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Class Notes - Class #16

In mitzvah #440 we saw that all sacrifices must be brought at the Temple.  Someone who lives outside Israel might become obligated to bring a sacrifice.  Mitzvah #453 requires such a person to bring the sacrifice in the Temple.  Our author explains that this merits a special mitzvah because it is so inconvenient.  Ramban, however, does not consider this a separate mitzvah, but thinks it is just as aspect of the general requirement to bring all sacrifices at the Temple.

            Mitzvah #454 prohibits “adding to the Torah” and mitzvah #455 prohibits “subtracting from the Torah.”  These mitzvot apply to both the written and oral Torah. God’s Torah is exactly what it should be, and it does not need our improvements or revisions.

            According to Rambam these mitzvot require us to keep the level of obligation clear and precise.  Someone who presents an obligation as d’oraita that is really d’rabanan is adding to the Torah; someone who presents an obligation as d’rabanan that is really d’oraita is subtracting from the Torah.  Similarly, a scholar would violate this mitzvah by teaching that something forbidden is permitted. Presumably, teaching that one is required to do something, either d’oraita and d’rabanan, when one is not required to do that thing, would also be adding to the Torah.  One of our author’s major themes has been to teach us that close distinctions, like the difference between d’oraita and d’rabanan, can have wide implications.  We have seen how hard it is to be clear about what is d’oraita and what is d’rabanan.  Presumably, though, Rambam thinks that someone who really knows what is d’oraita and what is d’rabanan breaks this mitzvah by reversing them.

            Other authorities, with whom our author seems to agree, take a different approach. The prohibition on adding to the Torah only applies to positive mitzvot. These authorities explain the prohibition on adding to the Torah by way of examples. Someone who puts two t’fillin on one’s head or arm, who puts five texts into the t’filah shel rosh instead of four, or who takes two lulavim instead of one, adds to the Torah.  But someone who blows extra sounds on a shofar during Rosh haShannah or who takes up the lulav many times a day during Succot rather than just once a day does not violate this mitzvah. To make things more complicated, the author says one is not adding to the Torah by attaching an extra type of plant to a lulav, although that seems to be something specific to lulav.

Apparently, for some mitzvot, one may do the act that fulfills the mitzvah many times during the time designated to do that mitzvah.  But it is not easy to see the principle that creates these results.  Our author provides some conceptual context.

Understanding what is “adding to the Torah” is related to issues about the role of intent in doing mitzvot.  Consider the various types of intent one might have eating matzah on the first night of Passover.  Someone might eat matzah on the first night of Passover because he or she wants to fulfill the mitzvah.  Someone who is force-fed matzah on Passover is not acting with any intent at all, not even the intent to do the act of eating matzah. (That situation is hard to imagine, but the point is to understand the concept.) Someone might eat matzah on the first night of Passover because matzah is the only food available, so that person intends the act of eating matzah but does not particularly intend to fulfill the mitzvah of eating matzah. Someone might eat matzah acting on autopilot; I was wandering through the kitchen and thoughtlessly ate the matzah on the counter.  Someone might eat the matzah specifically intending not to fulfill the mitzvah of eating matzah. (There are other possibilities as well.  This is subtle stuff.)

The Talmud debates whether someone can fulfill a mitzvah without having the intent to do that mitzvah. If someone needs intent in order to fulfill a mitzvah, then people who were force-fed matzah or who ate matzah because that was what happened to be in the kitchen did not fulfill the mitzvah to eat matzah even though they did the act of eating matzah.  If someone does not need intent in order to fulfill a mitzvah, those people did fulfill the mitzvah even though that’s not why they ate the matzah. These examples oversimplify in that we have ignored some of the subtleties of what we mean by intent.

Each possibility has different implications. Our author’s approach to mitzvot emphasizes the role of mitzvot in helping us have the appropriate attitude toward God and in helping us develop proper character traits.  It is hard to see how either of those goals is accomplished if we do the actions that fulfill mitzvot without being mindful of what we are doing and why we are doing it.  But if mitzvot do require intent, it would be hard to know whether, when I have done the act required by the mitzvah, I have had the intent required to actually fulfill the mitzvah. Our author says that, according to the Talmud, in general mitzvot do not require intent.

The notion that mitzvot do not require intent has potential implications for the definition of “adding to the Torah.” Consider this possibility: if one does not need intent in order to fulfill a mitzvah, and if one can violate the prohibition on adding to the Torah by doing an act that would fulfill a certain mitzvah at a time when the person is not required to do that act, then a person who happens to do an act that would fulfill the mitzvah at some irrelevant time may be guilty of adding to the Torah.  So if I eat matzah on Purim, even without the intent to fulfill the mitzvah of eating matzah, I may be “adding to the Torah.”  That is a difficult result.

