[Avodah] second shoresh of sefer hamitzvot

[Eli Turkel via Avodah]

To stress this is a short (sort of) summary of an hour shiur plus a chapter
in R Avraham's book

continuation of difficulty of Rambam claiming that anything learned from 13
middot is derabban
previous shitot - Rambam rakes Rambam literally and asks many questions
Tashbetz - Rambam is discussing the origin not the content

RMS says that the Rambam repeats this several times especially in a teshuva
and so it hard not to take it literally.
As discussed before RMA distinguishes between a drasha marchiv (extends)
which only extends a known halacha which is deoraisa and a drasha yotzer
which creates a new halacha and is derabbanan
except if Chazal explicitly say otherwise according to Rambam. Rambam bases
this on "ein onshin min hadin" . While other rishonim limit this to
kal ve-chomer Rambam extends it to all 13 middot.

RMA  likened this to rules of logic which Aristotle formulated. However
people obviously used logical inferences before Aristotle. There are 2
types of logical rules. deduction really means that the conclusion was
always there (All people breathe, Socrates is a person, therefore Socrates
breathes)
Induction goes from details to the general and is really only an educated
guess

Other rishonim (eg Ran) also distinguish between drashot that extend an
existing halacha and one that creates a new halacha). However, Rambam is
the only one that connects it to becoming a derabannan.
example (only one he could find): in bigdei kohen the word "shesh" appears
6 times. The gemara learns a halacha from each one with the last being that
the material shesh is "meakev"
Rambam applies it also to "bad" like the gemara but it is not "me-akev".
Achronim struggle how Rambam uses part of the gemara drashot but not all of
them. Answer - most of the drashot are extensions and so apply from the
torah. However that "shesh" includes" "bad" reveals something new and so it
is not "me-akev". RMA feels the Ran would agree with this.

Safek for chumra or kulah?
RMA claims that not all rabbinical rules are treated equal. Rabbinical
rules based are halacha le-moshe-misinai (ie mesorah) are le-chumra since
this reveals something in the pasuk however a new rabbinical rule would be
le-kulah. So for a rabbanan to be lechumra we need two conditions 1) it
reveals a pasuk 2) there is a mesorah . One without the other we go
"le-kulah".

The Ramban asks that if rabbinic rules are learned from "lo tasur" why do
we go le-kulah. The answer is that the pasuk only teaches that one must
listen to the rabbis (no rebellion). However a safek on a rabbinical level
is not a rebellion and so one can go le-kulah.

De-Oraisa has content and commandment (eating pig is intrinsically
prohibited besides not listening to the commandment).
Halacha le-moshe misinai , divrei sofrim has commandment but not content
A drasha that creates something new (yotzer) has content but no commandment.
an example is to fear (et) G-d creates a new content to include talmidei
chachamim
In both cases it is derabbanan but safek is the chumrah.A gezerah of the
rabbis is le-kulah.
A drasha that just extends an existing halacha is a complete de-oraisa.






-- 
Eli Turkel
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