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The Power of the Rabbis to Override Torah Law (Yesh Koach B'Y'dei Chachamim L'Akor Davar Min HaTorah B'Shev V'Al Ta'aseh)

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Mar 16, 2005

The Power of the Rabbis to Override Torah Law (Yesh Koach B’Y’dei Chachamim L’Akor Davar Min HaTorah B’Shev V’Al Ta’aseh) Several places throughout Talmudic literature, we are told of the principle that the Rabbis have the ability to “uproot” directives from the Torah (Yevamot 89b-90b), in situations that are “passive” (shev v’al ta’aseh). The fact that the shofar is not blown when Rosh HaShanah falls out on shabbat, despite the Torah requiring it (Rosh HaShanah 29b; Megilah 4b; Sukkah 42b), is believed to be one example of this, as is the rabbinic dictate not to attach tzitzit to a garment when the result will be shatnez, although, again, the Torah requires that (Menachot 40b). The Turei Even (Megillah 5a) maintains that this step of overriding Torah law is only taken when there is a risk of violating a biblical prohibition, and not simply for the “good of the world”. However, this may be difficult to reconcile with some of the examples found in rishonim, such as Tosafot (Berakhot 16a s.v. v’chotem) citing this principle to explain how workers can abridge the biblical requirement of birkat hamazon [unless it is understood that the concern there is one of theft]. However, the Resp. B’er Chaim Mordechai (#47) interprets the Turei Even’s comments to mean that the instances where a sweeping, universal override of a mitvah was instituted were those where a prohibition was at risk. More localized instances are possible without meeting this standard. R. Elchanan Wasserman (Kovetz Ha’arot 69, and Kuntres Divrei Soferim in Kovetz Shiurim), in examining this concept, poses three interrelated questions. His first inquiry concerns the nature of the “uprooting” that is taking place. Is it the case, as the phrase implies, that the relevant biblical law is actually uprooted, removed from its obligation? Or, is it actually that the biblical law remains in place, but the Rabbis mandate that it should be ignored? This question would appear to correlate with the two perspectives in acharonim as to the scope of rabbinic law. On the one hand, some authorities (such as the Netivot HaMishpat, 234) believe that rabbinic mitzvot are distinguished from biblical mitzvot, in that the latter represent an inherent status in the object (issur cheftza) while rabbinic precepts, reflecting an instruction to the individual, do not (issurei gavra). Others, such as R. Yosef Engel (Atvan D’Orayta, 10) believe that rabbinical prohibitions can attain inherent status, citing midrashim that G-d agrees to the enactments of the Rabbis. That debate would parallel the positions in this issue: On the one hand, rabbinic directives might be addressed only to the individual, leaving the Torah’s commands unaffected; on the other, perhaps G-d agrees to the enactments, and the “uprooted” mitzvot no longer apply. Some sources indicate that the mitzvah is totally uprooted. Among these is the controversial position of Rabbeinu Yonah that when the Rabbis required nighttime k’riat shma to be recited before chatzot, they cancelled the possibility of reciting it afterward. Also, Tosafot (Sukkah 3a) suggest that when the Rabbis imposed additional regulations affecting a mitzvah, that mitzvah became valid only when the rabbinic regulations are observed. This is contrast with the view of the Ran (to Sukkah as well as to Pesachim, on the mishnah of “whoever does not recite these three things…” that appears in the Haggadah), that although the mitzvah is not fulfilled perfectly, the basic fulfillment of the biblical obligation is satisfied. {Some understood Tosafot’s position as limited to Sukkah; see D’var Avraham, II, 26:10, and K’nesset Avraham, 4:2:2). This issue is particularly relevant to mitvzot such as Kiddush and Birkat HaMazon, which are biblical obligations that have been expanded by rabbinic directive, and may thus be redefined by that action (see Pri Megadim’s Peticha HaKollelet 3:8; Migd’not Eliyahu, 27; Resp. Arugat HaBosem, O.C., 62). Another question affected by this is the issue of one who, in violation of rabbinic law, takes a lulav on the first day of Sukkot that falls on Shabbat; would he recite a “shehechiyanu” the next day? (See Resp. Even Pinah, O.C. 63; Shavei Tziyon, 18; Resp. Rivv’vot Ephraim, III, 391). R. Elchanan’s second question concerns the nature of the requirement of “passivity” (shev v’al ta’aseh) in this principle. It remains to be defined what this term refers to; is it a reference to passivity of behavior, or is it to categorization as positive or negative commandment? [This question is posed in at least two other contexts, as well: K’vod ha-briyot (human dignity), which the Talmud identifies as capable of overriding Torah law when it is shev v’al ta’aseh, and the limitation of 20% spending on mitzvot, which the Rama (O.C. 556) restricts to positive mitzvot as contrasted with negative ones]. Rishonim debate this position as well, with the Rashba, in at least three places, taking the position that the issue is categorization, not behavior. The third question R. Elchanan poses is concerning the reason that this principle was limited to situations of shev v’al ta’aseh. He offers two possible theories as to this distinction. One theory is that the ability of the rabbis to contradict the Torah, a drastic step, only goes so far, and active transgressions are beyond their reach. The second possibility is that since there is an intractable conflict between two principles, the Torah’s obligation and the Rabbi’s contradictory instruction (with the Torah’s endorsement), the safest approach is to act passively, and not blatantly offend either value. As R. Elchanan observes, these three questions are interconnected. If the biblical commandment is actually uprooted, it makes sense to say that such a significant development is limited in scope, and the defining delineation would correspond to categorization, rather than behavior, as commandments categorized as “negative” are assumed to be more severe (and thus would require even more power to be given to the Rabbis) than positive ones. Alternatively, if the biblical commandment is still in place, then presumably the reason for shev v’al ta’aseh is the concern of negotiating the conflict in the least offensive way possible, and thus the defining element is behavior, not categorization.

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