Some positive mitzvot are required only at specific times, and the author cites the Talmud, Rosh haShannah 28b, for the notion that someone who does the act of that mitzvah at some other time only “adds to the Torah” if the person intends to do the mitzvah.  This is reminiscent of Rambam’s approach, where I add to the Torah if I claim an act is required d’oraita when it is not.  Consider someone who decides to eat in a succah during Hanukah. Eating in a succah is a mitzvah during the holiday of Succot, not in midwinter.  If the person eating in the succah during Hanukah thinks he or she is doing a mitzvah, the person is adding to the Torah.  But if that person does not intend to do the mitzvah of dwelling in the succah, the person is not adding to the Torah, just being silly.  Similarly, if someone takes a lulav after the end of Succot and intends to do the mitzvah of lulav the person adds to the Torah, whereas if the person does not intend to do the mitzvah of lulav the person does not add to the Torah.

The author says someone can violate the prohibition on adding to the Torah by repeating an act that fulfills a mitzvah during the time designated to fulfill that mitzvah even if the person does not have intent to fulfill the mitzvah. He does not give an example. And apparently that does not apply to blowing the shofar several times on Rosh haShannah or taking a lulav several times on Succot.

In mitzvah #455 our author quotes the Talmud, Rosh haShannah 28b, for another example of violating these mitzvot.  We learned earlier that blood from sacrifices is splattered on the altar.  Different sacrifices require different splatter patterns: some sacrifices require one application of blood, and some require four applications of blood.  Now consider what to do if the blood of a one-application sacrifice gets mixed up with blood of a four-application sacrifice.  The cohen cannot possibly apply the mixed blood to the altar and get all the details right.  If the cohen applies the blood only once, he does not satisfy the requirement for the four-application sacrifice, and if he applies the blood four times he over-applies the blood of the one-application sacrifice.  Rabbi Eliezer instructs the cohen to do four applications, and Rabbi Yehoshua instructs the cohen to do one application.

Each rabbi explains his opinion in relation to the prohibitions on adding or subtracting from the Torah.  Rabbi Eliezer decides the cohen should do four applications because one application would be subtracting from the Torah.  Rabbi Yehoshua decides the cohen should do only one application because four applications would be adding to the Torah.  Our author says similar cases would also be subtracting from the Torah.

This example is more difficult than it looks.  The cohen in this case cannot do anything that will be entirely correct, but the cohen wants to apply the blood properly.  The cohen does not want to add blood applications to the sacrifice that only requires one, or subtract blood applications from the sacrifice that requires four.  When we accuse the cohen of adding or subtracting from the Torah, we seem to be tacking these violations onto the improper action the cohen is going to take. The prohibitions on adding or subtracting from the Torah seem not to have independent meaning, but are just an additional violation for someone who fails to do a ritual correctly.  Further, the halachic system needs to have a principle that prohibits misconstruing the scope of mitzvot, and it is hard to see any remnant of that notion in this example.

Our author says reaching an understanding of these mitzvot is especially difficult.  He encourages his son to put in the work required.  But the discussion of these mitzvot is not entirely satisfying.  The authorities with whom our author agrees do not articulate a clear difference between the cases they say violate these mitzvot and the cases they say do not violate these mitzvot.  More important, these mitzvot invite consideration of what changes in Jewish practice are legitimate within the halachic system and which changes are not.  We have seen the rabbis instruct us to ignore positive mitzvot d’oraita for reasons they consider important, but it is not clear what gives them the authority to do that.  This is a topic in need to serious discussion, but the discussion we have here does not touch that in a significant way.  The discussion of these mitzvot gives us no guidance as to what changes in Jewish practice are appropriate as organic change over time or in response to changed circumstance.

The source verse for mitzvot #467 and 468, Deut. 14:1, tells us not to cut ourselves or tear out our hair in mourning for the dead.  That delineates the main focus of each of these mitzvot, but the mitzvot have other applications also.

Mitzvah #467 prohibits Jews from cutting themselves in mourning, in idol worship, or for any other reason such as anger or frustration. Cutting oneself in mourning is punishable with malkot, whether the cut was made by hand or with an instrument. Each cut is punishable separately assuming the person doing the cutting was warned for each individual cut.  Also, someone cutting his or herself once in mourning for several dead people is punishable separately for each of the dead people being mourned.  Cutting oneself in idol worship is punishable with malkot only if the cut was made with an instrument, since that was what the idol worshippers did.  Ramban extends this notion to a prohibition not to mourn overmuch, although our author does not say how much it too much.  Cutting oneself for other reasons is not punishable, but the author points out that cutting oneself out of anger is a vile thing to do.  Now we might consider it a symptom of depression or mental illness.

