכולין לתלות ששוגגין ומוטעין הם בזה ומה שלא ישמעו לנו מה שנאמר להם שהוא אסור מחמת דקיל להו הדבר ולכן אמרינן בזה מוטב שיהיו שוגגין וכו' אבל בדבר המפורש בתורה והם עוברין ע"ז [ז] בודאי אינם שוגגין ולא שייך בהו לומר מוטב שיהיו שוגגין [ח] ומחינן בהו וענשינן להו עד דפרשי:
Its not worth wasting time/ space to explain why this is obviously not the pshat in the rema / ran.
The emes, kayadua, lies in the explanation of the vilna gaon:
דמה שאינו מפורש בתורה קרי' דרבנן ועי"ד סי' רל"ט.
The Ran is coming off of the hava amina of the gemara. Originally, we thought mutav should not apply to any din dioraysa, whether it comes from a derasha or an explicit pasuk. The gemara rejects that - we apply mutav even to dinim that come from derashos, because in a sense, those dinim are also derabanan! But even limaskana, we do not apply mutav to a din that is a "full-fledged dioraysa" - namely, any din that is mefurash bakra.
Thus, we don't really have a question anymore on the ran - our question is now on the gemara: why do we only apply mutav to dinim derabanan and not to dinim dioraysa?
The bigger question is, how do we understand this chiddush of the gra? Why is a din that comes from a derasha, despite the fact that it is a din deoraysa, "nikra drabanan" ?
The Gra cites as support to this chiddush another chiddush of the ran in nedarim 8a. We know there is a principle that a shevua cannot take effect on something which one is already mushba vi-omed alav m-har sinai" - I cannot swear to do or to not do a mitzvah because I am already bound by an oath from har sinai on all the mitzvos. Hence, no subsequent shevuah can be chal. The Ran, in a tremendous chiddush, limits this principle to dinim that are mefurash bakra. A din from a derasha, despite its being "deoraysa", does not have the status of mushba vi-omed mehar sinai and therefore a shevuah can be chal on such a din. Again, why? If the din is deoraysa, then it was included in the oath to keep the torah at har sinai, and if not, then why do we call such a din a din deoraysa? Where does this middle ground come from?
The answer lies in a maharal in this week's parsha, which is what brings this topic up. The Gemara records that Moshe gave bnei yisrael an extra day to prepare for mattan torah "midaato". The gemara then goes on to find a derasha to support Moshe's reasoning. Tosfos asks, if there was a derasha, then it wasn't midaato - it was a din deoraysa!
The maharal explains that it is no contradiction for a din to come from a derasha gemura and yet be called "midaato" shel moshe. After all, if a din is a din deoraysa, why would Hashem put it in derasha form and not just write it out explicitly?
I quote:
והתוספות (שם ד"ה היום) פירשו דהך דרשה דכתיב "היום ומחר" לאו דרשה גמורה, שאם דרשה גמורה - לא הוסיף משה מדעתו. ולפי דבריהם לא נקרא 'מדעתו' עד שיהיה כולו מדעתו. ולא ידעתי ליישב 'מאי דריש' דקאמר, הא מדעתו הוסיף, ומאי שואל תלמודא מאי דרשא. ועוד, אם זה דרשה לאו גמורה, למה הוסיף משה יום אחד. וכל זה מפני שהוקשה לתוספות דממה נפשך, אם דברי תורה הוא הדרש שדרש "היום ומחר" - לא הוסיף משה מדעתו, ואם לאו דברי תורה הוא - אם כן אינו נרמז בתורה. וכל זה פלא בעיני
כי נראה לי כל הדרשות שדרשו חכמים כלם הם מן התורה, ולא שהם גוף התורה, רק הם יוצאים מן התורה. דמיון זה, הבנאי בונה בית והשלימו, והניח מקום להעמיד שם דברים הצריכים אל הבית. ובא אחר כך חכם אחד ומתבונן בבית למה בנה הבית בצורה זאת, רק להוסיף דבר זה, ועוד בנאו בצורה זאת - להוסיף דבר זה. הנה כל התוספות הוסיף האיש החכם, אבל הוא לקח אותם מבנין הבית. ובשביל זה כאשר הוסיף אותו החכם אותן הדברים - בשביל זה לא יאמר שהם מבנין הבית, רק מה שהוסיף החכם בהתבוננות הבית. ולפעמים החכם מבאר ומפרש איזה דבר נקרא בית ואיזה חדר, ואין זה תוספת, רק פירוש וביאור. כך הוא התורה, ניתנה בלא תוספות ובלא מגרעת, והניחה מקום לחכמים לבנות, והם הרמזים בתורה. ומכל מקום מאחר שלא כתב זה בפירוש, כאילו אמרה תורה אתם החכמים יש לכם במקום הזה להוסיף, והוא דעתכם, אבל אין כל כך דבר פשוט [ו] הכרחי כמו דעת בתורה, שזה החלוק בין הדברים שהם אסמכתא, שאין כל כך הכרחי, כמו דברי תורה.
