[Avodah] derabban

[Eli Turkel via Avodah]

> R' Meir Simcha in the Meshech Chochma on Shoftim has a fascinating
> explanation of the Rambam. The issur of lo tasur is an issur to rebel
> against the Chahamim, to not listen to them. Given that, we understand
> why sefeka d'rabbanan lekula because the act of doing the mitzva is not
> the main point, the point is listening to the chachamim, once it is a
> safek, there is no need to do the act because it is not so important .

R. Avraham pointed out that problem of the authority of the rabbis is
a basic problem and not just a difficulty with a Rambam and Ramban. The
better the source of their authority the more it looks like a de-oraisa.
The more one goes away from a de-oraisa the weaker their authority. His
major answer is that every time there is a dichotomy the only way out is
to find a third middle path. In general this replaces a binary decision
by a continuum path.

His standard example is the definition of bald. Someone who has one
hair is obviously bald. It is also obvious that adding one hair can't
change someone from bald to not bald. The conclusion by induction is
that every one is bald. The answer to the riddle that the dichotomy of
bald not-bald is not correct. Adding one more hair makes someone less
bald. It is a continuum and not a binary.

R Avraham (RMA) brought the Nesivos that also (or more correctly first)
states that there are two types of violating a derabbanan. One is to
rebel against the concept of derabbanan and that is lo tasur according to
the Rambam (he also hinted that in the next shiur the Ramban will agree
with the Rambam). OTOH if one violates the rabbanan rule "le-teavon"
then it is a strictly rabbinical rule.

Hence, Nesivot concludes that if one one violates a rabbanan "be-shogeg"
one does not need kaparah. In essence he has done nothing wrong.
The lo-tasur is only for rebellion and he has not rebelled. Note that
practically there can't be rebellion and safek.

In modern terms the netivot says that all rabbanan decrees are gavra
and not cheftza. Eating meat and milk (cooked together) the mixture is
prohibited. Eating chicken and milk cooked together there is nothing
wrong with the mixture. It is rebelling against the chachamim to eat it
on purpose (lo tasur) or rabbinic if eaten le-teavon.

RMA pointed out that this again comes back to the problem of why to
listen to the rabbis

Note that the Rogachover holds that every mitzvat aseh is only gavra
and not cheftza A second explanation was from the Rogatchover: The
prohibition from the Torah only demands that we accept the authority
of the rabbis. If someone accepts that the rabbis can make decrees but
decides that nevertheless he can't/won't listen then there is no Torah
prohibition. This leaves open the question how is it possible that one
can accept the authority of the rabbis but still disagree with them. It
seems to bring back the original question of what good is their authority
if one need not listen,

To explain this RMA brought a Tzlach. The Nodah BeYehuda states that
sevara yields a de-oraisa only if their is a connecting pasuk. Thus
killing someone to save oneself is a deoraisa based on sevara (everyones
blood is equal). However when sevara creates a new category then it is
only derabbanan. The classic example is berachot - eating without a bracha
is LIKE stealing. So the rabbis based on this sevara required berachot.
However, it is only a derabbanan since one is not actually stealing.
(answers a question of the Pnei Yehoshua). Similarly for something to
be a Torah law there has to be both a commandment and a content.

In order for something to be a de-oraisa it needs BOTH a source and
content. So violating shabbat is one prohibition even though there are
many pesukim since the content is the same. OTOH "lav she-be-chlalot"
has only one pasuk but many contents and so also there is no punishment.

According to Rambam anything no explicit in the Torah has no punishment
when learned from derashot. So the prohibition of "Lo Tasur" gives a
generalization that there is a commandment to listen to the rabbis. The
rabbis applied to this to various cases but this is no longer explicit
in the pasuk and so no longer a de-oraisa. This is different than "lifne
iver" where giving bad advice is an example of the pasuk and so from
the Torah.

In summary there are 3 types of derashot
1) examples not explicit in the pasuk - clasical example is neder. The
Torah says one can't violate one's neder. Hoever the individual person
decides the specific application
2) Asmachta (some meforshim) - just a help to memory.
Ritva argues that some asmachtot are really the intention of the pasuk.
However since it is only hinted it is a rabbanan and not a deoraisa
i.e. there is content but no commandment.
3) Things learned indirectly from the pasuk there is a sevara (content)
but no commandment.

Finally RMA argues that finding a third/middle path is the only way
out and so Ramban has to agree with Rambam. The arguments are more
misunderstandings and semantics.

Another example is Avelut. Rambam states explicitly that ivisiting the
avel or making the kallah happy rabbinic. He the quotes the pasuk of
"ve-ahavta le-reacha komecha" . This eems to be self-contradictory. The
answer is the same as for "Lo Tasur". There is content but no explicit
commandment and so it is rabbinic even though hinted in the pasuk. Someone
who "loves" (not romantic) the Kallah but doesnt make her happy fulfills
the Torah obligation but not the rabbinic one. Someone who makes her
happy but doent "love" her fulfils the rabbinic command but not the
Torah obligation.

RMA then hinted to a wider application to general philosophical questions
where one has observations and generalizations. How is it possible
to generate a physical law (eg Maxwell's equations) when all we have
are a finite number of observations. In other words are mathematical
descriptions of nature inherent in nature or man-made. De-raisa
is like observations we only have what is explicit. Derabbanan are
generalizations. In both cases we need to find a middle/continuum path

Eli Turkel