Mitzvah #468 prohibits Jews from tearing their hair out in mourning. That includes removing hair anywhere on the head through any technique including using a depilatory; the crucial factor is the purpose.  Removing one’s head hair in mourning is punishable with malkot.  Each act of removing hair is punishable separately assuming the person doing the removal was warned for each.  Someone who dips his or her fingers into depilatory and applies each finger to a different spot on the head is punishable for each spot even if the person only got one warning, as each spot was removed simultaneously.  Also, someone removing his or her hair once in mourning for several dead people is punishable separately for each of the dead people being mourned.

The author includes three different notions by way of shoresh.  First, Jews who do these things are imitating the practices of their idolatrous neighbors.  Second, we should recognize that people dying is part of God’s plan for the world God made, and we should not mourn overmuch because of events God set in motion.  And finally, these are self-destructive vile, stupid things to do, and Jews should avoid doing stupid things. (There’s a statement with wide implications.) Only people with no understanding of God and His creations (like many women) would do such things. 

These reasons raise interesting questions.  What is the scope of the notion that Jews should avoid doing stupid things?  What should we think of Jews imitating practices of their neighbors if the neighbors are behaving well rather than badly?

The crucial language in the source verse that prohibits cutting oneself is “lo titgod’du,”   and the word titgod’du is related to the word “agudot,” groups. Our author cites Rambam for a very different understanding of that language:  we are prohibited from cutting our community into groups.  The point would seem to be that having different rules for different segments of the community would divide the community.  Rambam interprets this to mean that in a given community each beit din should co-ordinate with the others so as not to issue inconsistent rulings.  But that leaves the halachic decision making process politicized, forcing judges and courts to negotiate and ultimately to sign on to decisions they may not be convinced about.

Our author cites other authorities who disagree and think that different courts within a community may reach different decisions and promulgate different rules for parts of the community.  However, within a given group of scholars of similar levels of wisdom, the decision process should continue until a consensus is reached rather than ending in a situation where some authorities act one way and others act a different way.  If they cannot agree they should choose the stricter approached if the issue is d’oraita and the lenient approach if the issue is d’rabanan.  The author does not explain what constitutes a “group,” but under this approach members of each group will be governed by consistent halachic rules. There are problems with this approach though.  Several groups within one community could end up with different rulings.  The members of the deciding group end up signing on to a compromise instead of taking principled positions.  And this seems to violate the notion we saw earlier that courts should make halachic rulings by majority vote. 

The understanding of this mitzvah as a prohibition on dividing the community into groups with inconsistent practice raises issues about how the halachic decision making process can proceed with integrity without creating disunity within a given community.  In the days when the Sanhedrin functioned, it was the ultimate authority on halachah.  The community functioned under one unified law, but people who could not live with the results were forced out of the community.  And we know it was possible for the Sanhedrin to make mistakes in their judgment.  After the Sanhedrin stopped functioning decision making became less centralized.  Within a given community, there might be only one decision maker, and that has the same advantages and disadvantages as the Sanhedrin system had.  If there is more than one decision maker, for the community to be governed by the same rules the decision makers will have to compromise.  We have seen repeatedly that the Torah requires judges to decide halachic issues based on their honest understanding of the facts and the law.  But without the political process of compromise, the different decision makers may disagree and the community practice will be divided.

            Mitzvah #463 takes us back to the topic of court procedure, a topic we have not seen for quite a while.  In order for a court to get the facts, the court depends on witnesses telling the truth.  This mitzvah requires the court to examine the witnesses very carefully to try to determine whether they are telling the truth.  That means the court has to be patient and very careful.  A settled society needs a respected, reliable dispute resolution system.  Without that, violence will ensue as people take disputes into their own hands.  So the Torah emphasizes the need for deliberate justice, and this mitzvah is an obvious prerequisite.

            The normal procedure in a beit din is for the judges to question the witnesses. Each witness should be carefully questioned in three different ways.  Hakirot”: The court uses a list of seven questions to determine the exact time and place of the incident the witness is testifying about. “Drishot”: The court questions the witness in detail about the incident to hear testimony about the necessary facts.  B’dikot”: The judges ask about the circumstances surrounding the crucial facts.  These questions are at the discretion of the judges and are designed to help determine if the witness is being truthful. The judges might ask what people were wearing during the incident or what the location of the incident looked like.