אך עתה עמדו דרשנים דורשים דברים אשר לא כן, כל העולה על רוחם ודעתם, ואין ספק אלי שהתורה חוגרת שק עליהם לפרש התורה כרצונם, וזהו מעשה האומות שמפרשים כרצונם, ובזה האמת נעדרת תחת אשר נקראת "תורת אמת" (מלאכי ב, ו).
If you push someone into a corner and ask them, "did G-d directly command us to keep dinim that come from derashos" - the answer is no. Hence, we are not mushba vi-omed mehar sinai on such dinim, and chazal have the right to waive the mitzvah of tochacha on such dinim when we apply the sevara of mutav.
Nonetheless, they are considered binding, and on the level of deoraysa. Hashem wants our input into the torah, for us to be partners with hashem in understanding what the torah is all about and thereby extrapolating new dinim which reflect ratzon hatorah.
It is telling that the source for this idea is Moshe's delaying of mattan torah - the torah could only be given after this concept was built in as a foundation for understanding everything that would follow. Torah cannot be understood as a dry list of commands. It must be understood as an organic living document that commands more than explicitly stated - we must look beyond the letter of the law and understand what is truly being asked of us.
Good shabbos!
P.S. I didn't really explain in detail what ends up happening with mutav... and why we only apply that sevara to dinim that are not mefurash bakra. The explanation I hinted at seems to conflict with something we have discussed earlier (link) which I do not have time right now to get into.
Dear Sar Hamashkim,
ReplyDeleteBy the way, who is your Avraham?
Anyway, the famous opinion of Rashi's teachers about afkainhu and the Rambam in Sefer Hamitzvot and in Ishut both seem to support the idea that Dirabanan refers to things with Rabbinic origin, not only Rabbinic authority. Rav Moshe Stav, Rebbi in KBY, said that the pshat in the odd Gemara in Brachot which attributes many things to Sinai is really addressing this point- although the origin is Rabbinic, because the drashot are using the text & tools of Divine origin, the nature of the extrapolated rule is Divine.
I'm not sure how you've answered the question. Unless rules stated explicitly in the Torah are seen as more stringent, why should the Gra's statement make a difference. Isn't he just explaining how the Ran and Ittur fit into the Gemara which concludes to only say it by Rabbinic rules? I thought that other places in Shas only say it by Rabbinic laws. Why would they have to fit with the Gemaras hava amina?
Otherwise, a very enlightening and empowering post!
Best regards,
Baal Hachalomos
Given your name for me, you should be asking who my Yosef is.
DeleteI was thinking about the tie into kiddushei kesef. There the lashon harambam is "divrei sofrim" so its not exactly the same thing. I also think this is a bigger chiddush than R Stav's explanation based on the rambams hakdamah to peirush hamishnayos of the gemara that everything is from sinai - here we have nafka minahs lihalacha that we treat what we normally would have assumed is a full fledged din dioraysa as a din drabanan. Maybe this chiddush is just contained in that idea and I just didn't understand that when I heard it from R Stav.
I was not clear about the gemara in beitzah and mutav. The Gra is not fitting the ran into other gemaras which conclude to only say mutav by drabanans - the ran makes note of such gemaras and rejects them, saying he prefers to pasken the ikkar sugya in beitzah. The gra is being mekarev the maskana to the hava amina - we don't like when the gemara makes radical shifts, and prefer to -- as much as we can -- bring the hava amina and maskana as close as possible. Thus, the ran says that the hava amina wasn't rejected entirely - while we do say mutav by dioraysas, thats only true if they are "nikra drabanan." we do not say mutav for a full fledged dioraysa.
Whats the difference? Here's where I think this fits very nicely into the mehalech. Mitzad echad, dinim from derashos are just as chammur as full fledged dioraysas -- hashem wants us to keep them, and thats mechayev. But on the other hand. there exists in dinim from derashos a greater flexibility. As we explained, these dinim represent the organic, living part of torah - almost the spirit of the law. While in normal circumstances, the spirit of the law is binding just as much as the law itself, with the sevara of mutav, even the spirit of the law no longer mandates following those laws anymore! So laws that are gufei torah -- part of the letter of the law, we must rebuke over them - we cannot apply our own sevara of mutav... to limit such laws. But a law that comes from a derasha - from the spirit of the law - is bound much more by sevara and ideals such as mutav. I think this is a very nice pshat, though I'm not so sure I explained it clearly.
Kol Tuv
E.S.
If you notice my self-given title and remembered some Tanach, you'd know who I think your Yosef is. Its very presumptuous, almost denigrating, but I think in this anonymous world it can garner a laugh without being too offensive.
ReplyDeleteI was referring also to the Rambam in Shoresh 1 (I believe) who calls dinim learned from derashot "dirabanan". I know its a translation, but I'm pretty sure the word is used in the Arabic as well-I'll have to check the Kafih edition to make sure.
I think the Beis Yosef says that a safek about a din learned from a derasha would be derabanan, so likula. Also Rashi's teachers definitely used the term derabanan.
If you say like the Nesivos (although my Rebbeim said this is untenable) that there is no shogeg on dinim derabanan, then mutav works out well-he's not doing anything wrong and you will misafek make him do an issur. Not sure if even the Nesivos would extend to derashos. I'll keep my eye out for this chiluk and send any more mekorot your way.
Baal Hachalomos
Fair enough Yosef.
DeleteIts shoresh sheni - I don't know why the gra didn't quote it, which is why I hesitated to bring it up. And you are right that rashi quotes his rebbeim as sayin kiddushei kesef is drabanan. I had always thought there was a different pshat there, not that they meant it was dioraysa, but maybe.
Do you know where that beis yosef is? as always, thank you for your comments and mekoros.
I guess Yosef is better than Baal.
ReplyDeleteFirst of all, I think the "dachuk" pshat from the mishne brura is actually a Tshuvos Harashba.
Secondly, check out the Geonim in Rabbeinu Chananel in Baba Basra when Kol dimikadesh comes up.
Third, see the introduction to Hilchot Treifot from the Prim Megadim. Towards the beginning, he discusses whether the Rambam holds that a safek on a din from a drasha is likula or lichumra. Its mashma from Rambam its likula.
Finally, the Nimukei Yosef in Nedarim applies a Heim Amru-esque rule to the opinion of Rabbeinu Tam by Toch Kedai Dibur by nedarim.
P.s. this may touch on the Taz in a few places about Rabbis not being oker something mefurash bikra, because it allows too much frivolity and misconceptions about changing torah.
What do you think?
Sincerely,
Baal Hachalomos
Dear Sar Hamashkim,
ReplyDeleteA slightly more sourced post:
The Darchei Moshe says in O"ch 608 (quoted by the levushei srad on the page in shulchan aruch) that the reason why mutav does not apply to dinim mefurashim bekra is that "deha vadai heim shogegim". He explicitly says like the Mishne Brurah's explanation of the Ran, and he seems to be quoting the Rosh.
If you had quoted the whole Gra, you'd see that his point is to explain the girsa of the Geonim which did not have "v'lo hi..." in Beitzah, indicating it was a later addition. He's trying to explain how the din of applying mutav to d'oraysas doesn't contradict the words of the gemara which say only by derabanan (in their girsa). Thus he explains how derabanan can mean things not mefurashim bekra. He sees that as the shulchan aruchs intention in hilchos shabbos 365/6 where he says mutav applies because its derabanan-that the shulchan aruch is saying the application to derashot can even apply in that Girsa.