This rubric applies in civil and criminal cases.  But as usual the rabbis were concerned about smooth flow of commerce and with facilitating loans which were crucial for poor people.  The rabbis relaxed the rules for witnesses testifying in civil cases even for d’rishot and hakirot.  In ordinary civil cases, for example loans, gifts or sales, the rabbis ruled that as long as the witnesses agreed that a loan was made for a specific amount in a specific year that testimony was accepted even if the witnesses disagreed about other facts such as the date or place. That testimony is sufficient even if the witnesses contradict each other about other facts, for example where or in what month the transaction happened. (This seems to be another situation of the rabbis overruling a d’oraita.) 

We saw earlier that two witnesses are required for a criminal conviction so the judges will also be concerned with whether the testimony of the two witnesses matches on the crucial facts. If one witness testified to something and the other witness contradicted that testimony, the contradiction is fatal to the testimony.  But sometimes one witness testifies to something and the other witness does not have any information about the same question.  If that happens in hakirot the testimony is void.  For b’dikot, though, if one or even both of the witnesses do not know the answer to a question the testimony remains valid.    

            Even after all the questioning the judges have to be convinced that the testimony they rely on it truthful.  If the judges suspect the witnesses are not telling the truth the judges can expand on the questioning trying to elicit contradictions that would disqualify the testimony.

            The author ends this mitzvah/essay by explaining just how important this mitzvah is.  If the judges do not question witnesses to obtain truthful testimony the judges will not reach accurate verdicts and justice will not prevail.  People will forfeit property they deserve to keep or be punished for things they did not do.  The judge who fails to question properly will facilitate the sin of others who get benefit from property they do not deserve.  But judges who question carefully and reach accurate verdicts are partners with God in building a settled, peaceful community.

            Mitzvah #469 prohibits our eating consecrated animals that became disqualified.  Consecrated animals can become disqualified in various ways, for example because the person caused a mum in the animal or because some disqualification arose in the sacrificial procedure after the animal was slaughtered. The author follows Rambam in Sefer haMitzvot, Neg. #140, who says someone who cuts the ear off a firstborn domestic mammal and eats it violates this mitzvah.  The firstborn animal is consecrated at birth, and cutting off its ear is creating a mum. (As the translator points out in footnote 2, that is somewhat problematic, but we will take our author at his word.)  Other examples of disqualified sacrifices Jews may not eat include piggul (the cohen processing the sacrifice had an improper intent) and notar (someone eats a sacrifice that is past its pull date.)  Eating meat from those sacrifices also violates this mitzvah.

            The source verse, Deut. 14:3, is much broader, telling us not to eat any abominable thing.  Our author cites the midrash halachah interpreting that broad language as meaning we should not eat disqualified sacrifices. The Biblical text then lists animals Jews may eat.  So it is reasonable to understand the source verse to double up as a prohibition on any food Jews are forbidden to eat, and our author cites the midrash halachah for that reading.

            The author says that someone who makes a mum in a consecrated animal and then eats a k’zayit of that animal is punishable with malkot.  The author does not say whether other violations of this mitzvah are punishable.  But given all the different things this mitzvah prohibits it comes as a surprise that someone could be punishable for any violation of this mitzvah.  We have seen several times that someone is not punishable for breaking a negative mitzvah that covers a wide array of situations.  Here, though, the primary meaning of the mitzvah is to prohibit eating sacrifices gone wrong or consecrated animals someone purposely disqualified by making a mum in them.  The author says violation remains punishable because the other included offenses are derived from the broad language of the source verse rather than from the primary meaning which is not specified in the source verse.  I am not sure how that argument makes sense.  The author may have some doubt himself; he ends this passage by saying the reader should “accept the truth from one who speaks it.” 

            The shoresh the author gives is not specific to this mitzvah.  Rather, he sees this as part of our being very careful about sacred things to help us take the Temple and its ritual will full seriousness. That way the Temple will succeed in inspiring us with awe so that when we pray for God to help us God will be more likely to comply. We have seen that theme before.

            The next several mitzvot help define what Jews may or may not eat.  Mitzvah #157 prohibits Jews from eating certain types of birds. Mitzvah #470 is a positive mitzvah to check and make sure birds we are eating are the types we may eat.  We saw a parallel mitzvah to examine the mammals we eat to make sure they have the signs of permissible animals in mitzvah #153.  The author does not add much to what he has already said in those two earlier mitzvot.

            The Torah lists birds Jews may not eat, and that implies Jews may eat birds that are not listed.  We might think Jews may also eat other flying animals, for example flying insects.  The source verse for mitzvah #471, Deut. 14:19, prohibits Jews from eating flying insects. Someone who ate a k’zayit of a flying insect, or a whole flying insect even if it was smaller than a k’zayit, is punishable with malkot.  There are several types of locusts that Jews may eat, and mitzvah #158 requires that we check the characteristics of those locusts before eating them.