His quotes earlier in Hilchot Nedarim are to the explanation of the Ran that you mentioned about mushba v'omed mihar sinai.
He is just explaining how the din fits with the girsa of Geonim, NOT giving an alternative explanation. The pashtus is like the Rema quotes from the Rosh-and the next piece of Rema discusses effectiveness of Tochacha. It seems like the issue of mutav is one of doubtful efficacy, so if they're vadai shogegim they'll listen, but if not, who knows if they'll listen, and this will cause a more severe sin! That's why its coupled with other rules of efficacy of rebuke.
Another interesting source: tshuvot harashba chelek 1 siman 1185 brings from Rav acha (Gaon): the mishna in kiddushin brings a machloket tannaim whether a slave needs a get when going out bc of shein v'ayin. The machri'im in the mishna say that by shen v'ayin which are mefurashim bikra, one goes out without a get; for the roshei averaim which are from medrash chachamim (drasha), you need a get. Rav acha compares requiring a get by drashot to requiring a get when getting married with witnesses who are Rabbinically invalid. The Rashba protests that derashot are d'orayta, but its quite clear that Rav Acha treated them like Derabanan (in some sense). Its hard exactly to pinpoint what elements of dirabanan they have and what are d'orayta.
The rashba (and rabbeinu tam) say that when something is mefurash bikra, there is no chashash the former master will say "avdi ata", which is the reason for ever requiring a get in these cases. He specifically holds that medrash chachamim is d'orayta.
Baal Hachalomos
You are correct that the darkei moshe is in line with the mishna berura.
ReplyDeleteI also did see the first part of the gra where he quotes the girsas hageonim. I still don't believe he can be saying what you claim he is saying for the reason I mentioned above - the gra is clearly working in the ran, and the ran explicitly rejects the girsa that leaves off with only saying mutav by a drabanan.
That being the case, I stand by the possibility that the gra is offering a new pshat in why we say mutav by drashos, but not by dinim that are mefurash bakra.
I cant argue with the rama or the rashba, but I really don't get their pshat at all. I don't know how they are so sure that by a din that is mefurash bakra the person is not a shogeg. I see the parallel to gemaras like "zeil kari bei rav" but still, it is a stretch. I think the gra's chiddush is sufficient in explaining this din, as before.
The nimukei yosef is not really shayach to this - he is arguing about one local drasha in nedarim 86b "osah" whether it is a real drasha or just an asmachta.
that teshuvas harashba is a great find - shkoyach. I need to read it more carefully before commenting.
Dear Sar Hamashkim,
ReplyDeleteFirst of all, if you see the other Gra's on the simanim he was quoting, its quite clear, in my opinion, that he thinks the Girsa of the Geonim is ikar. I think its even quite clear in that Gra, but apparently you disagree.
in Horayot, there is a requirement that the law Beis Din rules on incorrectly cannot be one which the Tzidukim agree to. The reason is that if they rule against something mefurash bikra (or an obvious popular drasha-see tosafos harosh in the sugya), the people are expected to know the ruling is wrong and not follow it. Any shegaga done is purely on the head of the performer.
We see from there the expectation that all Jews know Torah Shebichsav. How far are we! I think zil karei bei rav is a pejorative.
All the best,
Baal Hachalomos
To the Sar,
ReplyDeleteAnother thing to add to the list - the Ran in Yoma quoted by the Kesef Mishne and Beis Yosef in 611 says that all 5 inuyim on Yom Kippur are asur midioraysa, but because they come from a drasha, masran hakasuv lichachamim to decide what type of inuy (ta'anug) is asur and what (tzorech) is mutar. He attributes this to the Rambam as well. The Bach (there) says that this pshat is the reason why the Rambam, although holding it is d'oraysa, says that one only receives makas mardus, because it comes from a drasha.
What is interesting here is that the Bach says one should be machmir that it is d'oraysa, so it is mashma that there is some chumra in being from drasha as opposed to a gezeira derabanan. The mishne brura says that the chumra is that one will be machmir in a case of safek. Here it seems that a safek in a din learned from a drasha would be treated as a a safek d'oraysa and go l'chumra.
Baal Hachalomos